Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
20F-H2020051-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2021-01-08
Administrative Law Judge
Kay Abramsohn
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Debra K. Morin
Counsel
—
Respondent
Solera Chandler Homeowners' Association, Inc.
Counsel
Lydia A. Perce Linsmeier, Esq.
Alleged Violations
CC&R Article 7, Section 7.1
Outcome Summary
The Administrative Law Judge concluded that Petitioner failed to sustain her burden to establish a violation by Solera of the governing documents regarding the maintenance of Areas of Association Responsibility (AREAS). The Tribunal dismissed the Petition and the subsequent Rehearing Appeal, finding Solera was in compliance with CC&R Article 7, Section 7.1.
Why this result: The Petitioner failed to prove by a preponderance of the evidence that Solera violated its governing documents. The CC&Rs grant the Board the authority to be the "sole judge" as to appropriate maintenance, repair, and replacement of all AREAS.
Key Issues & Findings
Failure to maintain Areas of Association Responsibility (AREAS) in good condition and repair at all times
Petitioner alleged that Solera failed to meet the maintenance standard required by CC&R Article 7, Section 7.1, citing various examples of disrepair, including weeds, sidewalks, and streets, and arguing the same standard applied to homeowners must apply to the HOA. The Tribunal rejected this, finding that the CC&Rs designate the Board as the sole judge regarding appropriate maintenance, and Petitioner failed to meet the burden of proof to show a violation.
Orders: The Administrative Law Judge concluded Solera was in compliance with its governing documents, including CC&R Article 7, Section 7.1, and the Petition/Rehearing Appeal was dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
CC&R Article 7, Section 7.1
CC&R Article 9, Section 9.5
A.R.S. § 32-2199.02(B)
Analytics Highlights
Topics: HOA, Maintenance, CC&Rs, Jurisdiction, Burden of Proof, Rehearing
Additional Citations:
A.R.S. § 32-2199.02(B)
A.R.S. § 41-1092.09
A.R.S. §§ 32-2199(2)
A.R.S. § 32-2199.01(D)
A.R.S. § 41-1092
A.R.S. § 32-2199.05
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Briefing Document: Morin v. Solera Chandler Homeowners’ Association, Inc.
Executive Summary
This briefing document synthesizes the findings and rulings from an administrative law case involving a homeowner, Debra K. Morin (Petitioner), and the Solera Chandler Homeowners’ Association, Inc. (Respondent/Solera). The case centered on the Petitioner’s allegations that the HOA failed to maintain common areas to the standards required by its own governing documents.
The Petitioner filed a two-issue petition, with the primary surviving issue being that Solera, its Board of Directors, and its management company were not maintaining the “Areas of Association Responsibility” (AREAS) in good condition and repair at all times. The Petitioner’s core argument was that the same stringent maintenance standard applied to individual homeowners must be equally applied to the HOA. She provided extensive photographic evidence of issues such as weeds, deteriorating sidewalks, street disrepair, and exposed wiring.
The HOA defended its actions by citing its established procedures for maintenance, including a committee review process, a scheduled Reserves plan, and the use of licensed contractors. Critically, Solera’s defense rested on provisions within its Declaration of Covenants, Conditions, and Restrictions (CC&Rs), which grant the Board of Directors the exclusive right to interpret the CC&Rs and designate it as the “sole judge as to the appropriate maintenance, repair and replacement” of all common areas.
Following an initial hearing, the Administrative Law Judge (ALJ) dismissed the petition, finding that the Petitioner had not met the burden of proof. The ALJ ruled that under the governing documents, the HOA Board has sole discretion in maintenance matters, and the Petitioner’s subjective opinions on how and when work should be done were not relevant to determining a violation. The Petitioner was granted a rehearing, where she presented additional evidence and arguments. However, the ALJ upheld the original decision, reaffirming that the CC&Rs grant the Board authority superseding that of an individual homeowner in determining appropriate maintenance. The petition was dismissed, and Solera was deemed the prevailing party in both instances.
Case Overview
Case Name
Debra K. Morin, Petitioner, v. Solera Chandler Homeowners’ Association, Inc., Respondent.
Case Number
No. 20F-H2020051-REL / 20F-H2020051-REL-RHG
Tribunal
Arizona Office of Administrative Hearings
Presiding Judge
Administrative Law Judge (ALJ) Kay Abramsohn
Petitioner
Debra K. Morin (represented herself)
Respondent
Solera Chandler Homeowners’ Association, Inc. (represented by Lydia Linsmeier, Esq.)
Petition Filed
On or about March 12, 2020
Initial Hearing
May 20, 2020 and July 15, 2020
Initial Decision
August 19, 2020 (Petition Dismissed)
Rehearing Hearing
December 16, 2020
Rehearing Decision
January 8, 2021 (Original Dismissal Upheld)
Petitioner’s Allegations and Arguments
The Petitioner, a resident of Solera for four years, filed a petition with the Arizona Department of Real Estate alleging violations of Solera’s Articles of Incorporation, By-Laws, CC&Rs, and Rules and Regulations (R&Rs). The allegations were organized into two primary issues.
Issue #1: Lack of Direct Communication
• Allegation: Solera, its Board, and its management company, Premier Management Company (Premier), “do not allow direct communication from homeowners.”
• Requested Relief: The Petitioner sought to have this “policy” rescinded.
• Outcome: This issue was connected to allegations of ethics violations based on the Board’s Code of Ethics, which the Tribunal determined was a non-governing document outside its jurisdiction. As a result, the Petitioner withdrew Issue #1 during the May 20, 2020 hearing.
Issue #2: Failure to Maintain Common Areas
• Allegation: Solera, its Board, and Premier “are not providing oversight to the General Manager in maintaining all Areas of Association Responsibility … in good condition and repair at all times.” Specific complaints included “uncontrolled weeds” and poor maintenance of the Community Center and other AREAS.
• Core Argument: The Petitioner’s central thesis was that the HOA must be held to the identical maintenance standard it imposes on homeowners. She argued that just as homeowners are required to maintain their lots “in a weed free condition 365 days a year,” the HOA has no discretion for delays in addressing maintenance issues in common areas.
• Requested Relief:
1. A public admission by the Board of its failures to follow governing documents.
2. The establishment of “direct communication rules” for reporting management deficiencies.
3. Compliance monitoring by the “Real Estate Board.”
Evidence and Specific Complaints
The Petitioner presented over 80 photographs at the initial hearing (growing to 310 by the rehearing) and multiple emails to document a wide range of perceived maintenance failures.
Maintenance Issue
Petitioner’s Specific Complaint
Uncontrolled weeds in granite rock locations throughout the community.
Community Center
Poor exterior condition.
Streets & Curbs
Deteriorating asphalt, cracking, and issues with sealing.
Sidewalks
Trip hazards and disintegrating cool-decking.
Drainage
Clogged storm drains and water pooling issues.
Landscaping
Exposed wiring for lights, exposed drip irrigation lines, and unremoved tree stumps.
Disrepair of boundary walls.
A key piece of evidence was a February 21, 2020 email exchange regarding weeds, which the ALJ found “representative of the overall situation.”
Petitioner’s Complaint: “This is NOT being done and our HOA looks disgusting with the continued presence of unchecked weeds inside and outside our community! No excuses, you cannot hold homeowners to a higher standard than you are willing to do for our HOA. You are on notice to rectify this violation immediately!”
General Manager’s Response: “…the landscape crew hula hoes and sprays daily, based on routine maintenance cycle and location of site work… Considering that we have 1,143,550 square feet of granite and 270,933 square feet of turf, the maintenance of weeds is a continuous and ongoing concern that is constantly being addressed.”
Petitioner’s Rebuttal: “YOUR response is just more excuses!… It appears that since it is not your personal money being spent, it is ok to have substandard work performance.”
Respondent’s Position and Defense
Solera HOA moved to dismiss the petition, arguing the issues were outside the Department’s jurisdiction and the requested relief could not be granted. While the motion was effectively denied after Issue #1 was withdrawn, Solera’s core defense remained consistent throughout the proceedings.
• Central Legal Argument: Solera contended that its Board of Directors is vested with the ultimate authority on maintenance matters by the community’s governing documents. It repeatedly cited CC&R Article 7, Section 7.1, which states the Board “shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS].”
• Interpretation Authority: The HOA also pointed to CC&R Article 9, Section 9.5, which gives it the “exclusive right to construe and interpret the provisions of the [CC&Rs],” with such interpretations being “final, conclusive and binding.”
• Operational Defense: Denise Frazier, Solera’s on-site general manager, testified that the HOA has established processes for maintenance.
◦ Committee Structure: A Building and Grounds Committee (B&G) reviews projects, which are then assessed by a Finance Committee before going to the Board for approval.
◦ Reserves Schedule: Solera maintains a Reserves schedule for large projects, such as sidewalk repairs (every 4 years), street repairs (every 8 years), and sealing cracks (every 2 years).
◦ Vendor Management: The Board relies on licensed contractors for specialized work, including landscaping, tree trimming (by two different companies for different heights), and stump grinding.
• Response to Specific Issues:
◦ Weeds: Frazier attributed the prevalence of weeds in early 2020 to an unusual amount of rain, creating “optimal” conditions. She noted that Solera had instructed landscapers to use dye in the weed spray to demonstrate to residents that spraying was occurring.
◦ Sidewalks: Frazier acknowledged a several-month delay in repairing a specific sidewalk area but stated that warning cones had been placed in the interim. Solera uses a ¼ inch standard for review but the City of Chandler’s ½ inch trip-hazard guideline for repairs.
◦ Exposed Wiring: This was explained as a temporary measure by landscapers to avoid cutting electrical and irrigation lines during tree and granite replacement projects.
Rulings and Legal Conclusions
The Administrative Law Judge dismissed the Petitioner’s case after the initial hearing and reaffirmed this dismissal after a rehearing, finding that the Petitioner failed to meet her legal burden of proof.
Key Legal Principles Applied
• Burden of Proof: The ALJ established that the Petitioner “bears the burden of proving by a preponderance of the evidence that a respondent has violated the planned community document(s’) provisions.”
• Supremacy of Governing Documents: The case was decided on the interpretation of the HOA’s CC&Rs, which function as the binding contract between the association and its members.
• Board’s Discretionary Authority: The central and decisive legal conclusion was that the HOA’s governing documents explicitly grant the Board superior authority over maintenance decisions.
◦ CC&R Article 7, Section 7.1 (“sole judge”) was interpreted to mean that only Solera is charged with determining when and how to perform maintenance, repair, and replacement in common areas.
◦ The ALJ concluded this provision “lifts the Board’s authority above that of a homeowner.” The Petitioner failed to provide legal support for her argument that the same maintenance standard must be applied to the Board as is applied to homeowners.
• Jurisdictional Limits: The Tribunal’s role is limited to adjudicating alleged violations of governing documents or statutes. The ALJ noted that a “homeowner’s dissatisfaction with management is not within the purview of this process or the jurisdiction of the Tribunal.”
Final Order
The ALJ concluded that Solera was in compliance with its governing documents, including the critical CC&R Article 7, Section 7.1. The Petitioner’s subjective opinions about the timeliness or quality of repairs were deemed irrelevant in the face of the Board’s contractual authority to be the “sole judge.”
Initial Order (August 19, 2020): “IT IS ORDERED Petitioner’s Petition is dismissed and Solera is deemed the prevailing party.”
Rehearing Order (January 8, 2021): “IT IS ORDERED that Solera is the prevailing party with regard to the Rehearing, and Petitioner’s appeal is dismissed.” The order was declared binding on the parties.
Study Guide – 20F-H2020051-REL-RHG
Study Guide: Morin v. Solera Chandler Homeowners’ Association, Inc.
This guide provides a review of the administrative case between Debra K. Morin (Petitioner) and the Solera Chandler Homeowners’ Association, Inc. (Respondent), as detailed in the Administrative Law Judge Decision of August 19, 2020, and the subsequent Rehearing Decision of January 8, 2021.
Short-Answer Quiz
Answer the following questions in 2-3 sentences each, based on the provided case documents.
1. Who were the primary parties involved in this case, and what were their respective roles?
2. What were the two main issues the petitioner, Debra K. Morin, raised in her initial petition filed on March 12, 2020?
3. Why was the petitioner’s first issue, regarding direct communication, withdrawn during the initial hearing?
4. What was the petitioner’s central argument regarding the maintenance standard that Solera should be held to?
5. According to the CC&Rs, what specific authority does the Solera Board have regarding maintenance, which formed the core of its defense?
6. What type of evidence did the petitioner primarily use to document her claims of poor maintenance in the Areas of Association Responsibility (AREAS)?
7. Who is Denise Frazier, and what role did she play in the proceedings?
8. What was the Administrative Law Judge’s final decision in the initial hearing on August 19, 2020?
9. On what grounds did the Commissioner of the Arizona Department of Real Estate grant the petitioner’s request for a rehearing?
10. What was the final outcome of the case after the rehearing decision was issued on January 8, 2021?
Answer Key
1. The primary parties were Debra K. Morin, the Petitioner and a homeowner, and the Solera Chandler Homeowners’ Association, Inc. (Solera), the Respondent. The case was heard by Administrative Law Judge Kay Abramsohn, and Solera was represented by Premier Management Company and its on-site general manager.
2. The petitioner’s Issue #1 alleged that Solera, its Board, and its management company “do not allow direct communication from homeowners.” Issue #2 alleged they were not providing oversight to the General Manager in maintaining all Areas of Association Responsibility in good condition and repair at all times.
3. The petitioner withdrew Issue #1 after it was determined that the Tribunal’s jurisdiction does not include interpreting or applying non-governing documents. Her complaint was based on the Solera Code of Ethics, which the Tribunal could not consider.
4. The petitioner argued that the same maintenance standard must be applied to Solera as is applied to homeowners. She contended that if homeowners are required by the governing documents to maintain their lots “in good condition and repair at all times,” then the HOA must be held to the identical standard for common areas (AREAS).
5. Solera’s defense centered on CC&R Article 7, Section 7.1, which states the Board “shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS].” Additionally, CC&R Article 9, Section 9.5 gives Solera the exclusive right to construe and interpret the CC&Rs.
6. The petitioner presented a large volume of photographic evidence, including over eighty photos for the initial hearing and more for the rehearing. These photographs were intended to document weeds, issues with sidewalks, exposed wiring, storm drains, and other maintenance problems in the common areas.
7. Denise Frazier is the on-site general manager for Solera and an employee of Premier Management Company. She testified on behalf of Solera regarding its maintenance schedules, procedures, reserve studies, and responses to the specific issues raised by the petitioner.
8. In the initial hearing, the Administrative Law Judge dismissed the petitioner’s petition and deemed Solera the prevailing party. The judge concluded that the petitioner had not demonstrated a violation of the governing documents, as the CC&Rs grant the Board sole judgment on maintenance matters.
9. The request for a rehearing was granted because the petitioner claimed there were irregularities in the proceedings, misconduct by the prevailing party, and that the decision was arbitrary, capricious, an abuse of discretion, and not supported by the evidence or contrary to law.
10. The rehearing affirmed the original decision. The Administrative Law Judge again concluded that the petitioner failed to sustain her burden of proof and that Solera was in compliance with its governing documents, specifically CC&R Article 7, Section 7.1. The appeal was dismissed, and Solera was again named the prevailing party.
Essay Questions
The following questions are designed to encourage deeper analysis of the case. No answers are provided.
1. Analyze the central legal conflict in this case by contrasting the petitioner’s interpretation of CC&R Article 7, Section 7.2 with the respondent’s defense based on CC&R Article 7, Section 7.1 and Article 9, Section 9.5. How did the Administrative Law Judge resolve this interpretive dispute?
2. Discuss the concept of jurisdiction as it applied to this case. Explain why certain arguments and evidence presented by the petitioner—such as the Board’s Code of Ethics, Premier Management Company standards, and City of Chandler ordinances—were deemed outside the Tribunal’s authority to consider.
3. Evaluate the petitioner’s strategy and use of evidence. Discuss the strengths and weaknesses of relying heavily on photographic evidence and detailed email complaints. Why did this “enormity” of evidence ultimately fail to meet the “preponderance of the evidence” standard?
4. Explain the significance of the phrase “sole judge” in CC&R Article 7, Section 7.1. How does this clause grant discretionary authority to the HOA Board, and how did it function as the key element in defeating the petitioner’s claim?
5. Trace the procedural history of the case, from the initial Petition and Motion to Dismiss through the original hearing, the Decision, the Rehearing Request, and the final Rehearing Decision. Identify the key rulings and turning points that determined the ultimate outcome.
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The judge presiding over the administrative hearing at the Arizona Office of Administrative Hearings. In this case, Judge Kay Abramsohn.
AREAS (Areas of Association Responsibility)
The common areas within the Solera development that the Homeowners’ Association is responsible for managing, maintaining, repairing, and replacing.
By-Laws
One of the governing documents for the Solera Chandler Homeowners’ Association.
CC&Rs (Declaration of Covenants, Conditions, and Restrictions)
A primary governing document for the Solera development, specifically the “Solera Declaration of Covenants, Conditions, and Restrictions for Springfield Lakes.” It outlines the rights and responsibilities of the homeowners and the association.
Denise Frazier
The on-site general manager for Solera, employed by Premier Management Company, who testified on behalf of the association regarding its maintenance operations.
Maintenance Standard
Defined in CC&R Article 1, Section 1.30 as “the standard of maintenance of Improvements established from time to time by the Board and/or the Architectural Review Committee in the Design Guidelines, or in the absence of any such standards, the standards of maintenance of Improvements generally prevailing through the Project.”
Motion to Dismiss
A formal request filed by Solera asking the Department of Real Estate to dismiss the petition on the grounds that the issues were outside the Department’s jurisdiction and the requested relief could not be granted.
Petitioner
The party who filed the petition initiating the legal action. In this case, Debra K. Morin, a homeowner in Solera.
Preponderance of the evidence
The burden of proof in this administrative proceeding. It is defined as proof that convinces the trier of fact that a contention is more probably true than not.
Premier Management Company
The management company hired by Solera to handle day-to-day operations of the community.
Project Documents
The set of governing documents for the community, defined as the CC&Rs, any supplemental declarations, the By-Laws, the R&Rs, and the Design Guidelines.
Respondent
The party against whom the petition is filed. In this case, the Solera Chandler Homeowners’ Association, Inc.
R&Rs (Rules and Regulations)
One of the governing documents for the Solera Chandler Homeowners’ Association.
Tribunal
A term used in the documents to refer to the Arizona Office of Administrative Hearings (OAH), where the hearing was conducted.
Blog Post – 20F-H2020051-REL-RHG
A Homeowner Took on Her HOA with Over 300 Photos of Evidence. The Reason She Lost Is a Warning for Everyone.
Introduction: The Familiar Fight
It’s a scenario familiar to millions of Americans living in planned communities. You receive a violation notice for a minor infraction on your property, yet when you look at the common areas your HOA is responsible for, you see overgrown weeds, cracked sidewalks, and general disrepair. It feels deeply unfair. Why are homeowners held to a strict standard while the association itself seems to neglect its duties?
This exact frustration drove Debra K. Morin to take on her Solera Chandler Homeowners’ Association. Armed with over 300 photographs documenting every weed and crack, she was certain her case was airtight. But she lost. The reasons why her case failed are a stark warning for any homeowner, revealing a legal battle that hinged entirely on the community’s binding contract: the Covenants, Conditions, and Restrictions (CC&Rs).
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The 5 Surprising Lessons from One Homeowner’s HOA Lawsuit
1. The “Sole Judge” Clause: Your HOA’s Ultimate Defense
The single most critical factor in this case was a single clause buried in the HOA’s governing documents. Ms. Morin argued that the HOA must “maintain in good condition and repair at all times” the common areas, believing this was the same standard applied to homeowners. However, the HOA pointed to CC&R Article 7, Section 7.1, which designates the HOA Board as the “sole judge as to the appropriate maintenance, repair and replacement” of all common areas.
This clause proved to be an almost impenetrable defense. In essence, the legal standard for maintenance was not what a “reasonable person” would consider good repair, but whatever the Board, in its exclusive judgment, decided was appropriate. Even with extensive photo evidence, the case failed because the contract Ms. Morin agreed to when she bought her home gave the Board the ultimate discretion. The Administrative Law Judge’s decision made this crystal clear:
“While the CC&Rs allow an owner to bring to the Board a complaint, the CC&Rs specify that the Board is the sole judge regarding appropriate maintenance, repair and replacement of all AREAS.”
This “sole judge” clause is the cornerstone of a much broader power imbalance, one that is codified throughout the governing documents.
2. A Power Imbalance Is Written into the Rules
While Ms. Morin argued for an equal standard of responsibility, the legal documents revealed a clear and intentional power imbalance. CC&R Article 9, Section 9.5, granted the HOA the “exclusive right to construe and interpret the provisions of the [CC&Rs],” and stated that its interpretation is “final, conclusive and binding.”
This structure legally transforms the relationship from a partnership of equals into one of administrator and subject, where one party holds the power of final interpretation. The governing documents describe in detail how the HOA can levy penalties against an owner for violations, but they provide no equivalent process for an owner to penalize the HOA for its failures. The judge in the rehearing decision explicitly summarized this built-in hierarchy:
“Thus, it is clear, that pursuant to the governing documents, the Board’s authority is lifted above that of a homeowner.”
With the Board’s authority so clearly established, Ms. Morin’s mountain of evidence was about to run into a contractual brick wall.
3. An “Enormity of Evidence” Isn’t Always the Right Evidence
Ms. Morin presented a significant volume of evidence, starting with over 80 photographs in the first hearing and later referencing what she called an “enormity” of evidence totaling over 300 pictures of weeds, damaged sidewalks, and other maintenance issues.
The critical legal distinction the judge made was that the photographs documented the condition of the common areas, but they did not prove a violation of the governing documents. The legal question was not, “Are there weeds?” The question was, “Did the Board violate a contract that explicitly makes it the sole judge of maintenance?” This demonstrates that in a contract dispute, the quality of evidence is defined by its relevance to the specific contractual terms, not its sheer volume.
4. “At All Times” Doesn’t Mean “Instantly”
A key part of the homeowner’s argument was that the HOA was failing to “maintain in good condition and repair at all times” by allowing maintenance issues to persist for months. In response, the HOA detailed its operational reality. The HOA provided evidence of long-term capital plans, such as sealing street cracks every two years and major sidewalk repairs on a four-year cycle. Daily tasks, like weed control, were handled by landscape crews operating on a continuous, rotating schedule across the large community.
From a legal perspective, “at all times” is interpreted through the lens of operational reasonableness for a large entity, not as a guarantee of immediate perfection. For an organization managing a vast property, this standard is met through consistent processes and schedules, not by fixing every issue the moment it is reported.
5. Your Dissatisfaction Is Not a Lawsuit
At its heart, the case was driven by Ms. Morin’s deep frustration. The judge recognized that her petition stemmed from a core belief that the Board and its General Manager were unresponsive and providing poor oversight. While these feelings may have been valid, they were not legally actionable on their own. The judge’s decision in the rehearing drew a firm line between a homeowner’s frustration and a legal claim:
“However, a homeowner’s dissatisfaction with management is not within the purview of this process or the jurisdiction of the Tribunal.”
This highlights a common misconception: while feelings of poor customer service are valid, they are legally irrelevant unless they can be tied to a specific, provable breach of the governing documents or a violation of state law.
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Conclusion: Read Before You Sign
The primary lesson from this case is the absolute authority of a community’s governing documents. In any dispute, the specific, written words of the CC&Rs—the contract you sign when you buy your home—will almost always outweigh a homeowner’s subjective standards, sense of fairness, or even a mountain of photographic evidence.
This case serves as a powerful reminder that from a contractual standpoint, the rules are not always designed to be “fair,” but to be enforceable. It leaves every homeowner with a critical question:
Before you complain about your HOA, have you read the rulebook they’re playing by—and that you agreed to?
The Administrative Law Judge issued an Order Vacating Hearing after the Petitioner voluntarily withdrew his request for rehearing.
Key Issues & Findings
Request for Rehearing Withdrawal
Petitioner requested a rehearing based on actions taken by the Respondent after the initial decision. When informed that a rehearing could only address matters occurring prior to the initial petition filing, Petitioner chose to withdraw the request for rehearing and stated intent to file a new petition challenging Respondent’s denial of his submission to build an addition to his house.
Orders: The hearing in this matter is vacated from the calendar of the Office of Administrative Hearings.
The Administrative Law Judge issued an Order Vacating Hearing after the Petitioner voluntarily withdrew his request for rehearing.
Key Issues & Findings
Request for Rehearing Withdrawal
Petitioner requested a rehearing based on actions taken by the Respondent after the initial decision. When informed that a rehearing could only address matters occurring prior to the initial petition filing, Petitioner chose to withdraw the request for rehearing and stated intent to file a new petition challenging Respondent’s denial of his submission to build an addition to his house.
Orders: The hearing in this matter is vacated from the calendar of the Office of Administrative Hearings.
Administrative Hearing Briefing: Archer v. PMPE Community Association, Inc.
Executive Summary
This briefing document outlines the key details and resolution of case number 20F-H2020063-REL-RHG, involving Petitioner Marc Archer and Respondent PMPE Community Association, Inc. On March 16, 2021, Administrative Law Judge Tammy L. Eigenheer issued an order vacating a scheduled rehearing. The core issue was procedural: the Petitioner’s request for rehearing was based on actions the Respondent took after the initial hearing’s decision, which falls outside the permissible scope of a rehearing. Upon being informed of this limitation, the Petitioner withdrew his request. He indicated his intent to file a new, separate petition to address the Respondent’s denial of his submission to build a house addition. The judge’s order is binding, with any appeal required to be filed in superior court within 35 days.
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Case Overview
I. Case Identification
Detail
Information
Case Name
Marc Archer, Petitioner, vs PMPE Community Association, Inc., Respondent
The scheduled hearing was a rehearing requested by the Petitioner, Marc Archer. The basis for his request centered on events that transpired after the conclusion of the initial hearing.
• Petitioner’s Grounds for Rehearing: The request was explicitly based on “actions taken by Respondent after the decision in the initial hearing had been issued.”
• Jurisdictional Limitation: The Petitioner was informed at the hearing that the scope of a rehearing is limited to matters that occurred before the original petition was filed. The document states: “When Petitioner was informed that the only issues that could be addressed in a rehearing on his petition were those matters that occurred prior to his petition being filed…”
• Subject of New Dispute: The specific post-decision action Archer sought to challenge was the “Respondent’s denial of his submission to build an addition to his house.”
B. Resolution and Outcome
Faced with the procedural limitations of a rehearing, the Petitioner altered his legal strategy, leading to the cancellation of the proceeding.
• Withdrawal of Request: The Petitioner “concluded that he wished to withdraw his request for a rehearing at that time.”
• Stated Intention: Archer “indicated that he would file a new petition to challenge Respondent’s denial of his submission to build an addition to his house.”
• Final Order: The judge issued a formal order vacating the hearing.
Legal Standing and Appeal Process
The order issued on March 16, 2021, carries legal weight and outlines specific requirements for any subsequent appeal.
• Binding Nature of the Order: The order is binding on the parties involved, as stipulated by Arizona Revised Statutes (A.R.S.) § 32-2199.02(B).
• Appeal Requirements: A party wishing to appeal the order must seek judicial review.
◦ Venue: The appeal must be filed with the superior court.
◦ Deadline: The filing must occur within thirty-five (35) days from the date the order was served upon the parties.
• Governing Statutes: The appeal process is prescribed by the following state statutes:
◦ A.R.S. § 41-1092.08(H)
◦ A.R.S. § 12-904(A)
◦ Title 12, Chapter 7, Article 6 of the Arizona Revised Statutes
Document Distribution
Copies of the “Order Vacating Hearing” were officially distributed via mail, email, or fax on March 16, 2021, to the following parties:
◦ Nicholas Nogami, Esq. (Carpenter Hazlewood Delgado & Bolen, LLP)
Study Guide – 20F-H2020063-REL
Study Guide: Case No. 20F-H2020063-REL-RHG
Short-Answer Quiz
Answer the following questions in two to three sentences each, based on the provided legal document.
1. Identify the primary parties involved in case No. 20F-H2020063-REL-RHG and state their respective roles.
2. What was the specific legal action taken by the Office of Administrative Hearings on March 16, 2021, and who was the presiding judge?
3. What was the original reason Marc Archer requested a rehearing?
4. Why was the Petitioner informed that his reason for a rehearing was invalid for the current proceedings?
5. What was the Petitioner’s final decision regarding his request for a rehearing, and what was the outcome for the scheduled hearing?
6. What future action did Marc Archer state he intended to take after withdrawing his request?
7. According to the document’s notice, what is the legal standing of the “Order Vacating Hearing” on the parties involved?
8. Describe the process and timeline an involved party must follow to appeal this order.
9. Who legally represented the Respondent, PMPE Community Association, Inc., in this matter?
10. To what primary state agency and specific official was a copy of this order distributed?
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Answer Key
1. The primary parties were Marc Archer, who served as the Petitioner, and the PMPE Community Association, Inc., which was the Respondent. The Petitioner is the party who filed the petition, and the Respondent is the party against whom the petition was filed.
2. On March 16, 2021, an “Order Vacating Hearing” was issued, removing the matter from the calendar of the Office of Administrative Hearings. The presiding judge who signed the order was Administrative Law Judge Tammy L. Eigenheer.
3. Marc Archer’s basis for requesting a rehearing was to address actions that the Respondent, PMPE Community Association, Inc., had taken after the decision in the initial hearing had already been issued.
4. The Petitioner was informed that his basis was invalid because a rehearing can only address matters that occurred prior to the filing of his original petition. The new actions he wished to contest would require a new, separate petition.
5. After being informed about the limitations of a rehearing, the Petitioner concluded that he wished to withdraw his request. As a result, the judge ordered that the hearing be vacated from the Office of Administrative Hearings’ calendar.
6. After withdrawing his request, Marc Archer indicated that he would file a new petition. This new petition would specifically challenge the Respondent’s denial of his submission to build an addition to his house.
7. The order is legally binding on the parties, as stated in the notice section referencing Arizona Revised Statute (A.R.S.) § 32-2199.02(B). This means both the Petitioner and the Respondent must legally comply with the order.
8. To appeal the order, a party must seek judicial review in the superior court. This appeal must be filed within thirty-five days from the date the order was served upon the parties, as prescribed by A.R.S. § 41-1092.08(H), title 12, chapter 7, article 6, and A.R.S. § 12-904(A).
9. The Respondent was represented by Nicholas Nogami, Esq. of the law firm Carpenter Hazlewood Delgado & Bolen, LLP.
10. A copy of the order was mailed or e-mailed to Judy Lowe, the Commissioner of the Arizona Department of Real Estate. Copies were also sent to several other email addresses associated with that department.
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Essay Questions
Develop a detailed essay answer for each of the following prompts, using only information found within the source document to support your analysis.
1. Analyze the procedural error made by the Petitioner that led to the hearing being vacated. Explain the critical distinction between the scope of a “rehearing” and a “new petition” as implied by the events in the order.
2. Based on the provided document, reconstruct the timeline of events. Begin with the implied initial hearing, describe the basis for the requested rehearing, detail the procedural clarification provided to the Petitioner, and outline the subsequent actions taken by both the Petitioner and the Administrative Law Judge.
3. Discuss the legal framework governing appeals for this type of administrative order. Cite the specific Arizona Revised Statutes (A.R.S.) mentioned in the document and explain the jurisdiction, requirements, and timeline for seeking judicial review.
4. Evaluate the communication process documented in the order. Identify all named recipients of the order, their titles or affiliations, and hypothesize why each party or entity would need to be formally notified of this decision.
5. Examine the role and authority of the Administrative Law Judge and the Office of Administrative Hearings in this specific dispute. How does the order demonstrate the limits of their jurisdiction and the procedural rules they enforce?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official, in this case Tammy L. Eigenheer, who presides over hearings at the Office of Administrative Hearings and has the authority to issue legally binding orders.
Appeal
The process by which a party requests that a higher court (in this case, the superior court) review the decision of a lower body (the Office of Administrative Hearings).
A.R.S. (Arizona Revised Statutes)
The collection of laws enacted by the Arizona state legislature. The document references A.R.S. § 32-2199.02(B), § 41-1092.08(H), and § 12-904(A) to establish the legal basis for the order’s finality and the appeal process.
Judicial Review
A type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body, such as the Office of Administrative Hearings.
Office of Administrative Hearings (OAH)
A state agency that conducts hearings for other state agencies, providing a neutral forum for disputes. In this case, it presided over the matter between Marc Archer and the PMPE Community Association, Inc.
Order Vacating Hearing
A formal directive from a judge that cancels a previously scheduled hearing and removes it from the court’s or agency’s calendar.
Petition
A formal written request submitted to a court or administrative body, initiating a legal case or making a specific application.
Petitioner
The party who files a petition with a court or administrative body. In this case, Marc Archer.
Rehearing
A second hearing of a case to consider issues that were part of the original petition. As clarified in the order, it cannot be used to address new matters that arose after the initial decision.
Respondent
The party against whom a petition is filed and who is required to respond to it. In this case, PMPE Community Association, Inc.
Superior Court
A state-level trial court of general jurisdiction. The document specifies that any appeal of the administrative order must be filed with the superior court.
Blog Post – 20F-H2020063-REL
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20F-H2020063-REL
2 sources
The provided sources are two copies of an Order Vacating Hearing issued by the Office of Administrative Hearings in the matter of Marc Archer vs PMPE Community Association, Inc. The order, signed by Administrative Law Judge Tammy L. Eigenheer on March 16, 2021, indicates that Petitioner Marc Archer requested a rehearing based on actions taken by the Respondent after the initial decision was issued. Because the rehearing was limited to matters that occurred before the original petition was filed, Mr. Archer chose to withdraw his request for a rehearing and announced his intention to file a new petition to challenge the community association’s denial of his proposal to build a house addition. Consequently, the hearing was vacated from the administrative calendar, and the order includes a notice regarding the process for judicial review if a party wished to appeal.
Why did Marc Archer withdraw his request for a rehearing on case 20F-H2020063-REL?
What were the specific procedural limitations governing the scope of the administrative rehearing?
How does this order relate to the Petitioner’s future challenge regarding his house addition?
Audio Overview
Video Overview Video Overview
Mind Map Mind Map
Reports Reports
Flashcards Flashcards
Quiz Quiz
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Case Participants
Petitioner Side
Marc Archer(petitioner) Appeared on his own behalf; Homeowner and member of PMPE
Respondent Side
Nicholas Nogami(HOA attorney) Carpenter, Hazelwood, Delgado & Bolen Represented Respondent PMPE Community Association, Inc.
Keith Kauffman(board member) PMPE Community Association, Inc. President, Treasurer, and AC member; testified at hearing
Neutral Parties
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings Presided over the main hearing and issued the order vacating rehearing
Velva Moses-Thompson(ALJ) Office of Administrative Hearings Ruled in a prior related evidentiary hearing
Judy Lowe(Commissioner) Arizona Department of Real Estate Addressee for transmission of orders
DGardner(ADRE Staff) Arizona Department of Real Estate Recipient of order via email
f. del sol(Staff) Signed transmittal of ALJ decision
c. serrano(Staff) Signed transmittal of Order Vacating Hearing
LDettorre(ADRE Staff) Arizona Department of Real Estate Recipient of order via email
AHansen(ADRE Staff) Arizona Department of Real Estate Recipient of order via email
djones(ADRE Staff) Arizona Department of Real Estate Recipient of order via email
ncano(ADRE Staff) Arizona Department of Real Estate Recipient of order via email
Other Participants
Carlotta L Turman(unknown) Carpenter, Hazelwood, Delgado & Bolen Listed in transmission details associated with PMPE counsel
The Administrative Law Judge concluded that the Respondent HOA acted in compliance with the CC&R’s and was the prevailing party, finding that the HOA had the right to enter property to correct emergency conditions, but was under no obligation to do so. The petition was dismissed following the rehearing.
Why this result: Petitioner failed to sustain her burden to establish a violation by Respondent of Article XII Section 6, and Article XIII Section 1(d) and 4 or the CC&R’s. The ALJ noted that the relief sought (forcing access) may require a different venue or party.
Key Issues & Findings
Whether 10,000 North Central Homeowners Association violated the CCR’s Article XII, Section 6 & Article XIII, Section 1(d) & 4
Petitioner filed a single-issue petition alleging the HOA violated CC&Rs by refusing to grant access to a neighboring property to investigate and remedy a water leak causing damage. The ALJ found the HOA had the right, but not the obligation, to enter the property.
Orders: Petitioner’s petition was denied in the initial decision (August 17, 2020). Upon rehearing, the Administrative Law Judge concluded that there was no violation by the Respondent, and the Respondent was the prevailing party; Petitioner’s appeal was dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 41-2198.01
Analytics Highlights
Topics: HOA Dispute, CC&R Enforcement, Right of Entry, Drainage Issues, Rehearing
Briefing Document: Abbass v. 10000 North Central Homeowners Association
Executive Summary
This document synthesizes the findings from two Administrative Law Judge (ALJ) Decisions concerning a dispute between homeowner Susan E. Abbass (Petitioner) and the 10000 North Central Homeowners Association (Respondent). The core of the dispute was the Petitioner’s request for the Association to exercise its authority under the community’s Covenants, Conditions, and Restrictions (CC&Rs) to enter a neighboring property to inspect the source of a persistent water leak affecting the Petitioner’s home.
The ALJ ultimately denied the Petitioner’s petition and subsequent appeal. The central conclusion across both hearings was that while the Association’s CC&Rs grant it the right to enter a member’s property under specific circumstances (such as for inspections or emergencies), they do not impose an obligation or duty to do so. The Petitioner failed to meet the burden of proof required to demonstrate that the Association violated any provision of the CC&Rs. The ALJ characterized the situation as a “neighbor versus neighbor dispute” and determined that the Association acted within its business judgment by requiring more definitive proof of the leak’s source before authorizing entry, citing concerns over potential liability.
Case Overview
This matter involves a single-issue petition filed by a homeowner against her Homeowners Association (HOA) with the Arizona Department of Real Estate. The case was referred to the Office of Administrative Hearings for adjudication.
Case Details
Information
Case Number
20F-H2020057-REL
Petitioner
Susan E. Abbass
Respondent
10000 North Central Homeowners Association
Administrative Law Judge
Adam D. Stone
Initial Hearing Date
July 28, 2020
Rehearing Date
November 24, 2020
Core Allegation
The Association violated CC&Rs Article XII, Section 6 and Article XIII, Sections 1(d) & 4 by failing to grant access to a neighbor’s property to investigate a water leak.
Chronology of Key Events
1. November 14, 2019: Ronald Pick, residing with the Petitioner, discovers the home office carpet is “completely soaked with water.” He determines the drainage issue originates from the neighboring property.
2. November 2019: After the neighbor refuses to cooperate, the Petitioner contacts Robert Kersten, the Association’s Community Manager. Kersten sends a violation notice to the neighbor.
3. January 2020: The Association’s Board of Directors informs Kersten that they will handle the matter directly, and he ceases interaction with the Petitioner.
4. May 5, 2020: The Petitioner files a single-issue petition against the Association with the Arizona Department of Real Estate, paying a $500.00 fee.
5. July 28, 2020: The initial evidentiary hearing is held before an Administrative Law Judge.
6. August 17, 2020: The ALJ issues a decision denying the Petitioner’s petition, finding she failed to meet her burden of proof.
7. August 31, 2020: The Petitioner files a request for a rehearing.
8. October 14, 2020: The Commissioner of the Arizona Department of Real Estate grants the request for a rehearing.
9. November 24, 2020: The rehearing is conducted.
10. December 1, 2020: The ALJ issues a final decision, again finding for the Respondent and dismissing the Petitioner’s appeal.
Summary of Arguments
Petitioner’s Position (Susan E. Abbass)
• The Problem: A water leak originating from a neighboring property caused damage, with recurring water intrusion during rainfall.
• Attempted Resolution: The Petitioner and Mr. Pick attempted to work with the neighbor, who was uncooperative on the advice of her insurance company. They then sought the Association’s help to gain access for inspection.
• Core Argument: The Petitioner argued that the water leak constituted an “emergency situation” and that the Association had an obligation under the CC&Rs to grant access to the neighbor’s property for inspection.
• Evidence Provided: The Petitioner provided the Association with all available evidence, including a report from the City of Phoenix.
• Financial Responsibility: The Petitioner offered to pay for a geotechnical engineer and any associated costs for the inspection.
• Legal Basis: The Petitioner claimed the Association violated CC&Rs Article XII, Section 6 and Article XIII, Sections 1(d) and 4.
Respondent’s Position (10000 North Central HOA)
• Actions Taken: The Association, through its manager Robert Kersten, acknowledged the complaint and sent a violation notice to the neighbor regarding improper vegetation. They also contacted the neighbor to request access.
• Core Argument: The Association contended that the CC&Rs do not allow its manager to authorize entry “whenever they feel like it.” Entry requires “reasonable justification” and “some type of proof,” which the Board determined had not been provided by the Petitioner.
• Business Judgment and Liability: Respondent’s counsel argued the Board was exercising its business judgment to avoid potential liability that could arise from granting third-party access to a member’s property without sufficient cause.
• Neighbor’s Actions: The Association stated that, to its knowledge, the neighbor’s insurance company inspected the water flow and determined the neighbor was not at fault.
• Evidence Provided: At the rehearing, the Association submitted photographs (Exhibits K, L, M) purportedly showing a fixed pipe and drainage flowing away from the Petitioner’s property.
Analysis of CC&R Provisions
The dispute centered on the interpretation of specific articles within the Association’s Covenants, Conditions, and Restrictions.
Article
Provision Summary
XII, Section 6
Easement in Favor of Association: Grants the Association and its agents the right to enter Lots for specific purposes, including: (a) inspection of owner maintenance, (c) correction of emergency conditions, and (d) exercising its powers and duties.
XIII, Section 1(d)
Drainage Flow: States that “nothing shall be erected, planted or maintained to impede or interrupt said or normal drainage flow” in patio or yard areas that have been graded for drainage.
XIII, Section 4
Owner Maintenance and Association’s Right to Enter: Requires owners to keep their Lot in good order and repair. If an owner fails, the Association “shall have the right to enter upon said Lot or Patio to correct drainage and to repair, maintain and restore the Lot…” after providing notice to the owner and receiving approval from the Board.
Administrative Law Judge’s Findings and Rulings
The ALJ’s conclusions were consistent across both the initial decision and the rehearing. The Petitioner bore the burden of proving by a “preponderance of the evidence” that the Association violated the CC&Rs.
Key Findings from the Initial Decision (August 17, 2020)
• Right vs. Obligation: The judge’s central finding was that the Petitioner was “incorrect that the Respondent has an ‘obligation’ to enter the property.” The CC&Rs grant the Association a right to enter but do not impose a duty or obligation to do so.
• Lack of “True Emergency”: While Mr. Pick testified about water damage during rain, the judge noted a lack of testimony on the extent of the damage. The fact that over eight months had passed since the initial leak discovery indicated there was “no true emergency situation.”
• Stalemate and Business Judgment: The judge acknowledged the “stalemate” where the Petitioner could not obtain more proof without access, and the Association would not grant access without more proof. The Association’s decision was framed as an exercise of business judgment based on its determination that the submitted proof did not meet its standard for entry.
• Nature of the Dispute: The matter was characterized as a “neighbor versus neighbor dispute,” implying the Association was not the proper party to compel action.
• Conclusion: The Petitioner failed to meet her burden of proof.
Key Findings from the Rehearing Decision (December 1, 2020)
• No New Evidence: The Petitioner “failed to provide new evidence or witness testimony” that would alter the original conclusion.
• Petitioner’s Concession: During the rehearing, the Petitioner “agreed that Respondent does not have an obligation to enter the property, only the right.”
• Respondent’s Compliance: The ALJ concluded that the Association “acted in compliance with the CC&Rs.” It was “receptive to the information provided by Petitioner and requested the neighboring property owners cooperation.” The lack of the neighbor’s full cooperation did not constitute a violation by the Association.
• Jurisdictional Limits: The judge stated that under statute A.R.S. § 32-2199.02(A), an ALJ can only order a party to abide by the community documents. The judge “cannot force the neighbor or the Respondent to grant access to the property.”
• Incorrect Venue: The decision noted that “it appears that Petitioner has or the incorrect venue and possibly party to grant the relief for which it seeks.”
Final Disposition
IT IS ORDERED that Petitioner’s petition in this matter be denied. The final decision from the rehearing on December 1, 2020, named the Respondent as the prevailing party and dismissed the Petitioner’s appeal. This order is binding on the parties, with any further appeal requiring judicial review in the superior court within thirty-five days of the order being served.
Study Guide – 20F-H2020057-REL-RHG
Study Guide: Abbass v. 10000 North Central Homeowners Association
This study guide provides a review of the administrative case involving Petitioner Susan E. Abbass and Respondent 10000 North Central Homeowners Association. It covers the initial hearing and the subsequent rehearing concerning an alleged violation of the Association’s governing documents. The materials are designed to test and deepen understanding of the case facts, legal arguments, and final rulings.
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Short-Answer Quiz
Instructions: Answer the following questions in 2-3 complete sentences, based on the information provided in the case documents.
1. Who are the primary parties in this case, and what are their respective roles?
2. What specific event on November 14, 2019, initiated the dispute between the Petitioner and her neighbor?
3. Identify the specific articles and sections of the Covenants, Conditions, and Restrictions (CC&Rs) that the Petitioner alleged the Respondent violated.
4. According to the Respondent’s property manager, Robert Kersten, what was required before the Association could authorize entry onto a member’s property?
5. What was the central legal distinction made by the Administrative Law Judge regarding the Association’s power to enter a property under the CC&Rs?
6. What was the outcome of the initial hearing on July 28, 2020, and what was the judge’s primary reason for this decision?
7. On what grounds did the Petitioner file her request for a rehearing after the initial decision?
8. Did the Petitioner present new evidence or testimony at the rehearing that changed the outcome? Explain briefly.
9. According to the Administrative Law Judge, what is the legal definition of “preponderance of the evidence”?
10. What limitations on the Administrative Law Judge’s authority are described in A.R.S. § 32-2199.02(A), and how did this affect the final order?
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Answer Key
1. The primary parties are Susan E. Abbass, the Petitioner, and the 10000 North Central Homeowners Association, the Respondent. The Petitioner is a property owner and Association member who filed a complaint, while the Respondent is the homeowners’ association responsible for governing the community.
2. On or about November 14, 2019, Ronald Pick, who resides with the Petitioner, discovered that the carpet in their home office was completely soaked with water. He ultimately determined the drainage problem originated from the neighboring property, which sparked the dispute.
3. The Petitioner alleged that the Respondent violated Article XII, Section 6, as well as Article XIII, Sections 1(d) and 4 of the CC&Rs. These sections relate to the Association’s easement rights for inspection and maintenance, rules against impeding drainage flow, and an owner’s duty to keep their lot in good repair.
4. Robert Kersten testified that the Association could not authorize entrance onto another’s property “whenever they feel like it.” He stated there must be “reasonable justification” and “some type of proof” to allow for access, which he determined the Petitioner had not provided.
5. The Administrative Law Judge determined that the CC&Rs give the Respondent the right to enter a property for specific purposes, but they do not impose an obligation to do so. This distinction was crucial, as the judge concluded the Association was not required to act, even if it had the authority.
6. In the initial hearing, the judge denied the Petitioner’s petition. The primary reason was that the Petitioner failed to meet her burden of proof, by a preponderance of the evidence, that the Respondent had violated a provision of the CC&Rs.
7. The Petitioner requested a rehearing on the grounds that the initial findings of fact were “arbitrary, capricious, or an abuse of discretion” and that the decision was “not supported by the evidence or is contrary to law.”
8. No, the Petitioner failed to provide new evidence or witness testimony at the rehearing that demonstrated a violation by the Respondent. The judge concluded that the Petitioner again failed to sustain her burden of proof, leading to the dismissal of her appeal.
9. The judge cites two definitions for “preponderance of the evidence.” The first is “such proof as convinces the trier of fact that the contention is more probably true than not.” The second, from Black’s Law Dictionary, is “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
10. A.R.S. § 32-2199.02(A) states that the judge “may order any party to abide by the statutes, condominium documents, community documents or contract provision at issue.” The judge interpreted this to mean he could not force the Respondent or the neighbor to grant access to the property, as his only power was to order compliance with the CC&Rs, which had not been violated.
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Essay Questions
Instructions: The following questions are designed for longer, essay-style responses. Use the details from the case documents to construct a thorough and well-supported argument for each prompt. (Answers not provided).
1. Analyze the concept of “burden of proof” as it applies to this case. Explain what the Petitioner needed to demonstrate to prevail and detail the specific reasons cited by the Administrative Law Judge for why she failed to meet this standard in both the initial hearing and the rehearing.
2. Discuss the legal and practical reasoning behind the Respondent’s decision not to grant access to the neighboring property. Evaluate the “business judgment” defense, the potential liability concerns, and the characterization of the issue as a “neighbor versus neighbor dispute.”
3. Examine the distinction between a “right” and an “obligation” as interpreted by the Administrative Law Judge from the CC&Rs. How did this interpretation become the central pillar of the decisions in this case, and what does it reveal about the scope of a homeowners’ association’s power?
4. Trace the procedural history of this case from the initial filing of the petition to the final order after the rehearing. Identify each key date and procedural step, and explain the purpose and outcome of each stage of the administrative hearing process.
5. Imagine you are advising the Petitioner after the final decision. Based on the judge’s conclusions that the Petitioner was in the “incorrect venue and possibly party,” what alternative legal avenues might she pursue to resolve the underlying water leak issue? Use evidence from the text to support your suggestions.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings, hears evidence, and makes legal rulings and decisions, in this case for the Office of Administrative Hearings.
Arizona Department of Real Estate
The state agency in Arizona authorized by statute to receive and decide petitions for hearings involving disputes between homeowners and their homeowners’ associations.
Burden of Proof
The duty of a party in a legal proceeding to prove a disputed assertion or charge. In this case, the Petitioner had the burden to prove her claims by a preponderance of the evidence.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing legal documents that set up the rules for a planned community or subdivision. The Petitioner alleged the Respondent violated specific articles within these documents.
Easement
A legal right to use another person’s land for a specific, limited purpose. In this case, Article XII Section 6 of the CC&Rs granted an easement to the Association for purposes such as inspection, maintenance, and correction of emergencies.
Jurisdiction
The official power to make legal decisions and judgments. The Arizona Department of Real Estate and the Office of Administrative Hearings had jurisdiction to hear and decide this case pursuant to Arizona Revised Statutes.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona responsible for conducting evidentiary hearings for other state agencies, providing an impartial forum for disputes like the one in this case.
Petitioner
The party who files a petition initiating a legal action. In this matter, Susan E. Abbass was the Petitioner.
Preponderance of the Evidence
The standard of proof in most civil cases. It is defined in the text 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.”
Prevailing Party
The party who wins a lawsuit or legal action. In the rehearing, the Administrative Law Judge concluded that the Respondent was the prevailing party.
Rehearing
A second hearing of a case to reconsider the issues and decision. A rehearing was granted in this case after the Petitioner claimed the initial decision was arbitrary, capricious, or not supported by evidence.
Respondent
The party against whom a petition is filed. In this matter, the 10000 North Central Homeowners Association was the Respondent.
Blog Post – 20F-H2020057-REL-RHG
Study Guide: Abbass v. 10000 North Central Homeowners Association
This study guide provides a review of the administrative case involving Petitioner Susan E. Abbass and Respondent 10000 North Central Homeowners Association. It covers the initial hearing and the subsequent rehearing concerning an alleged violation of the Association’s governing documents. The materials are designed to test and deepen understanding of the case facts, legal arguments, and final rulings.
——————————————————————————–
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 complete sentences, based on the information provided in the case documents.
1. Who are the primary parties in this case, and what are their respective roles?
2. What specific event on November 14, 2019, initiated the dispute between the Petitioner and her neighbor?
3. Identify the specific articles and sections of the Covenants, Conditions, and Restrictions (CC&Rs) that the Petitioner alleged the Respondent violated.
4. According to the Respondent’s property manager, Robert Kersten, what was required before the Association could authorize entry onto a member’s property?
5. What was the central legal distinction made by the Administrative Law Judge regarding the Association’s power to enter a property under the CC&Rs?
6. What was the outcome of the initial hearing on July 28, 2020, and what was the judge’s primary reason for this decision?
7. On what grounds did the Petitioner file her request for a rehearing after the initial decision?
8. Did the Petitioner present new evidence or testimony at the rehearing that changed the outcome? Explain briefly.
9. According to the Administrative Law Judge, what is the legal definition of “preponderance of the evidence”?
10. What limitations on the Administrative Law Judge’s authority are described in A.R.S. § 32-2199.02(A), and how did this affect the final order?
——————————————————————————–
Answer Key
1. The primary parties are Susan E. Abbass, the Petitioner, and the 10000 North Central Homeowners Association, the Respondent. The Petitioner is a property owner and Association member who filed a complaint, while the Respondent is the homeowners’ association responsible for governing the community.
2. On or about November 14, 2019, Ronald Pick, who resides with the Petitioner, discovered that the carpet in their home office was completely soaked with water. He ultimately determined the drainage problem originated from the neighboring property, which sparked the dispute.
3. The Petitioner alleged that the Respondent violated Article XII, Section 6, as well as Article XIII, Sections 1(d) and 4 of the CC&Rs. These sections relate to the Association’s easement rights for inspection and maintenance, rules against impeding drainage flow, and an owner’s duty to keep their lot in good repair.
4. Robert Kersten testified that the Association could not authorize entrance onto another’s property “whenever they feel like it.” He stated there must be “reasonable justification” and “some type of proof” to allow for access, which he determined the Petitioner had not provided.
5. The Administrative Law Judge determined that the CC&Rs give the Respondent the right to enter a property for specific purposes, but they do not impose an obligation to do so. This distinction was crucial, as the judge concluded the Association was not required to act, even if it had the authority.
6. In the initial hearing, the judge denied the Petitioner’s petition. The primary reason was that the Petitioner failed to meet her burden of proof, by a preponderance of the evidence, that the Respondent had violated a provision of the CC&Rs.
7. The Petitioner requested a rehearing on the grounds that the initial findings of fact were “arbitrary, capricious, or an abuse of discretion” and that the decision was “not supported by the evidence or is contrary to law.”
8. No, the Petitioner failed to provide new evidence or witness testimony at the rehearing that demonstrated a violation by the Respondent. The judge concluded that the Petitioner again failed to sustain her burden of proof, leading to the dismissal of her appeal.
9. The judge cites two definitions for “preponderance of the evidence.” The first is “such proof as convinces the trier of fact that the contention is more probably true than not.” The second, from Black’s Law Dictionary, is “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
10. A.R.S. § 32-2199.02(A) states that the judge “may order any party to abide by the statutes, condominium documents, community documents or contract provision at issue.” The judge interpreted this to mean he could not force the Respondent or the neighbor to grant access to the property, as his only power was to order compliance with the CC&Rs, which had not been violated.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for longer, essay-style responses. Use the details from the case documents to construct a thorough and well-supported argument for each prompt. (Answers not provided).
1. Analyze the concept of “burden of proof” as it applies to this case. Explain what the Petitioner needed to demonstrate to prevail and detail the specific reasons cited by the Administrative Law Judge for why she failed to meet this standard in both the initial hearing and the rehearing.
2. Discuss the legal and practical reasoning behind the Respondent’s decision not to grant access to the neighboring property. Evaluate the “business judgment” defense, the potential liability concerns, and the characterization of the issue as a “neighbor versus neighbor dispute.”
3. Examine the distinction between a “right” and an “obligation” as interpreted by the Administrative Law Judge from the CC&Rs. How did this interpretation become the central pillar of the decisions in this case, and what does it reveal about the scope of a homeowners’ association’s power?
4. Trace the procedural history of this case from the initial filing of the petition to the final order after the rehearing. Identify each key date and procedural step, and explain the purpose and outcome of each stage of the administrative hearing process.
5. Imagine you are advising the Petitioner after the final decision. Based on the judge’s conclusions that the Petitioner was in the “incorrect venue and possibly party,” what alternative legal avenues might she pursue to resolve the underlying water leak issue? Use evidence from the text to support your suggestions.
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings, hears evidence, and makes legal rulings and decisions, in this case for the Office of Administrative Hearings.
Arizona Department of Real Estate
The state agency in Arizona authorized by statute to receive and decide petitions for hearings involving disputes between homeowners and their homeowners’ associations.
Burden of Proof
The duty of a party in a legal proceeding to prove a disputed assertion or charge. In this case, the Petitioner had the burden to prove her claims by a preponderance of the evidence.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing legal documents that set up the rules for a planned community or subdivision. The Petitioner alleged the Respondent violated specific articles within these documents.
Easement
A legal right to use another person’s land for a specific, limited purpose. In this case, Article XII Section 6 of the CC&Rs granted an easement to the Association for purposes such as inspection, maintenance, and correction of emergencies.
Jurisdiction
The official power to make legal decisions and judgments. The Arizona Department of Real Estate and the Office of Administrative Hearings had jurisdiction to hear and decide this case pursuant to Arizona Revised Statutes.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona responsible for conducting evidentiary hearings for other state agencies, providing an impartial forum for disputes like the one in this case.
Petitioner
The party who files a petition initiating a legal action. In this matter, Susan E. Abbass was the Petitioner.
Preponderance of the Evidence
The standard of proof in most civil cases. It is defined in the text 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.”
Prevailing Party
The party who wins a lawsuit or legal action. In the rehearing, the Administrative Law Judge concluded that the Respondent was the prevailing party.
Rehearing
A second hearing of a case to reconsider the issues and decision. A rehearing was granted in this case after the Petitioner claimed the initial decision was arbitrary, capricious, or not supported by evidence.
Respondent
The party against whom a petition is filed. In this matter, the 10000 North Central Homeowners Association was the Respondent.
Case Participants
Petitioner Side
Susan E Abbass(petitioner)
Ronald Pick(witness) witness for Petitioner
Respondent Side
Blake Johnson(HOA attorney) Brown Olcott, PLLC
Robert Kersten(property manager) witness for Respondent
Kelly Oetinger(HOA attorney) Brown Olcott, PLLC
Neutral Parties
Adam D. Stone(ALJ)
Judy Lowe(Commissioner) Arizona Department of Real Estate
Following a rehearing based on newly discovered evidence, the Administrative Law Judge found that Respondent violated A.R.S. § 33-1258(A) by failing to timely provide records it possessed. Respondent was ordered to reimburse the Petitioner $500.00 for the filing fee and pay a $2,500.00 civil penalty to the Department of Real Estate.
Key Issues & Findings
Failure to make association financial and other records reasonably available for examination/provide copies within ten business days.
Petitioner alleged Respondent violated A.R.S. § 33-1258 by failing to provide requested records (including bank statements and contracts) following a formal request on May 1, 2020. The Administrative Law Judge, in the rehearing, found that the evidence showed Respondent was in possession of bank statements and two signed contracts at the time of the request, contradicting prior testimony, thereby establishing a violation of the statute.
Orders: Respondent was ordered to pay Petitioner $500.00 for the filing fee reimbursement and pay a civil penalty of $2,500.00 to the Department of Real Estate, both payments due within 30 days.
Following a rehearing based on newly discovered evidence, the Administrative Law Judge found that Respondent violated A.R.S. § 33-1258(A) by failing to timely provide records it possessed. Respondent was ordered to reimburse the Petitioner $500.00 for the filing fee and pay a $2,500.00 civil penalty to the Department of Real Estate.
Key Issues & Findings
Failure to make association financial and other records reasonably available for examination/provide copies within ten business days.
Petitioner alleged Respondent violated A.R.S. § 33-1258 by failing to provide requested records (including bank statements and contracts) following a formal request on May 1, 2020. The Administrative Law Judge, in the rehearing, found that the evidence showed Respondent was in possession of bank statements and two signed contracts at the time of the request, contradicting prior testimony, thereby establishing a violation of the statute.
Orders: Respondent was ordered to pay Petitioner $500.00 for the filing fee reimbursement and pay a civil penalty of $2,500.00 to the Department of Real Estate, both payments due within 30 days.
Topics: HOA records request, A.R.S. 33-1258, Rehearing, Civil Penalty, Possession of Records
Additional Citations:
A.R.S. § 33-1258
A.R.S. § 32-2199.02
A.A.C. R2-19-119
Video Overview
Audio Overview
Decision Documents
20F-H2020064-REL Decision – 823263.pdf
Uploaded 2025-10-09T03:35:33 (108.6 KB)
Briefing Doc – 20F-H2020064-REL
Briefing Document: Babington v. Park Scottsdale II Townhouse Corporation
Executive Summary
This document synthesizes the findings from two administrative hearings concerning a records request dispute between homeowner Nancy L. Babington (Petitioner) and the Park Scottsdale II Townhouse Corporation (Respondent). The case, No. 20F-H2020064-REL, culminated in a reversal of an initial ruling, finding the Respondent in violation of Arizona law A.R.S. § 33-1258 for failing to provide association records within the statutory timeframe.
The initial hearing on August 28, 2020, resulted in a denial of the petition. The Respondent successfully argued that it could not produce the requested documents because they were not in its possession, largely due to a dispute with a former management company. However, a rehearing was granted after the Petitioner discovered new evidence.
The rehearing on March 4, 2021, established that the Respondent, through its management company Associa Arizona, was in possession of key requested documents—specifically bank statements and signed contracts—at the time of the initial request. Evidence revealed the bank statements were held at a central corporate office in Texas and were not retrieved, while signed contracts had not been forwarded to the management company by board members. The Administrative Law Judge found this directly contradicted the Respondent’s initial defense.
As a result, the Administrative Law Judge reversed the earlier decision, ordering the Respondent to reimburse the Petitioner’s $500 filing fee and imposing a $2,500 civil penalty payable to the Arizona Department of Real Estate. The case underscores an association’s responsibility to produce all records in its possession, regardless of physical location within the corporate structure, and affirms the court’s authority to levy penalties for violations.
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1. Case Overview
• Case Number: 20F-H2020064-REL
• Petitioner: Nancy L. Babington
• Respondent: Park Scottsdale II Townhouse Corporation
• Core Allegation: Violation of A.R.S. § 33-1258, which mandates that a condominium owners’ association must make its financial and other records reasonably available for examination by a member within ten business days of a request.
• Hearings Conducted:
◦ Initial Hearing: August 28, 2020
◦ Rehearing: March 4, 2021
• Presiding Administrative Law Judge: Tammy L. Eigenheer
2. Chronology of the Dispute
The dispute originated from difficulties following a change in the Respondent’s management company and subsequent records requests by the Petitioner.
• June-July 2019: The previous management company, Community Management & Consulting, LLC (CMC), terminated its agreement with the Respondent. A “financial disagreement” led to CMC withholding records, complicating the transition.
• Post-July 2019: Respondent hired Associa Arizona as its new management company. Associa and the Respondent’s counsel attempted to obtain the withheld records from CMC.
• April 29, 2020: After previous attempts to get information, Petitioner Nancy L. Babington sent a formal email to Associa and the Respondent’s Board of Directors. In the email, she stated:
• May 1, 2020: Linda Parker, Director of Client Services with Associa, replied, stating the request was not specific and asked the Petitioner to identify the exact records needed.
• May 1, 2020: The Petitioner responded with a detailed list of nine specific items:
1. All bank statements with copies of cancelled checks since Sept 1, 2019.
2. Any and all financial statements since Sept 1, 2019.
3. Any and all 1099s issued for 2019.
4. Any and all Executive Session meeting minutes conducted in 2020 (excluding statutory exemptions).
5. Any and all contracts signed in 2020.
6. Any and all outstanding invoices with a due date over 45 days.
7. Any documentation regarding the legality of the $204.75 maintenance fee.
8. Any proof of Stephen Silberschlag’s liability insurance.
9. Any landscaping plans.
• May 4, 2020: Ms. Parker from Associa responded that the company could only provide records within its possession.
• May 15, 2020: Following another email from the Petitioner, Ms. Parker stated that Associa had scheduled a meeting with the board on May 20 to discuss the request further.
• May 28, 2020: Having not received any of the requested documents, the Petitioner filed a petition with the Arizona Department of Real Estate.
3. The Initial Hearing and Decision (August – September 2020)
The first hearing focused on whether the Respondent had violated the statute by failing to produce the documents.
• The Respondent argued that it was unable to provide documents that were not in its possession.
• Joseph Silberschlag, Secretary of the Board of Directors, testified that issues with the former management company (CMC) meant neither the Respondent nor Associa had possession of many necessary documents.
• Specifically, he stated that without previous financial documents and starting balances from CMC, the association was unable to create current financial statements.
• The Respondent maintained it was under no statutory obligation to create documents to fulfill the Petitioner’s request.
• The Administrative Law Judge (ALJ) concluded that the Petitioner “failed to establish by a preponderance of the evidence that Respondent violated A.R.S. § 33-1258(A).”
• The finding was based on the Respondent’s argument that it did not possess the requested documents at the time of the request.
• On September 17, 2020, the ALJ issued a decision denying the Petitioner’s petition.
4. The Rehearing and Reversal (March 2021)
Following the initial decision, the case was reopened based on new evidence presented by the Petitioner.
• After the September 2020 decision, the Respondent provided some of the requested documents to the Petitioner.
• Upon reviewing these documents, the Petitioner realized that the Respondent had, in fact, been in possession of several key records prior to her May 1, 2020 request.
• She filed a Rehearing Request with the Department of Real Estate, citing “newly discovered material evidence that could not with reasonable diligence have been discovered and produced at the original hearing.” The request was granted.
The rehearing revealed crucial details about the location and accessibility of the requested records.
Record Type
Petitioner’s Evidence
Respondent’s Testimony/Explanation
Bank Statements
The documents received post-hearing showed that bank statements had been sent to Associa starting in August 2019.
Evelyn Shanley, Community Director for Associa, testified that statements for all HOAs were sent to a central office in Richardson, Texas. She admitted she did not contact the Texas office to obtain the statements for the Petitioner’s request. Counsel for the Respondent conceded the statements in Texas were in the possession of Associa.
Contracts
Petitioner presented two contracts signed by Board members on March 27 and March 31, 2020, prior to her request.
Ms. Shanley admitted the two signed contracts existed but stated that the Board of Directors members had not provided them to Associa.
1099 Forms
Petitioner noted a document indicating four vendors were eligible for 1099s.
Ms. Shanley denied that any 1099s had been issued.
• The documents were not in the “immediate possession” of the local Associa office.
• The matter was now moot because the Petitioner had received all requested documents.
• A civil penalty was inappropriate because the Petitioner did not specifically request one on her initial petition form.
• The evidence presented at the rehearing was “directly contradictory” to the representations made by the Respondent at the initial hearing.
• The Petitioner successfully established by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1258(A) by failing to provide documents (bank statements and contracts) that were in its possession.
• The ALJ rejected the Respondent’s argument against a civil penalty, stating that the plain language of A.R.S. § 32-2199.02 allows the judge to levy a penalty for established violations, and “nothing in the statute limits the available remedies to those specifically requested by a petitioner.”
5. Final Order and Penalties
The Administrative Law Judge Decision issued on March 24, 2021, reversed the initial finding and imposed penalties on the Respondent.
IT IS ORDERED that:
1. Respondent must pay the Petitioner her filing fee of $500.00 within 30 days.
2. Respondent must pay to the Department of Real Estate a civil penalty in the amount of $2,500.00 within 30 days.
Study Guide – 20F-H2020064-REL
Study Guide: Babington v. Park Scottsdale II Townhouse Corporation
This study guide provides a review of the administrative case involving Petitioner Nancy L. Babington and Respondent Park Scottsdale II Townhouse Corporation. It includes a short-answer quiz to test factual recall, a separate answer key, a set of essay questions for deeper analysis, and a glossary of key terms and entities involved in the proceedings.
Short-Answer Quiz
Answer each question in 2-3 sentences based on the information provided in the case documents.
1. Who were the primary parties in this case, and what was the Petitioner’s central allegation?
2. What specific Arizona statute was the Respondent accused of violating, and what does this law generally require?
3. What was the Respondent’s main defense during the initial hearing on August 28, 2020, for not providing the requested records?
4. What was the conclusion of the Administrative Law Judge in the first decision, issued on September 17, 2020?
5. On what legal grounds did the Petitioner successfully file for a rehearing of her case?
6. What new evidence regarding bank statements was presented by the Petitioner at the March 4, 2021, rehearing?
7. How did the Respondent’s management company, Associa Arizona, explain its failure to produce the bank statements and signed contracts in response to the initial request?
8. What was the final outcome of the rehearing, and how did it contradict the initial decision?
9. What two financial penalties were imposed upon the Respondent in the final order of March 24, 2021?
10. What was the Respondent’s argument against the imposition of a civil penalty, and why did the Administrative Law Judge reject it?
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Answer Key
1. The primary parties were Petitioner Nancy L. Babington, a property owner, and Respondent Park Scottsdale II Townhouse Corporation, a condominium owners association. The Petitioner alleged that the Respondent failed to provide association records she formally requested, in violation of Arizona law.
2. The Respondent was accused of violating A.R.S. § 33-1258. This statute requires a condominium owners association to make its financial and other records reasonably available for examination by a member and to provide copies of requested records within ten business days.
3. During the initial hearing, the Respondent’s main defense was that it was unable to provide the documents because they were not in its possession. The Respondent claimed its former management company, CMC, was withholding records and that without starting balances, it could not create new financial documents.
4. The Administrative Law Judge denied the Petitioner’s petition in the first decision. The judge concluded that the Petitioner failed to establish by a preponderance of the evidence that the Respondent violated the statute because the Respondent did not possess the documents and was not required to create them.
5. The Petitioner was granted a rehearing based on the discovery of “newly discovered material evidence that could not with reasonable diligence have been discovered and produced at the original hearing.” After the first decision, the Respondent provided documents that proved it had, in fact, been in possession of some of the requested records prior to her request.
6. At the rehearing, the Petitioner testified that after receiving the documents, she realized bank statements had been sent to Associa’s central office in Richardson, Texas, starting in August 2019. This demonstrated that the records were in the management company’s possession when she made her request.
7. Associa’s representative testified that bank statements went to a central office in Texas and were not forwarded to the local office because financial packets could not be prepared without starting balances from the previous management company. Regarding the contracts, Associa claimed that the Board of Directors members who signed them had not provided the contracts to Associa.
8. The final outcome of the rehearing was a ruling in favor of the Petitioner. The judge found that evidence presented at the rehearing directly contradicted the Respondent’s earlier claims, establishing that the Respondent did possess bank statements and contracts and had violated A.R.S. § 33-1258(A).
9. In the final order, the Respondent was ordered to pay the Petitioner’s filing fee of $500.00. Additionally, the Respondent was ordered to pay a civil penalty of $2,500.00 to the Arizona Department of Real Estate.
10. The Respondent argued that a civil penalty was not appropriate because the Petitioner did not specifically request one by checking the box on the petition form. The judge rejected this, stating that the plain language of A.R.S. § 32-2199.02 allows the judge to levy a civil penalty for established violations, and this authority is not limited by the remedies requested by a petitioner.
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Essay Questions
The following questions are designed for analytical and in-depth responses. Answers are not provided.
1. Analyze the concept of “possession” of records as it evolved from the first hearing to the second. How did the Respondent’s initial interpretation of “immediate possession” differ from the Administrative Law Judge’s final conclusion regarding the records held by Associa’s Texas office?
2. Discuss the significance of the “preponderance of the evidence” standard in this case. Explain specifically how the Petitioner failed to meet this standard in the first hearing but succeeded in the second, citing the key pieces of evidence that shifted the outcome.
3. Evaluate the role and responsibilities of the management company, Associa Arizona, in this dispute. To what extent were its internal procedures and actions (or inactions) the primary cause of the Respondent’s violation of A.R.S. § 33-1258?
4. Trace the timeline of communication between Nancy Babington and Associa Arizona from April 29, 2020, to May 15, 2020. Analyze how the responses from Associa may have contributed to the perception that the Respondent was refusing to provide information, ultimately leading to the petition being filed.
5. The Administrative Law Judge has the statutory authority to levy a civil penalty for each violation found. Based on the facts of this case, including the Respondent’s representations at the first hearing and the contradictory evidence presented at the second, construct an argument justifying the imposition of the $2,500 civil penalty.
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Glossary of Key Terms
Term / Entity
Definition
A.R.S. § 32-2199 et seq.
The Arizona Revised Statute cited as giving the Arizona Department of Real Estate jurisdiction to hear disputes between a property owner and a condominium owners association.
A.R.S. § 33-1258
The Arizona Revised Statute at the core of the dispute. It requires that an association’s financial and other records be made “reasonably available” for examination and that the association has ten business days to fulfill a request for examination or to provide copies.
Administrative Law Judge (ALJ)
The official from the Office of Administrative Hearings (Tammy L. Eigenheer in this case) responsible for conducting the hearings, weighing evidence, and issuing a legally binding decision and order.
Associa Arizona
The management company hired by the Respondent to handle its operations after the termination of the previous management agreement. It was the primary point of contact for the Petitioner’s records request.
Civil Penalty
A monetary fine levied by the Administrative Law Judge for a violation of the law. In this case, a $2,500 penalty was ordered to be paid to the Department of Real Estate.
Community Management & Consulting, LLC (CMC)
The Respondent’s former management company. CMC terminated its agreement with the Respondent and was withholding association records due to a financial disagreement, which was a key part of the Respondent’s defense in the initial hearing.
Department of Real Estate (Department)
The Arizona state agency with which the Petitioner filed her petition and which has jurisdiction over such disputes.
A legal argument made by the Respondent’s counsel during the rehearing. Counsel asserted that the matter was moot (no longer relevant or in dispute) because, by the time of the rehearing, the Petitioner had received all the documents she requested.
Newly Discovered Material Evidence
The legal basis upon which the Petitioner was granted a rehearing. It refers to significant evidence that was not available at the time of the original hearing despite reasonable diligence.
Petitioner
The party who initiates a legal action or petition. In this case, Nancy L. Babington, a condominium owner.
Preponderance of the Evidence
The standard of proof required for the Petitioner to win her case. It is defined as evidence that is more convincing and shows that the fact sought to be proved is “more probable than not.”
Rehearing
A second hearing granted by the Commissioner of the Department of Real Estate to re-examine a case, which was held on March 4, 2021, after the Petitioner presented newly discovered evidence.
Respondent
The party against whom a petition is filed. In this case, Park Scottsdale II Townhouse Corporation, the condominium owners association.
Blog Post – 20F-H2020064-REL
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20F-H2020064-REL-RHG
2 sources
These two sources are Administrative Law Judge Decisions concerning a dispute between Nancy L. Babington, a homeowner, and the Park Scottsdale II Townhouse Corporation, her condominium owners association, regarding the provision of association records under Arizona statute A.R.S. § 33-1258. The first document details the initial hearing, held in August 2020, where the judge ruled in favor of the association, concluding that the association was not in violation because it lacked possession of the requested documents due to issues with its former management company. The second document outlines the rehearing, granted due to newly discovered evidence suggesting the association or its new management company, Associa Arizona, actually possessed some records, such as bank statements and contracts, despite earlier claims. Based on the rehearing’s findings, the judge determined the association violated the statute by not providing the records within the ten-day requirement and ordered the association to reimburse the petitioner’s filing fee and pay a civil penalty.
How did newly discovered evidence lead to reversal of the initial legal decision?
What were the specific consequences for the respondent following the administrative rehearing?
How did the interpretation of statutory record possession requirements change between hearings?
Based on 2 sources
Case Participants
Petitioner Side
Nancy L. Babington(petitioner)
Respondent Side
Lydia A. Peirce Linsmeier(HOA attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Represented Respondent at initial hearing
Mark K. Sahl(HOA attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Represented Respondent at rehearing
Scott B. Carpenter(HOA attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Represented Respondent at rehearing
Debbie Schumacher(board member) Park Scottsdale II Townhouse Corporation
Marty Shuford(board member) Park Scottsdale II Townhouse Corporation
Joseph Silberschlag(board member) Park Scottsdale II Townhouse Corporation Secretary; testified
Angelina Rajenovich(board member) Park Scottsdale II Townhouse Corporation
Dermot Brown(board member) Park Scottsdale II Townhouse Corporation
Lori Nusbaum(board member) Park Scottsdale II Townhouse Corporation
Linda Parker(HOA staff) Associa Arizona Director of Client Services for property manager
Evelyn Shanley(HOA staff) Associa Arizona Community Director for property manager; testified at rehearing
Laura Smith(HOA staff) Associa Arizona
Neutral Parties
Tammy L. Eigenheer(ALJ) OAH
Judy Lowe(Commissioner) Arizona Department of Real Estate
LDettorre(ADRE staff) Arizona Department of Real Estate
AHansen(ADRE staff) Arizona Department of Real Estate
djones(ADRE staff) Arizona Department of Real Estate
DGardner(ADRE staff) Arizona Department of Real Estate
ncano(ADRE staff) Arizona Department of Real Estate
c. serrano(staff) Signed order transmission
Other Participants
Stephen Silberschlag(unknown) Subject of Petitioner's record request
The Administrative Law Judge ruled that Solera was in compliance with its governing documents, specifically CC&R Article 7, Section 7.1, concluding that the Board is the 'sole judge' regarding appropriate maintenance of AREAS. The Petitioner failed to meet the burden of proof, and the Rehearing Petition was dismissed.
Why this result: Petitioner failed to sustain her burden to establish a violation. The governing documents grant the Board 'the sole judge' authority over maintenance, and Petitioner did not provide legal support requiring the HOA to meet the homeowner maintenance standard.
Key Issues & Findings
Failure to maintain Areas of Association Responsibility (AREAS) in good condition and repair at all times
Petitioner alleged that Solera failed to maintain Areas of Association Responsibility (AREAS) in good condition and repair at all times, arguing that the same strict maintenance standard applied to homeowners (CC&R 7.2) should apply to the HOA (CC&R 7.1). The issue was heard on rehearing after the initial decision dismissed the petition.
Orders: The Administrative Law Judge concluded Solera was in compliance with its governing documents and was the prevailing party. Petitioner's appeal (Rehearing Petition) was dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. 33-1801 et seq.
A.R.S. §§ 32-2102
A.R.S. §§ 32-2199 et al.
A.R.S. § 32-2199.05
A.R.S. §§ 32-2199(2)
A.R.S. § 32-2199.01(D)
A.R.S. § 32-2199.02
A.R.S. § 41-1092
CC&R Article 7, Section 7.1
CC&R Article 7, Section 7.2
CC&R Article 9, Section 9.5
ARIZ. ADMIN. CODE R2-19-119
ARIZ. ADMIN. CODE R2-19-116
Analytics Highlights
Topics: HOA Dispute, CC&R Violation, Maintenance Standard, Areas of Association Responsibility, Rehearing, Sole Judge
The Administrative Law Judge ruled that Solera was in compliance with its governing documents, specifically CC&R Article 7, Section 7.1, concluding that the Board is the 'sole judge' regarding appropriate maintenance of AREAS. The Petitioner failed to meet the burden of proof, and the Rehearing Petition was dismissed.
Why this result: Petitioner failed to sustain her burden to establish a violation. The governing documents grant the Board 'the sole judge' authority over maintenance, and Petitioner did not provide legal support requiring the HOA to meet the homeowner maintenance standard.
Key Issues & Findings
Failure to maintain Areas of Association Responsibility (AREAS) in good condition and repair at all times
Petitioner alleged that Solera failed to maintain Areas of Association Responsibility (AREAS) in good condition and repair at all times, arguing that the same strict maintenance standard applied to homeowners (CC&R 7.2) should apply to the HOA (CC&R 7.1). The issue was heard on rehearing after the initial decision dismissed the petition.
Orders: The Administrative Law Judge concluded Solera was in compliance with its governing documents and was the prevailing party. Petitioner's appeal (Rehearing Petition) was dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. 33-1801 et seq.
A.R.S. §§ 32-2102
A.R.S. §§ 32-2199 et al.
A.R.S. § 32-2199.05
A.R.S. §§ 32-2199(2)
A.R.S. § 32-2199.01(D)
A.R.S. § 32-2199.02
A.R.S. § 41-1092
CC&R Article 7, Section 7.1
CC&R Article 7, Section 7.2
CC&R Article 9, Section 9.5
ARIZ. ADMIN. CODE R2-19-119
ARIZ. ADMIN. CODE R2-19-116
Analytics Highlights
Topics: HOA Dispute, CC&R Violation, Maintenance Standard, Areas of Association Responsibility, Rehearing, Sole Judge
Additional Citations:
A.R.S. 33-1801 et seq.
A.R.S. §§ 32-2102
A.R.S. §§ 32-2199 et al.
A.R.S. § 32-2199.05
A.R.S. §§ 32-2199(2)
A.R.S. § 32-2199.01(D)
A.R.S. § 32-2199.02
A.R.S. § 41-1092
CC&R Article 7, Section 7.1
CC&R Article 7, Section 7.2
CC&R Article 9, Section 9.5
ARIZ. ADMIN. CODE R2-19-119
ARIZ. ADMIN. CODE R2-19-116
Video Overview
Audio Overview
Decision Documents
20F-H2020051-REL Decision – 816310.pdf
Uploaded 2025-12-09T10:05:44 (199.6 KB)
20F-H2020051-REL Decision – 847175.pdf
Uploaded 2025-10-09T03:35:07 (246.5 KB)
Briefing Doc – 20F-H2020051-REL
Briefing Document: Morin v. Solera Chandler Homeowners’ Association
Executive Summary
This document synthesizes the findings from the Administrative Law Judge Rehearing Decision in the case of Debra K. Morin versus the Solera Chandler Homeowners’ Association, Inc. (Solera), dated January 8, 2021. The central dispute involved a homeowner’s allegation that the association failed to maintain its common areas in good condition and repair.
The Administrative Law Judge (ALJ) ultimately dismissed the petitioner’s case, finding conclusively in favor of the Solera HOA. The decision rested on a critical provision within the association’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs), which designates the Solera Board as the “sole judge as to the appropriate maintenance, repair and replacement” of all common areas. This clause grants the Board exclusive discretion, superseding an individual homeowner’s opinion on the timing or quality of maintenance.
Despite the petitioner presenting extensive photographic evidence documenting various maintenance issues, the ALJ concluded that this evidence failed to prove a violation of the governing documents. The petitioner did not meet her burden of proving by a preponderance of the evidence that the Board had acted outside its granted authority. The ruling affirms that the authority of the Board is explicitly elevated above that of an individual homeowner in matters of common area maintenance under the controlling legal documents.
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I. Case Background and Procedural History
The case originates from a petition filed by Debra K. Morin, a four-year resident of the Solera community, against the Solera Chandler Homeowners’ Association. The matter was adjudicated by the Arizona Office of Administrative Hearings (Tribunal).
A. Initial Petition
On March 12, 2020, Ms. Morin filed a two-issue petition with the Arizona Department of Real Estate, alleging that Solera, its Board of Directors, and its management company (Premier) had violated numerous governing documents, including the Articles of Incorporation, By-Laws, CC&Rs, and Rules & Regulations (R&Rs).
• Issue #1: Alleged that Solera did not permit “direct communication from homeowners” and sought to have this “policy” rescinded.
• Issue #2: Alleged that Solera was not providing oversight to the General Manager in maintaining the “Areas of Association Responsibility” (AREAS) in “good condition and repair at all times.” Specific complaints included uncontrolled weeds and poor maintenance of the Community Center and other common areas.
B. Procedural Developments
• Motion to Dismiss: Solera filed a Motion to Dismiss, arguing the issues were outside the Department of Real Estate’s jurisdiction.
• Withdrawal of Issue #1: At a May 20, 2020 hearing, the Tribunal noted its jurisdiction did not extend to non-governing documents like the Board’s Code of Ethics. Consequently, Ms. Morin withdrew Issue #1. The Tribunal denied the Motion to Dismiss for the remaining “bare-bones” maintenance allegation in Issue #2.
• Initial Decision (August 19, 2020): Following the original hearing, the ALJ issued a decision concluding that Solera was the “sole judge” regarding maintenance of the AREAS and had not violated its governing documents. The petition was dismissed.
• Rehearing Request (September 24, 2020): Ms. Morin filed a request for rehearing, citing irregularities in the proceedings, misconduct by the prevailing party, and arguing the decision was arbitrary and capricious, particularly in its interpretation of CC&R Article 7, Section 7.1.
• Rehearing Granted and Conducted: The Commissioner of the Arizona Department of Real Estate granted the rehearing, which was conducted telephonically on December 16, 2020.
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II. Core Arguments of the Parties
The fundamental conflict centered on the interpretation of the maintenance standards outlined in the community’s CC&Rs.
A. Petitioner’s Position (Debra K. Morin)
Ms. Morin’s case was built on the principle of equal application of maintenance standards.
• Central Argument: The same maintenance standard requiring homeowners to keep their lots “in good condition and repair at all times” (per CC&R Article 7, Section 7.2) must be applied equally to Solera’s responsibility for the common AREAS (per CC&R Article 7, Section 7.1).
• Core Belief: Because homeowners are given no discretion regarding delays in maintenance, Solera should not be able to take months to address reported issues.
• Evidence Presented: The petitioner submitted extensive documentation, including over 80 photographs (referenced in the rehearing as “310 pictures”), emails, and other documents. This evidence was intended to show persistent maintenance failures, including:
◦ Uncontrolled weeds in granite rock locations
◦ Poor exterior condition of the Community Center
◦ Deficiencies in street asphalt, storm drains, sidewalks, and curbing
◦ Water pooling and intrusion issues
◦ Exposed landscaping lights and irrigation lines
◦ Unremoved tree stumps
B. Respondent’s Position (Solera HOA)
Solera’s defense relied entirely on the specific authority granted to its Board by the governing documents.
• Central Argument: The association met its responsibilities, and the petitioner’s subjective opinions about what, when, or how maintenance should be done are irrelevant.
• Dispositive Legal Provision: Solera consistently cited CC&R Article 7, Section 7.1, which states the Board “shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS].”
• Interpretation: This provision grants the Board exclusive discretion and authority to determine the nature and timing of maintenance, insulating its decisions from a single homeowner’s critique.
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III. Analysis and Key Findings of the Administrative Law Judge
The Rehearing Decision provided a thorough review of the evidence and legal arguments, ultimately reinforcing the original ruling in favor of Solera.
A. The “Sole Judge” Clause and Board Authority
The ALJ’s conclusion hinged on the unambiguous language of the CC&Rs, which establishes a clear hierarchy of authority.
• CC&R Article 7, Section 7.1: This article was identified as the dispositive text. It states, in pertinent part: “the Board ‘shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS], but all [AREAS], and the Improvements located thereon, shall be maintained in good condition and repair at all times.'” The ALJ found that the “sole judge” provision grants the Board exclusive authority to determine how the “good condition and repair” standard is met.
• CC&R Article 9, Section 9.5: This section further strengthens the Board’s position by granting Solera the “exclusive right to construe and interpret the provisions of the [CC&Rs],” with its interpretation being “final, conclusive and binding.”
• Conclusion on Authority: The ALJ concluded that these provisions clearly lift the Board’s authority above that of an individual homeowner in determining appropriate maintenance.
B. Rejection of the “Equal Standard” Argument
The petitioner’s primary argument for an equal, non-discretionary standard for both the HOA and homeowners was explicitly rejected.
• The ALJ found that the petitioner “failed to provide legal support for her argument that the same maintenance standard is required to be applied to the Board as it is applied to a homeowner.”
• The governing documents themselves create different levels of authority and obligation for the Board versus individual owners.
C. Evaluation of Evidence and Burden of Proof
• Burden of Proof: The decision reiterates that the petitioner bears the burden of proving a violation by a “preponderance of the evidence.”
• Photographic Evidence: The ALJ acknowledged reviewing all photographs from both hearings. The decision states that this evidence successfully documented “the existence, at those dates embedded in the photographs, of items that deal with maintenance and repairs in various locations of Solera AREAS.”
• Failure to Prove a Violation: Crucially, while the photos proved maintenance issues existed, they did not prove a violation of the CC&Rs. Because the Board is the “sole judge,” the existence of a weed or a cracked curb does not automatically constitute a breach of its duties, as the Board retains discretion over the timeline and method of repair.
D. Jurisdictional Limitations
The decision affirmed the Tribunal’s limited jurisdiction, noting that many of the petitioner’s underlying frustrations were not legally actionable in this venue.
• Not Actionable: A homeowner’s dissatisfaction with the Board, its management company, or the General Manager is “not within the purview of this process or the jurisdiction of the Tribunal.”
• Irrelevant Documents: Arguments based on City of Chandler standards, the landscaping contract with Integrated Landscape Management (ILM), or Premier’s General Manager job description were deemed irrelevant, as the Tribunal’s review is limited to the association’s governing documents and applicable state statutes.
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IV. Final Order and Conclusion
Based on an exhaustive review of the record from both the original hearing and the rehearing, the Administrative Law Judge reached a definitive conclusion.
• Final Finding: The petitioner failed to sustain her burden of proof to establish a violation by Solera of the governing documents. The ALJ concluded that Solera is in compliance with its governing documents, including CC&R Article 7, Section 7.1.
• Order:
◦ IT IS ORDERED that Solera is the prevailing party with regard to the Rehearing, and Petitioner’s appeal is dismissed.
◦ The order was issued on January 8, 2021.
◦ As a decision issued after a rehearing, the order is binding on the parties. Any further appeal must be filed with the Superior Court within 35 days from the date of service.
Study Guide – 20F-H2020051-REL
Study Guide: Morin v. Solera Chandler Homeowners’ Association, Inc.
This guide provides a comprehensive review of the administrative rehearing case No. 20F-H2020051-REL-RHG, between Petitioner Debra K. Morin and Respondent Solera Chandler Homeowners’ Association, Inc. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms derived from the case documents.
Short-Answer Quiz
Answer each of the following questions in 2-3 sentences based on the information provided in the case decision.
1. Who were the primary parties in this case, and who represented them at the telephonic hearing on December 16, 2020?
2. What were the two initial issues Petitioner Debra K. Morin raised in her petition filed on March 12, 2020?
3. Why did the Petitioner withdraw Issue #1 from her petition during the May 20, 2020 hearing?
4. What was the Petitioner’s central argument regarding the maintenance standard that Solera should be held to?
5. What type of evidence did the Petitioner primarily present to document the alleged maintenance failures in the Areas of Association Responsibility (AREAS)?
6. What specific clause in the CC&Rs did Solera (the Respondent) rely on to defend its actions and decisions regarding maintenance?
7. What were the primary reasons the Commissioner of the Arizona Department of Real Estate granted the Petitioner’s request for a rehearing?
8. How did the Administrative Law Judge rule on the relevance of non-governing documents, such as the City of Chandler ordinances and the Premier Management Company job description?
9. What is the legal standard of proof that a petitioner must meet in these proceedings, and how is it defined in the decision?
10. What was the final conclusion and order of the Administrative Law Judge in the Rehearing Decision issued on January 8, 2021?
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Answer Key
1. The primary parties were the Petitioner, Debra K. Morin, who represented herself, and the Respondent, Solera Chandler Homeowners’ Association (Solera). Solera was represented by Lydia Linsmeier, Esq.
2. Issue #1 alleged that Solera did not allow direct communication from homeowners. Issue #2 alleged that Solera, its Board, and its management company were not providing proper oversight to maintain the Areas of Association Responsibility (AREAS) in good condition and repair.
3. The Petitioner withdrew Issue #1 after the Tribunal ruled that the statutory parameters of its jurisdiction did not include the interpretation or application of a non-governing document like the Board’s Code of Ethics. The allegations regarding ethics and mismanagement based on this code were therefore removed from consideration.
4. The Petitioner’s central argument was that the same maintenance standard must be applied to Solera as is applied to homeowners. She contended that just as homeowners are required by CC&R Article 7, Section 7.2 to maintain their lots in good condition at all times, Solera must be held to the same standard for common AREAS under CC&R Article 7, Section 7.1.
5. The Petitioner presented an “enormity” of photographic evidence to document the maintenance issues. The decision notes she presented over eighty photographs at the original hearing and an additional “310 pictures” were mentioned in the rehearing, showing weeds, debris, exposed wiring, and other issues at various dates.
6. Solera relied on CC&R Article 7, Section 7.1, which states that the Solera Board of Directors “shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS].” Solera argued that the Petitioner’s subjective opinions on maintenance were therefore not relevant.
7. The rehearing was granted for reasons outlined in the Petitioner’s request, which claimed: irregularities in the proceedings, misconduct by the prevailing party, and that the original decision was arbitrary, capricious, an abuse of discretion, not supported by evidence, or contrary to law.
8. The Judge ruled that such documents were not relevant or justiciable. City standards were not under review, and the management company’s job description and landscape contract were not Solera governing documents, so they could not be used to prove a violation of the association’s governing documents.
9. The petitioner bears the burden of proving their case by a “preponderance of the evidence.” This is defined as proof that convinces the trier of fact that the contention is more probably true than not, and it represents the greater weight of evidence.
10. The Administrative Law Judge concluded that the Petitioner failed to sustain her burden to establish a violation by Solera of the governing documents. The Judge found Solera to be the prevailing party, in compliance with CC&R Article 7, Section 7.1, and ordered that the Petitioner’s appeal be dismissed.
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Suggested Essay Questions
The following questions are designed to encourage deeper analysis of the case. No answers are provided.
1. Analyze the balance of power between a homeowner and an HOA as depicted in this case. Discuss how specific clauses in the CC&Rs, particularly Article 7 (Section 7.1) and Article 9 (Sections 9.5 and 9.9), grant authority to the Board and limit the recourse available to an individual owner within the association’s own framework.
2. Examine the role and limitations of evidence in this administrative hearing. Why was the Petitioner’s photographic evidence, despite its volume, ultimately insufficient to meet the burden of proof? Discuss the distinction made by the Tribunal between evidence of a maintenance issue and evidence of a violation of the governing documents.
3. The Petitioner argued for an equal application of the “maintenance standard” to both homeowners and the HOA, stating “[t]here must be equal consideration to have a valid contract.” Evaluate this argument in the context of the specific language found in the Solera CC&Rs. Is the concept of “equal consideration” legally applicable in the way the Petitioner suggests?
4. Discuss the jurisdiction of the Arizona Office of Administrative Hearings (the Tribunal) in HOA disputes as described in the decision. Explain why the Tribunal could rule on the maintenance of common areas but had to dismiss claims related to the Solera Code of Ethics, City of Chandler ordinances, and Premier Management’s internal documents.
5. Based on the findings of fact, trace the procedural journey of this case from the initial petition to the final rehearing order. Identify the key turning points, such as the Motion to Dismiss and the Order Granting Rehearing, and explain their impact on the scope and outcome of the dispute.
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Glossary of Key Terms
Definition from Source Context
Administrative Law Judge (ALJ)
The judicial authority, in this case Kay Abramsohn, who presides over hearings at the Office of Administrative Hearings, makes findings of fact, issues decisions, and conducts rehearings.
Areas of Association Responsibility (AREAS)
The common areas within the Solera community that the homeowners’ association is responsible for managing and maintaining. This includes landscaping, the Community Center exterior, street conditions, storm drains, sidewalks, walls, and curbing.
Articles of Incorporation
One of the governing documents of the Solera Chandler Homeowners’ Association, referenced as Solera Exhibit A.
By-Laws
One of the governing documents of the Solera Chandler Homeowners’ Association, referenced as Solera Exhibit B.
CC&Rs (Declaration of Covenants, Conditions, and Restrictions)
A primary governing document for the Solera at Springfield Lakes community. It outlines the rights and responsibilities of both the homeowners and the association.
Maintenance Standard
Defined in CC&R Article 1, Section 1.30 as “the standard of maintenance of Improvements established from time to time by the Board and/or the Architectural Review Committee in the Design Guidelines, or in the absence of any such standards, the standards of maintenance of Improvements generally prevailing through the Project.”
Motion to Dismiss
A formal request filed by a party (in this case, Solera) asking for a petition or case to be dismissed on the grounds that the issues are outside the Department’s jurisdiction or that the requested relief cannot be granted as a matter of law.
Petitioner
The party who initiates a legal action or petition. In this case, Debra K. Morin, a homeowner in the Solera community.
Preponderance of the Evidence
The standard of proof required for a petitioner to win in these proceedings. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
Premier Management Company (Premier)
The management company hired by the Solera Board of Directors to handle duties including the oversight of a General Manager.
Project Documents
Defined in CC&R Article 1, Section 1.37 as the CC&Rs, any supplements to the CC&Rs, the By-Laws, the Rules and Regulations (R&Rs), and the Design Guidelines.
Respondent
The party against whom a petition is filed. In this case, the Solera Chandler Homeowners’ Association, Inc.
R&Rs (Rules and Regulations)
One of the governing documents of the Solera Chandler Homeowners’ Association, referenced as Solera Exhibit D.
Tribunal
A term used to refer to the Arizona Office of Administrative Hearings (OAH), the body responsible for conducting administrative hearings for disputes referred by the Arizona Department of Real Estate.
Blog Post – 20F-H2020051-REL
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20F-H2020051-REL-RHG
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This document presents an Administrative Law Judge Rehearing Decision regarding a dispute between Debra K. Morin (Petitioner) and the Solera Chandler Homeowners’ Association, Inc. (Respondent). The Petitioner initially filed a two-issue complaint with the Arizona Department of Real Estate alleging that the HOA had violated various governing documents, primarily concerning lack of direct homeowner communication and a failure to maintain Association Responsibility Areas (AREAS) in good condition. After the first issue was withdrawn due to jurisdictional limitations, the initial decision dismissed the petition, finding the HOA was the sole judge of appropriate maintenance under the Covenants, Conditions, and Restrictions (CC&Rs). This rehearing decision, granted due to claims of procedural irregularities and arbitrary findings, ultimately reaffirms the original dismissal, concluding that the Petitioner failed to meet the burden of proof to establish a violation of the governing documents.
Case Participants
Petitioner Side
Debra K. Morin(petitioner) Represented herself
Respondent Side
Lydia A. Perce Linsmeier(HOA attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Represented Solera Chandler Homeowners' Association
Denise Frazier(general manager/witness) Premier Management Company / Solera Chandler Homeowners' Association Solera's onsite general manager who testified
Neutral Parties
Kay Abramsohn(ALJ) Office of Administrative Hearings Administrative Law Judge for both original and rehearing decisions
Judy Lowe(Commissioner) Arizona Department of Real Estate Commissioner of the Arizona Department of Real Estate
Felicia Del Sol(administrative) Transmitted the original August 19, 2020 Decision
The Petition was dismissed after rehearing because Petitioner failed to establish by a preponderance of the evidence that the Respondent violated the CC&Rs. The ALJ found that Petitioner continually refused Respondent access to his locked back yard for landscaping maintenance, and the CC&Rs requiring landscaping do not mandate pool maintenance.
Why this result: Petitioner failed to establish a violation due to refusal of access to the back yard and misinterpretation of CC&R obligations regarding pool maintenance.
Key Issues & Findings
Failure to maintain landscaping and acting in bad faith
Petitioner alleged Respondent HOA violated CC&Rs by failing to maintain landscaping in 2020 and acting in bad faith, asserting that pool/hardscape maintenance was included in landscaping duties, and requesting the maximum fine. Respondent countered that they consistently maintained the front yard but were denied access to the locked backyard due to Petitioner's pool liability concerns.
Orders: Petitioner's Petition was dismissed/denied as Petitioner failed to establish a violation by a preponderance of the evidence. However, Respondent was ordered, going forward, to communicate the days and times they will be performing back yard landscaping so Petitioner can provide access.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
CC&Rs § 5.1
CC&Rs § 5.1(a)
A.R.S. § 10-3842
A.R.S. § 32-2199(B)
A.R.S. § 33-1803
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
A.R.S. § 32-1122(A)(1)
A.R.S. § 41-1092.08(H)
A.R.S. § 12-904(A)
Analytics Highlights
Topics: HOA Duties, Landscaping, Pool Maintenance, CC&Rs, Access Refusal, Rehearing
Additional Citations:
CC&Rs § 5.1
CC&Rs § 5.1(a)
A.R.S. § 10-3842
A.R.S. § 32-2199(B)
A.R.S. § 33-1803
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
A.R.S. § 32-1122(A)(1)
A.R.S. § 41-1092.08(H)
A.R.S. § 12-904(A)
Video Overview
Audio Overview
Decision Documents
20F-H2020059-REL Decision – 815480.pdf
Uploaded 2026-01-23T17:33:21 (124.1 KB)
Briefing Doc – 20F-H2020059-REL
Briefing Document: Stoltenberg v. Rancho Del Oro Homeowners Association
Executive Summary
This document synthesizes the findings from two administrative hearings concerning a dispute between homeowner Michael J. Stoltenberg (Petitioner) and the Rancho Del Oro Homeowners Association (Respondent). The core of the dispute centers on the scope of landscaping maintenance obligations as defined by the association’s Covenants, Conditions, and Restrictions (CC&Rs).
The Petitioner alleged the HOA failed its duties under CC&Rs § 5.1 by not maintaining his property’s unique landscaping, which he argued included replenishing rock, staining paths, and servicing his swimming pool and associated hardscape. He further claimed the HOA was acting in bad faith and failing to comply with a previous court ruling.
The Respondent countered that it had consistently performed standard landscaping on the Petitioner’s front yard since January 2020. However, it was repeatedly denied access to the backyard, a fact the Petitioner admitted, citing liability concerns due to his pool. The HOA provided evidence of multiple attempts to access the yard and testimony that its maintenance duties are uniform across the community and do not include “concierge” services or pool maintenance.
The Administrative Law Judge ultimately dismissed the petition in both the initial hearing and a subsequent rehearing. The final decision rested on two key points: 1) The Petitioner failed to provide access to the area in question, preventing the HOA from performing its duties. 2) The Petitioner failed to meet the burden of proof that the term “landscaping” under the CC&Rs could be reasonably interpreted to include swimming pool maintenance. This conclusion was strongly supported by the separate licensing classifications for landscaping (R-21) and swimming pool service (R-6) issued by the Arizona Registrar of Contractors, which establishes them as distinct services under state regulation.
Case Overview
Parties and Key Personnel
Name/Entity
Affiliation / Title
Petitioner
Michael J. Stoltenberg
Homeowner, 11777 E. Calle Gaudi, Yuma, AZ
Respondent
Rancho Del Oro Homeowners Association
Homeowners’ Association (HOA)
Respondent Counsel
Nicole Payne, Esq.
Legal Representative
Respondent Witness
Diana Crites
Owner, Crites and Associates (Property Management Co.)
The central conflict involved the interpretation of the HOA’s maintenance obligations under its governing documents. The Petitioner argued for an expansive definition of “landscaping” that encompassed his entire property exterior, including a swimming pool. The HOA maintained that its duties were limited to standard, uniform landscaping services and that pool maintenance was explicitly excluded. The dispute was compounded by the Petitioner’s refusal to grant the HOA’s landscaper access to his backyard.
Petitioner’s Allegations and Arguments
Mr. Stoltenberg’s petition, filed on or about April 21, 2020, and subsequent arguments in two hearings, were based on the following claims:
• Violation of CC&Rs: The HOA violated § 5.1 of its CC&Rs by failing “to do their job in 2020 with maintaining landscaping, and are acting in bad faith.”
• Broad Interpretation of “Landscaping”: As the CC&Rs do not define “landscaping,” the Petitioner contended it should include all types of features outside of structures. His specific demands included:
◦ Maintenance of unique xeriscape with geometric patterns.
◦ Replenishment of thin or worn-out rock ground cover.
◦ Staining of walking paths.
◦ Full maintenance of his “water feature,” identified as a swimming pool. This included the pump, filter, chemicals, patio, and all related hardscape.
• Refusal to Grant Access: The Petitioner acknowledged that the gate to his backyard was “always locked.” He stated this was for liability reasons due to the pool and refused access to the HOA’s landscapers. At the rehearing, he argued the HOA failed to communicate its schedule to allow him to provide temporary access.
• Budgetary Failure: He asserted that the HOA did not properly budget for the costs associated with maintaining his unique landscaping.
• Grounds for Rehearing: After the initial denial, the Petitioner requested a rehearing on multiple grounds, including irregularity in proceedings, errors in evidence admission, and claims of “Americans with Disabilities Act (ADA) issues” related to hearing loss.
Respondent’s Position and Evidence
The Rancho Del Oro HOA presented a defense centered on its consistent attempts to fulfill its obligations and the Petitioner’s own actions preventing them from doing so.
• Consistent Front Yard Maintenance: Both the HOA property manager and its landscaping contractor testified that the Petitioner’s front yard had been continuously maintained since landscaping services began in January 2020.
• Denial of Backyard Access: The HOA’s primary defense was that it was physically prevented from servicing the backyard. Evidence presented to support this included:
◦ Testimony from Rian Baas (Mowtown Landscape): His crews were at the property weekly. Between January and March 2020, he or his crew knocked and left notes or business cards four to five times with no response.
◦ Witness Testimony: In March 2020, a woman at the residence (presumably the Petitioner’s wife) explicitly instructed a landscaper that “she does not want anyone in the back yard because she had a pool and that is the reason for the lock on gate.”
◦ Documentary Evidence: A text message dated March 24, 2020, from Mr. Baas to property manager Diana Crites memorialized this interaction. A photograph of the locked gate was also submitted.
• Scope of Services: Ms. Crites testified that HOA landscape services are uniform throughout the community and include front yard maintenance, mowing and blowing in backyards (if access is granted), and sprinkler system upkeep. They do not provide “concierge” services such as maintaining potted plants, driveways, or pools (except for the community pool, which is serviced by a separate contractor).
• Access as a Prerequisite: Ms. Crites explained that backyard maintenance is contingent on homeowners leaving their gates unlocked, and some owners choose not to grant access due to pets or other reasons.
Judicial Findings and Rulings
Initial Decision (August 17, 2020)
The Administrative Law Judge denied the Petitioner’s initial petition based on a clear set of facts.
• Findings of Fact: The judge found the evidence presented by the Respondent to be credible. The Petitioner’s own admission that he refused to allow access to his backyard since January 2020 was a critical factor. The evidence established that the HOA had consistently maintained the front yard and made multiple, documented attempts to access the backyard.
• Conclusions of Law: The judge concluded that while § 5.1(a) of the CC&Rs requires the HOA to maintain yards, “nothing therein requires Respondent to maintain an individual member’s pool.” Because the Petitioner denied access, he could not establish that the Respondent had violated any CC&R.
Rehearing and Final Decision (February 12, 2021)
After the Commissioner for the Department of Real Estate granted a rehearing, the judge again reviewed the case and ultimately dismissed the petition, providing a more detailed legal analysis of the term “landscaping.”
• Burden of Proof: The judge reiterated that the Petitioner bore the burden to establish by a preponderance of the evidence that the HOA was legally obligated to maintain his pool and hardscape. The Petitioner failed to offer any definition or legal authority to support his expansive interpretation.
• Analysis of “Landscaping”: The judge found that the common definitions of “landscaping” from various dictionary and legal sources “cannot reasonably be read to include a swimming pool and the associated mechanical equipment.”
• Arizona Registrar of Contractors (ROC) Licensing: The judge’s conclusion was decisively reinforced by the State of Arizona’s contractor licensing classifications:
◦ The R-21 Hardscaping and Irrigation Systems license (formerly Landscaping) is for installing garden walls, irrigation, and other landscape features. It specifically precludes the licensee from contracting for “swimming pools, pool deck coatings.”
◦ The R-6 Swimming Pool Service and Repair license is a separate classification required to service residential pools.
◦ The judge concluded: “The Registrar’s licensing scheme supports a conclusion that landscaping maintenance and pool maintenance are two separate and distinct services.”
• Final Order: The petition was dismissed. The judge noted that because the Petitioner denied access, the Respondent was not in violation. However, the judge provided a forward-looking recommendation: “it is reasonable, going forward, for Respondent to communicate the days and times that it will be performing the landscaping of Petitioner’s back yard so that Petitioner can provide access for that service while maintaining safety precautions.”
Study Guide – 20F-H2020059-REL
Study Guide: Stoltenberg v. Rancho Del Oro Homeowners Association
This study guide provides a comprehensive review of the administrative legal dispute between homeowner Michael J. Stoltenberg and the Rancho Del Oro Homeowners Association. It covers the key arguments, evidence presented, and legal conclusions from two separate hearings. Use the following sections to test and deepen your understanding of the case.
Short-Answer Quiz
Instructions: Answer the following questions in two to three complete sentences, drawing all information from the provided case documents.
1. Who were the primary parties involved in this legal dispute, and what were their respective roles?
2. What was the core allegation made by the Petitioner against the Respondent in the initial petition filed on April 21, 2020?
3. According to Section 5.1 of the CC&Rs, what is the Association’s primary maintenance obligation regarding individual lots?
4. What specific and unique types of landscaping did the Petitioner claim required maintenance by the HOA?
5. What was the primary reason the Respondent’s landscaping contractor, Mowtown Landscape, was unable to perform maintenance in the Petitioner’s backyard?
6. What evidence did Diana Crites, the property manager, present to demonstrate the landscaper’s attempts to gain access to the backyard?
7. On what grounds did the Administrative Law Judge initially deny the Petitioner’s petition in the decision dated August 17, 2020?
8. What reasons did the Petitioner give for his request for a rehearing after the initial decision?
9. In the rehearing, how did the Administrative Law Judge legally define “landscaping” to determine the scope of the HOA’s duties?
10. What was the final order in the decision dated February 12, 2021, and what recommendation did the judge make for future interactions?
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Answer Key
1. The primary parties were Michael J. Stoltenberg, the homeowner, who served as the Petitioner, and the Rancho Del Oro Homeowners Association, which was the Respondent. The Petitioner brought the complaint alleging the HOA was not fulfilling its duties, while the Respondent defended its actions. The case was heard by Administrative Law Judge Sondra J. Vanella.
2. The Petitioner alleged that the Respondent had violated its Covenants, Conditions, and Restrictions (CC&Rs) § 5.1 and Arizona Revised Statutes § 10-3842. Specifically, he claimed the HOA failed “to do their job in 2020 with maintaining landscaping, and are acting in bad faith.” He also referenced a refusal to follow a previous court ruling.
3. Section 5.1 of the CC&Rs states that the Association’s maintenance duties “shall also include maintenance of the landscaping on individual Lots outside of structures.” This clause formed the basis of the Petitioner’s argument that the HOA was responsible for all landscaping on his property.
4. The Petitioner testified that his landscaping was unique, including xeriscape with geometric patterns, “water features” (which was a pool), and walking paths that needed staining. He also contended that when the rock in his front yard wore thin, the Respondent should be responsible for replenishing it.
5. The landscaping contractor could not access the Petitioner’s backyard because the gate was always locked. The Petitioner acknowledged he kept it locked for liability reasons due to the presence of his pool, which he referred to as a “water feature.”
6. Diana Crites presented a text message from the landscaper, Rian Baas, dated March 24, 2020, detailing how a woman at the residence stated she did not want anyone in the backyard because of the pool. Ms. Crites also presented a photograph of the locked gate and read a letter from Mr. Baas explaining his crew had knocked and left business cards weekly for two months without response.
7. The judge denied the petition because the Petitioner’s own admission established that he had refused to allow the Respondent access to his backyard since January 2020. The decision noted that the HOA had made multiple attempts to access the yard and had consistently maintained the front yard landscaping.
8. The Petitioner requested a rehearing on multiple grounds, including alleged irregularity in the proceedings by the judge, newly discovered evidence, errors in the admission of evidence, and that the decision was not supported by evidence. He also asserted that there were Americans with Disabilities Act (ADA) issues related to his hearing loss and privacy issues.
9. The judge referenced multiple online dictionaries (Oxford English Dictionary, Dictionary.com, etc.) and, most significantly, the Arizona Registrar of Contractors’ license classifications. She noted that landscaping (R-21 license) and swimming pool service (R-6 license) are two separate and distinct services, supporting the conclusion that pool maintenance is not included under the term “landscaping.”
10. The final order was that the Petitioner’s Petition was dismissed. However, the judge recommended that, going forward, it would be reasonable for the Respondent to communicate the days and times for landscaping so the Petitioner could provide access to his backyard while maintaining his safety precautions.
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Essay Questions
Instructions: The following questions are designed to encourage deeper analysis of the case. Formulate a comprehensive response to each, structuring your answer as a short essay.
1. Analyze the role of “burden of proof” in this case. Explain what “preponderance of the evidence” means according to the source text and discuss how the Petitioner’s failure to meet this burden led to the dismissal of his petition in both hearings.
2. Discuss the conflict between the Petitioner’s right to secure his property (the locked gate) and the Respondent’s obligation to perform maintenance. How did the judge’s final recommendation attempt to resolve this practical conflict, even while legally siding with the Respondent?
3. Evaluate the Administrative Law Judge’s legal reasoning in the rehearing for defining “landscaping.” Why was the reference to the Arizona Registrar of Contractors’ licensing scheme a particularly persuasive piece of evidence compared to dictionary definitions alone?
4. Trace the evolution of the Petitioner’s arguments from the initial hearing to the rehearing. How did his claims regarding the scope of “landscaping” and his introduction of issues like ADA accommodation and the HOA’s legitimacy reflect a shift in legal strategy?
5. Based on the evidence presented by the Respondent’s witnesses (Diana Crites and Rian Baas), assess the HOA’s efforts to fulfill its maintenance obligations. Were the HOA’s actions reasonable under the circumstances described in the proceedings?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings. In this case, Sondra J. Vanella served as the ALJ for the Office of Administrative Hearings.
A.R.S. (Arizona Revised Statutes)
The codified laws of the state of Arizona. The Petitioner cited A.R.S. § 10-3842 (Code of Conduct for Board Members) and the proceedings operated under the authority of A.R.S. § 32-2199(B) and other related statutes.
Burden of Proof
The obligation on a party in a dispute to provide sufficient evidence to support their claim. In this case, the Petitioner bore the burden of proof to establish that the Respondent violated its CC&Rs.
CC&Rs (Covenants, Conditions, and Restrictions)
The governing legal documents that set out the rules for a planned community. The central issue of this case was the interpretation of Section 5.1(a) of the Rancho Del Oro HOA’s CC&Rs regarding maintenance duties.
Concierge Landscape Services
A term used by witness Diana Crites to describe specialized, non-uniform services the HOA does not provide. Examples given included maintaining potted plants, driveways, or walls dividing properties, in contrast to the uniform mowing and blowing provided to all homeowners.
Office of Administrative Hearings
An independent state agency in Arizona that conducts evidentiary hearings for other state agencies. This office heard the dispute after it was referred by the Department of Real Estate.
Petitioner
The party who files a petition initiating a legal case. In this matter, the Petitioner was homeowner Michael J. Stoltenberg.
Preponderance of the Evidence
The evidentiary standard required for the Petitioner to win his case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and is considered the “greater weight of the evidence.”
Respondent
The party against whom a petition is filed. In this matter, the Respondent was the Rancho Del Oro Homeowners Association.
Xeriscape
A style of landscaping utilizing drought-tolerant plants and rock to minimize water use. The Petitioner mentioned his unique xeriscape with geometric patterns as part of the landscaping he expected the HOA to maintain.
Blog Post – 20F-H2020059-REL
Study Guide: Stoltenberg v. Rancho Del Oro Homeowners Association
This study guide provides a comprehensive review of the administrative legal dispute between homeowner Michael J. Stoltenberg and the Rancho Del Oro Homeowners Association. It covers the key arguments, evidence presented, and legal conclusions from two separate hearings. Use the following sections to test and deepen your understanding of the case.
Short-Answer Quiz
Instructions: Answer the following questions in two to three complete sentences, drawing all information from the provided case documents.
1. Who were the primary parties involved in this legal dispute, and what were their respective roles?
2. What was the core allegation made by the Petitioner against the Respondent in the initial petition filed on April 21, 2020?
3. According to Section 5.1 of the CC&Rs, what is the Association’s primary maintenance obligation regarding individual lots?
4. What specific and unique types of landscaping did the Petitioner claim required maintenance by the HOA?
5. What was the primary reason the Respondent’s landscaping contractor, Mowtown Landscape, was unable to perform maintenance in the Petitioner’s backyard?
6. What evidence did Diana Crites, the property manager, present to demonstrate the landscaper’s attempts to gain access to the backyard?
7. On what grounds did the Administrative Law Judge initially deny the Petitioner’s petition in the decision dated August 17, 2020?
8. What reasons did the Petitioner give for his request for a rehearing after the initial decision?
9. In the rehearing, how did the Administrative Law Judge legally define “landscaping” to determine the scope of the HOA’s duties?
10. What was the final order in the decision dated February 12, 2021, and what recommendation did the judge make for future interactions?
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Answer Key
1. The primary parties were Michael J. Stoltenberg, the homeowner, who served as the Petitioner, and the Rancho Del Oro Homeowners Association, which was the Respondent. The Petitioner brought the complaint alleging the HOA was not fulfilling its duties, while the Respondent defended its actions. The case was heard by Administrative Law Judge Sondra J. Vanella.
2. The Petitioner alleged that the Respondent had violated its Covenants, Conditions, and Restrictions (CC&Rs) § 5.1 and Arizona Revised Statutes § 10-3842. Specifically, he claimed the HOA failed “to do their job in 2020 with maintaining landscaping, and are acting in bad faith.” He also referenced a refusal to follow a previous court ruling.
3. Section 5.1 of the CC&Rs states that the Association’s maintenance duties “shall also include maintenance of the landscaping on individual Lots outside of structures.” This clause formed the basis of the Petitioner’s argument that the HOA was responsible for all landscaping on his property.
4. The Petitioner testified that his landscaping was unique, including xeriscape with geometric patterns, “water features” (which was a pool), and walking paths that needed staining. He also contended that when the rock in his front yard wore thin, the Respondent should be responsible for replenishing it.
5. The landscaping contractor could not access the Petitioner’s backyard because the gate was always locked. The Petitioner acknowledged he kept it locked for liability reasons due to the presence of his pool, which he referred to as a “water feature.”
6. Diana Crites presented a text message from the landscaper, Rian Baas, dated March 24, 2020, detailing how a woman at the residence stated she did not want anyone in the backyard because of the pool. Ms. Crites also presented a photograph of the locked gate and read a letter from Mr. Baas explaining his crew had knocked and left business cards weekly for two months without response.
7. The judge denied the petition because the Petitioner’s own admission established that he had refused to allow the Respondent access to his backyard since January 2020. The decision noted that the HOA had made multiple attempts to access the yard and had consistently maintained the front yard landscaping.
8. The Petitioner requested a rehearing on multiple grounds, including alleged irregularity in the proceedings by the judge, newly discovered evidence, errors in the admission of evidence, and that the decision was not supported by evidence. He also asserted that there were Americans with Disabilities Act (ADA) issues related to his hearing loss and privacy issues.
9. The judge referenced multiple online dictionaries (Oxford English Dictionary, Dictionary.com, etc.) and, most significantly, the Arizona Registrar of Contractors’ license classifications. She noted that landscaping (R-21 license) and swimming pool service (R-6 license) are two separate and distinct services, supporting the conclusion that pool maintenance is not included under the term “landscaping.”
10. The final order was that the Petitioner’s Petition was dismissed. However, the judge recommended that, going forward, it would be reasonable for the Respondent to communicate the days and times for landscaping so the Petitioner could provide access to his backyard while maintaining his safety precautions.
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Essay Questions
Instructions: The following questions are designed to encourage deeper analysis of the case. Formulate a comprehensive response to each, structuring your answer as a short essay.
1. Analyze the role of “burden of proof” in this case. Explain what “preponderance of the evidence” means according to the source text and discuss how the Petitioner’s failure to meet this burden led to the dismissal of his petition in both hearings.
2. Discuss the conflict between the Petitioner’s right to secure his property (the locked gate) and the Respondent’s obligation to perform maintenance. How did the judge’s final recommendation attempt to resolve this practical conflict, even while legally siding with the Respondent?
3. Evaluate the Administrative Law Judge’s legal reasoning in the rehearing for defining “landscaping.” Why was the reference to the Arizona Registrar of Contractors’ licensing scheme a particularly persuasive piece of evidence compared to dictionary definitions alone?
4. Trace the evolution of the Petitioner’s arguments from the initial hearing to the rehearing. How did his claims regarding the scope of “landscaping” and his introduction of issues like ADA accommodation and the HOA’s legitimacy reflect a shift in legal strategy?
5. Based on the evidence presented by the Respondent’s witnesses (Diana Crites and Rian Baas), assess the HOA’s efforts to fulfill its maintenance obligations. Were the HOA’s actions reasonable under the circumstances described in the proceedings?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings. In this case, Sondra J. Vanella served as the ALJ for the Office of Administrative Hearings.
A.R.S. (Arizona Revised Statutes)
The codified laws of the state of Arizona. The Petitioner cited A.R.S. § 10-3842 (Code of Conduct for Board Members) and the proceedings operated under the authority of A.R.S. § 32-2199(B) and other related statutes.
Burden of Proof
The obligation on a party in a dispute to provide sufficient evidence to support their claim. In this case, the Petitioner bore the burden of proof to establish that the Respondent violated its CC&Rs.
CC&Rs (Covenants, Conditions, and Restrictions)
The governing legal documents that set out the rules for a planned community. The central issue of this case was the interpretation of Section 5.1(a) of the Rancho Del Oro HOA’s CC&Rs regarding maintenance duties.
Concierge Landscape Services
A term used by witness Diana Crites to describe specialized, non-uniform services the HOA does not provide. Examples given included maintaining potted plants, driveways, or walls dividing properties, in contrast to the uniform mowing and blowing provided to all homeowners.
Office of Administrative Hearings
An independent state agency in Arizona that conducts evidentiary hearings for other state agencies. This office heard the dispute after it was referred by the Department of Real Estate.
Petitioner
The party who files a petition initiating a legal case. In this matter, the Petitioner was homeowner Michael J. Stoltenberg.
Preponderance of the Evidence
The evidentiary standard required for the Petitioner to win his case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and is considered the “greater weight of the evidence.”
Respondent
The party against whom a petition is filed. In this matter, the Respondent was the Rancho Del Oro Homeowners Association.
Xeriscape
A style of landscaping utilizing drought-tolerant plants and rock to minimize water use. The Petitioner mentioned his unique xeriscape with geometric patterns as part of the landscaping he expected the HOA to maintain.
Case Participants
Petitioner Side
Michael J. Stoltenberg(petitioner) Appeared on his own behalf
Respondent Side
Nicole Payne(HOA attorney) Represented Respondent Rancho Del Oro Homeowners Association
Diana Crites(property manager) Crites and Associates Owner of Respondent’s property management company; appeared as witness
Rian Baas(witness) Mowtown Landscape Owner of landscaping company contracted by Respondent
Lydia A. Peirce Linsmeier(HOA attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Listed as recipient of the decision
Luis(employee) Mowtown Landscape (Implied) Crew member mentioned in text message regarding attempted access to petitioner's yard
Jill(employee) Mowtown Landscape (Implied) Printed papers for Luis regarding access to petitioner's yard
Neutral Parties
Sondra J. Vanella(ALJ) Administrative Law Judge
Judy Lowe(commissioner) Arizona Department of Real Estate
The Petition was dismissed after rehearing because Petitioner failed to establish by a preponderance of the evidence that the Respondent violated the CC&Rs. The ALJ found that Petitioner continually refused Respondent access to his locked back yard for landscaping maintenance, and the CC&Rs requiring landscaping do not mandate pool maintenance.
Why this result: Petitioner failed to establish a violation due to refusal of access to the back yard and misinterpretation of CC&R obligations regarding pool maintenance.
Key Issues & Findings
Failure to maintain landscaping and acting in bad faith
Petitioner alleged Respondent HOA violated CC&Rs by failing to maintain landscaping in 2020 and acting in bad faith, asserting that pool/hardscape maintenance was included in landscaping duties, and requesting the maximum fine. Respondent countered that they consistently maintained the front yard but were denied access to the locked backyard due to Petitioner's pool liability concerns.
Orders: Petitioner's Petition was dismissed/denied as Petitioner failed to establish a violation by a preponderance of the evidence. However, Respondent was ordered, going forward, to communicate the days and times they will be performing back yard landscaping so Petitioner can provide access.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
CC&Rs § 5.1
CC&Rs § 5.1(a)
A.R.S. § 10-3842
A.R.S. § 32-2199(B)
A.R.S. § 33-1803
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
A.R.S. § 32-1122(A)(1)
A.R.S. § 41-1092.08(H)
A.R.S. § 12-904(A)
Analytics Highlights
Topics: HOA Duties, Landscaping, Pool Maintenance, CC&Rs, Access Refusal, Rehearing
Additional Citations:
CC&Rs § 5.1
CC&Rs § 5.1(a)
A.R.S. § 10-3842
A.R.S. § 32-2199(B)
A.R.S. § 33-1803
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
A.R.S. § 32-1122(A)(1)
A.R.S. § 41-1092.08(H)
A.R.S. § 12-904(A)
Video Overview
Audio Overview
Decision Documents
20F-H2020059-REL Decision – 815480.pdf
Uploaded 2025-10-09T03:35:23 (124.1 KB)
Briefing Doc – 20F-H2020059-REL
Briefing Document: Stoltenberg v. Rancho Del Oro Homeowners Association
Executive Summary
This document synthesizes the findings from two administrative hearings concerning a dispute between homeowner Michael J. Stoltenberg (Petitioner) and the Rancho Del Oro Homeowners Association (Respondent). The core of the dispute centers on the scope of landscaping maintenance obligations as defined by the association’s Covenants, Conditions, and Restrictions (CC&Rs).
The Petitioner alleged the HOA failed its duties under CC&Rs § 5.1 by not maintaining his property’s unique landscaping, which he argued included replenishing rock, staining paths, and servicing his swimming pool and associated hardscape. He further claimed the HOA was acting in bad faith and failing to comply with a previous court ruling.
The Respondent countered that it had consistently performed standard landscaping on the Petitioner’s front yard since January 2020. However, it was repeatedly denied access to the backyard, a fact the Petitioner admitted, citing liability concerns due to his pool. The HOA provided evidence of multiple attempts to access the yard and testimony that its maintenance duties are uniform across the community and do not include “concierge” services or pool maintenance.
The Administrative Law Judge ultimately dismissed the petition in both the initial hearing and a subsequent rehearing. The final decision rested on two key points: 1) The Petitioner failed to provide access to the area in question, preventing the HOA from performing its duties. 2) The Petitioner failed to meet the burden of proof that the term “landscaping” under the CC&Rs could be reasonably interpreted to include swimming pool maintenance. This conclusion was strongly supported by the separate licensing classifications for landscaping (R-21) and swimming pool service (R-6) issued by the Arizona Registrar of Contractors, which establishes them as distinct services under state regulation.
Case Overview
Parties and Key Personnel
Name/Entity
Affiliation / Title
Petitioner
Michael J. Stoltenberg
Homeowner, 11777 E. Calle Gaudi, Yuma, AZ
Respondent
Rancho Del Oro Homeowners Association
Homeowners’ Association (HOA)
Respondent Counsel
Nicole Payne, Esq.
Legal Representative
Respondent Witness
Diana Crites
Owner, Crites and Associates (Property Management Co.)
The central conflict involved the interpretation of the HOA’s maintenance obligations under its governing documents. The Petitioner argued for an expansive definition of “landscaping” that encompassed his entire property exterior, including a swimming pool. The HOA maintained that its duties were limited to standard, uniform landscaping services and that pool maintenance was explicitly excluded. The dispute was compounded by the Petitioner’s refusal to grant the HOA’s landscaper access to his backyard.
Petitioner’s Allegations and Arguments
Mr. Stoltenberg’s petition, filed on or about April 21, 2020, and subsequent arguments in two hearings, were based on the following claims:
• Violation of CC&Rs: The HOA violated § 5.1 of its CC&Rs by failing “to do their job in 2020 with maintaining landscaping, and are acting in bad faith.”
• Broad Interpretation of “Landscaping”: As the CC&Rs do not define “landscaping,” the Petitioner contended it should include all types of features outside of structures. His specific demands included:
◦ Maintenance of unique xeriscape with geometric patterns.
◦ Replenishment of thin or worn-out rock ground cover.
◦ Staining of walking paths.
◦ Full maintenance of his “water feature,” identified as a swimming pool. This included the pump, filter, chemicals, patio, and all related hardscape.
• Refusal to Grant Access: The Petitioner acknowledged that the gate to his backyard was “always locked.” He stated this was for liability reasons due to the pool and refused access to the HOA’s landscapers. At the rehearing, he argued the HOA failed to communicate its schedule to allow him to provide temporary access.
• Budgetary Failure: He asserted that the HOA did not properly budget for the costs associated with maintaining his unique landscaping.
• Grounds for Rehearing: After the initial denial, the Petitioner requested a rehearing on multiple grounds, including irregularity in proceedings, errors in evidence admission, and claims of “Americans with Disabilities Act (ADA) issues” related to hearing loss.
Respondent’s Position and Evidence
The Rancho Del Oro HOA presented a defense centered on its consistent attempts to fulfill its obligations and the Petitioner’s own actions preventing them from doing so.
• Consistent Front Yard Maintenance: Both the HOA property manager and its landscaping contractor testified that the Petitioner’s front yard had been continuously maintained since landscaping services began in January 2020.
• Denial of Backyard Access: The HOA’s primary defense was that it was physically prevented from servicing the backyard. Evidence presented to support this included:
◦ Testimony from Rian Baas (Mowtown Landscape): His crews were at the property weekly. Between January and March 2020, he or his crew knocked and left notes or business cards four to five times with no response.
◦ Witness Testimony: In March 2020, a woman at the residence (presumably the Petitioner’s wife) explicitly instructed a landscaper that “she does not want anyone in the back yard because she had a pool and that is the reason for the lock on gate.”
◦ Documentary Evidence: A text message dated March 24, 2020, from Mr. Baas to property manager Diana Crites memorialized this interaction. A photograph of the locked gate was also submitted.
• Scope of Services: Ms. Crites testified that HOA landscape services are uniform throughout the community and include front yard maintenance, mowing and blowing in backyards (if access is granted), and sprinkler system upkeep. They do not provide “concierge” services such as maintaining potted plants, driveways, or pools (except for the community pool, which is serviced by a separate contractor).
• Access as a Prerequisite: Ms. Crites explained that backyard maintenance is contingent on homeowners leaving their gates unlocked, and some owners choose not to grant access due to pets or other reasons.
Judicial Findings and Rulings
Initial Decision (August 17, 2020)
The Administrative Law Judge denied the Petitioner’s initial petition based on a clear set of facts.
• Findings of Fact: The judge found the evidence presented by the Respondent to be credible. The Petitioner’s own admission that he refused to allow access to his backyard since January 2020 was a critical factor. The evidence established that the HOA had consistently maintained the front yard and made multiple, documented attempts to access the backyard.
• Conclusions of Law: The judge concluded that while § 5.1(a) of the CC&Rs requires the HOA to maintain yards, “nothing therein requires Respondent to maintain an individual member’s pool.” Because the Petitioner denied access, he could not establish that the Respondent had violated any CC&R.
Rehearing and Final Decision (February 12, 2021)
After the Commissioner for the Department of Real Estate granted a rehearing, the judge again reviewed the case and ultimately dismissed the petition, providing a more detailed legal analysis of the term “landscaping.”
• Burden of Proof: The judge reiterated that the Petitioner bore the burden to establish by a preponderance of the evidence that the HOA was legally obligated to maintain his pool and hardscape. The Petitioner failed to offer any definition or legal authority to support his expansive interpretation.
• Analysis of “Landscaping”: The judge found that the common definitions of “landscaping” from various dictionary and legal sources “cannot reasonably be read to include a swimming pool and the associated mechanical equipment.”
• Arizona Registrar of Contractors (ROC) Licensing: The judge’s conclusion was decisively reinforced by the State of Arizona’s contractor licensing classifications:
◦ The R-21 Hardscaping and Irrigation Systems license (formerly Landscaping) is for installing garden walls, irrigation, and other landscape features. It specifically precludes the licensee from contracting for “swimming pools, pool deck coatings.”
◦ The R-6 Swimming Pool Service and Repair license is a separate classification required to service residential pools.
◦ The judge concluded: “The Registrar’s licensing scheme supports a conclusion that landscaping maintenance and pool maintenance are two separate and distinct services.”
• Final Order: The petition was dismissed. The judge noted that because the Petitioner denied access, the Respondent was not in violation. However, the judge provided a forward-looking recommendation: “it is reasonable, going forward, for Respondent to communicate the days and times that it will be performing the landscaping of Petitioner’s back yard so that Petitioner can provide access for that service while maintaining safety precautions.”
Study Guide – 20F-H2020059-REL
Study Guide: Stoltenberg v. Rancho Del Oro Homeowners Association
This study guide provides a comprehensive review of the administrative legal dispute between homeowner Michael J. Stoltenberg and the Rancho Del Oro Homeowners Association. It covers the key arguments, evidence presented, and legal conclusions from two separate hearings. Use the following sections to test and deepen your understanding of the case.
Short-Answer Quiz
Instructions: Answer the following questions in two to three complete sentences, drawing all information from the provided case documents.
1. Who were the primary parties involved in this legal dispute, and what were their respective roles?
2. What was the core allegation made by the Petitioner against the Respondent in the initial petition filed on April 21, 2020?
3. According to Section 5.1 of the CC&Rs, what is the Association’s primary maintenance obligation regarding individual lots?
4. What specific and unique types of landscaping did the Petitioner claim required maintenance by the HOA?
5. What was the primary reason the Respondent’s landscaping contractor, Mowtown Landscape, was unable to perform maintenance in the Petitioner’s backyard?
6. What evidence did Diana Crites, the property manager, present to demonstrate the landscaper’s attempts to gain access to the backyard?
7. On what grounds did the Administrative Law Judge initially deny the Petitioner’s petition in the decision dated August 17, 2020?
8. What reasons did the Petitioner give for his request for a rehearing after the initial decision?
9. In the rehearing, how did the Administrative Law Judge legally define “landscaping” to determine the scope of the HOA’s duties?
10. What was the final order in the decision dated February 12, 2021, and what recommendation did the judge make for future interactions?
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Answer Key
1. The primary parties were Michael J. Stoltenberg, the homeowner, who served as the Petitioner, and the Rancho Del Oro Homeowners Association, which was the Respondent. The Petitioner brought the complaint alleging the HOA was not fulfilling its duties, while the Respondent defended its actions. The case was heard by Administrative Law Judge Sondra J. Vanella.
2. The Petitioner alleged that the Respondent had violated its Covenants, Conditions, and Restrictions (CC&Rs) § 5.1 and Arizona Revised Statutes § 10-3842. Specifically, he claimed the HOA failed “to do their job in 2020 with maintaining landscaping, and are acting in bad faith.” He also referenced a refusal to follow a previous court ruling.
3. Section 5.1 of the CC&Rs states that the Association’s maintenance duties “shall also include maintenance of the landscaping on individual Lots outside of structures.” This clause formed the basis of the Petitioner’s argument that the HOA was responsible for all landscaping on his property.
4. The Petitioner testified that his landscaping was unique, including xeriscape with geometric patterns, “water features” (which was a pool), and walking paths that needed staining. He also contended that when the rock in his front yard wore thin, the Respondent should be responsible for replenishing it.
5. The landscaping contractor could not access the Petitioner’s backyard because the gate was always locked. The Petitioner acknowledged he kept it locked for liability reasons due to the presence of his pool, which he referred to as a “water feature.”
6. Diana Crites presented a text message from the landscaper, Rian Baas, dated March 24, 2020, detailing how a woman at the residence stated she did not want anyone in the backyard because of the pool. Ms. Crites also presented a photograph of the locked gate and read a letter from Mr. Baas explaining his crew had knocked and left business cards weekly for two months without response.
7. The judge denied the petition because the Petitioner’s own admission established that he had refused to allow the Respondent access to his backyard since January 2020. The decision noted that the HOA had made multiple attempts to access the yard and had consistently maintained the front yard landscaping.
8. The Petitioner requested a rehearing on multiple grounds, including alleged irregularity in the proceedings by the judge, newly discovered evidence, errors in the admission of evidence, and that the decision was not supported by evidence. He also asserted that there were Americans with Disabilities Act (ADA) issues related to his hearing loss and privacy issues.
9. The judge referenced multiple online dictionaries (Oxford English Dictionary, Dictionary.com, etc.) and, most significantly, the Arizona Registrar of Contractors’ license classifications. She noted that landscaping (R-21 license) and swimming pool service (R-6 license) are two separate and distinct services, supporting the conclusion that pool maintenance is not included under the term “landscaping.”
10. The final order was that the Petitioner’s Petition was dismissed. However, the judge recommended that, going forward, it would be reasonable for the Respondent to communicate the days and times for landscaping so the Petitioner could provide access to his backyard while maintaining his safety precautions.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed to encourage deeper analysis of the case. Formulate a comprehensive response to each, structuring your answer as a short essay.
1. Analyze the role of “burden of proof” in this case. Explain what “preponderance of the evidence” means according to the source text and discuss how the Petitioner’s failure to meet this burden led to the dismissal of his petition in both hearings.
2. Discuss the conflict between the Petitioner’s right to secure his property (the locked gate) and the Respondent’s obligation to perform maintenance. How did the judge’s final recommendation attempt to resolve this practical conflict, even while legally siding with the Respondent?
3. Evaluate the Administrative Law Judge’s legal reasoning in the rehearing for defining “landscaping.” Why was the reference to the Arizona Registrar of Contractors’ licensing scheme a particularly persuasive piece of evidence compared to dictionary definitions alone?
4. Trace the evolution of the Petitioner’s arguments from the initial hearing to the rehearing. How did his claims regarding the scope of “landscaping” and his introduction of issues like ADA accommodation and the HOA’s legitimacy reflect a shift in legal strategy?
5. Based on the evidence presented by the Respondent’s witnesses (Diana Crites and Rian Baas), assess the HOA’s efforts to fulfill its maintenance obligations. Were the HOA’s actions reasonable under the circumstances described in the proceedings?
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings. In this case, Sondra J. Vanella served as the ALJ for the Office of Administrative Hearings.
A.R.S. (Arizona Revised Statutes)
The codified laws of the state of Arizona. The Petitioner cited A.R.S. § 10-3842 (Code of Conduct for Board Members) and the proceedings operated under the authority of A.R.S. § 32-2199(B) and other related statutes.
Burden of Proof
The obligation on a party in a dispute to provide sufficient evidence to support their claim. In this case, the Petitioner bore the burden of proof to establish that the Respondent violated its CC&Rs.
CC&Rs (Covenants, Conditions, and Restrictions)
The governing legal documents that set out the rules for a planned community. The central issue of this case was the interpretation of Section 5.1(a) of the Rancho Del Oro HOA’s CC&Rs regarding maintenance duties.
Concierge Landscape Services
A term used by witness Diana Crites to describe specialized, non-uniform services the HOA does not provide. Examples given included maintaining potted plants, driveways, or walls dividing properties, in contrast to the uniform mowing and blowing provided to all homeowners.
Office of Administrative Hearings
An independent state agency in Arizona that conducts evidentiary hearings for other state agencies. This office heard the dispute after it was referred by the Department of Real Estate.
Petitioner
The party who files a petition initiating a legal case. In this matter, the Petitioner was homeowner Michael J. Stoltenberg.
Preponderance of the Evidence
The evidentiary standard required for the Petitioner to win his case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and is considered the “greater weight of the evidence.”
Respondent
The party against whom a petition is filed. In this matter, the Respondent was the Rancho Del Oro Homeowners Association.
Xeriscape
A style of landscaping utilizing drought-tolerant plants and rock to minimize water use. The Petitioner mentioned his unique xeriscape with geometric patterns as part of the landscaping he expected the HOA to maintain.
Blog Post – 20F-H2020059-REL
Study Guide: Stoltenberg v. Rancho Del Oro Homeowners Association
This study guide provides a comprehensive review of the administrative legal dispute between homeowner Michael J. Stoltenberg and the Rancho Del Oro Homeowners Association. It covers the key arguments, evidence presented, and legal conclusions from two separate hearings. Use the following sections to test and deepen your understanding of the case.
Short-Answer Quiz
Instructions: Answer the following questions in two to three complete sentences, drawing all information from the provided case documents.
1. Who were the primary parties involved in this legal dispute, and what were their respective roles?
2. What was the core allegation made by the Petitioner against the Respondent in the initial petition filed on April 21, 2020?
3. According to Section 5.1 of the CC&Rs, what is the Association’s primary maintenance obligation regarding individual lots?
4. What specific and unique types of landscaping did the Petitioner claim required maintenance by the HOA?
5. What was the primary reason the Respondent’s landscaping contractor, Mowtown Landscape, was unable to perform maintenance in the Petitioner’s backyard?
6. What evidence did Diana Crites, the property manager, present to demonstrate the landscaper’s attempts to gain access to the backyard?
7. On what grounds did the Administrative Law Judge initially deny the Petitioner’s petition in the decision dated August 17, 2020?
8. What reasons did the Petitioner give for his request for a rehearing after the initial decision?
9. In the rehearing, how did the Administrative Law Judge legally define “landscaping” to determine the scope of the HOA’s duties?
10. What was the final order in the decision dated February 12, 2021, and what recommendation did the judge make for future interactions?
——————————————————————————–
Answer Key
1. The primary parties were Michael J. Stoltenberg, the homeowner, who served as the Petitioner, and the Rancho Del Oro Homeowners Association, which was the Respondent. The Petitioner brought the complaint alleging the HOA was not fulfilling its duties, while the Respondent defended its actions. The case was heard by Administrative Law Judge Sondra J. Vanella.
2. The Petitioner alleged that the Respondent had violated its Covenants, Conditions, and Restrictions (CC&Rs) § 5.1 and Arizona Revised Statutes § 10-3842. Specifically, he claimed the HOA failed “to do their job in 2020 with maintaining landscaping, and are acting in bad faith.” He also referenced a refusal to follow a previous court ruling.
3. Section 5.1 of the CC&Rs states that the Association’s maintenance duties “shall also include maintenance of the landscaping on individual Lots outside of structures.” This clause formed the basis of the Petitioner’s argument that the HOA was responsible for all landscaping on his property.
4. The Petitioner testified that his landscaping was unique, including xeriscape with geometric patterns, “water features” (which was a pool), and walking paths that needed staining. He also contended that when the rock in his front yard wore thin, the Respondent should be responsible for replenishing it.
5. The landscaping contractor could not access the Petitioner’s backyard because the gate was always locked. The Petitioner acknowledged he kept it locked for liability reasons due to the presence of his pool, which he referred to as a “water feature.”
6. Diana Crites presented a text message from the landscaper, Rian Baas, dated March 24, 2020, detailing how a woman at the residence stated she did not want anyone in the backyard because of the pool. Ms. Crites also presented a photograph of the locked gate and read a letter from Mr. Baas explaining his crew had knocked and left business cards weekly for two months without response.
7. The judge denied the petition because the Petitioner’s own admission established that he had refused to allow the Respondent access to his backyard since January 2020. The decision noted that the HOA had made multiple attempts to access the yard and had consistently maintained the front yard landscaping.
8. The Petitioner requested a rehearing on multiple grounds, including alleged irregularity in the proceedings by the judge, newly discovered evidence, errors in the admission of evidence, and that the decision was not supported by evidence. He also asserted that there were Americans with Disabilities Act (ADA) issues related to his hearing loss and privacy issues.
9. The judge referenced multiple online dictionaries (Oxford English Dictionary, Dictionary.com, etc.) and, most significantly, the Arizona Registrar of Contractors’ license classifications. She noted that landscaping (R-21 license) and swimming pool service (R-6 license) are two separate and distinct services, supporting the conclusion that pool maintenance is not included under the term “landscaping.”
10. The final order was that the Petitioner’s Petition was dismissed. However, the judge recommended that, going forward, it would be reasonable for the Respondent to communicate the days and times for landscaping so the Petitioner could provide access to his backyard while maintaining his safety precautions.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed to encourage deeper analysis of the case. Formulate a comprehensive response to each, structuring your answer as a short essay.
1. Analyze the role of “burden of proof” in this case. Explain what “preponderance of the evidence” means according to the source text and discuss how the Petitioner’s failure to meet this burden led to the dismissal of his petition in both hearings.
2. Discuss the conflict between the Petitioner’s right to secure his property (the locked gate) and the Respondent’s obligation to perform maintenance. How did the judge’s final recommendation attempt to resolve this practical conflict, even while legally siding with the Respondent?
3. Evaluate the Administrative Law Judge’s legal reasoning in the rehearing for defining “landscaping.” Why was the reference to the Arizona Registrar of Contractors’ licensing scheme a particularly persuasive piece of evidence compared to dictionary definitions alone?
4. Trace the evolution of the Petitioner’s arguments from the initial hearing to the rehearing. How did his claims regarding the scope of “landscaping” and his introduction of issues like ADA accommodation and the HOA’s legitimacy reflect a shift in legal strategy?
5. Based on the evidence presented by the Respondent’s witnesses (Diana Crites and Rian Baas), assess the HOA’s efforts to fulfill its maintenance obligations. Were the HOA’s actions reasonable under the circumstances described in the proceedings?
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings. In this case, Sondra J. Vanella served as the ALJ for the Office of Administrative Hearings.
A.R.S. (Arizona Revised Statutes)
The codified laws of the state of Arizona. The Petitioner cited A.R.S. § 10-3842 (Code of Conduct for Board Members) and the proceedings operated under the authority of A.R.S. § 32-2199(B) and other related statutes.
Burden of Proof
The obligation on a party in a dispute to provide sufficient evidence to support their claim. In this case, the Petitioner bore the burden of proof to establish that the Respondent violated its CC&Rs.
CC&Rs (Covenants, Conditions, and Restrictions)
The governing legal documents that set out the rules for a planned community. The central issue of this case was the interpretation of Section 5.1(a) of the Rancho Del Oro HOA’s CC&Rs regarding maintenance duties.
Concierge Landscape Services
A term used by witness Diana Crites to describe specialized, non-uniform services the HOA does not provide. Examples given included maintaining potted plants, driveways, or walls dividing properties, in contrast to the uniform mowing and blowing provided to all homeowners.
Office of Administrative Hearings
An independent state agency in Arizona that conducts evidentiary hearings for other state agencies. This office heard the dispute after it was referred by the Department of Real Estate.
Petitioner
The party who files a petition initiating a legal case. In this matter, the Petitioner was homeowner Michael J. Stoltenberg.
Preponderance of the Evidence
The evidentiary standard required for the Petitioner to win his case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and is considered the “greater weight of the evidence.”
Respondent
The party against whom a petition is filed. In this matter, the Respondent was the Rancho Del Oro Homeowners Association.
Xeriscape
A style of landscaping utilizing drought-tolerant plants and rock to minimize water use. The Petitioner mentioned his unique xeriscape with geometric patterns as part of the landscaping he expected the HOA to maintain.
Case Participants
Petitioner Side
Michael J. Stoltenberg(petitioner) Appeared on his own behalf
Respondent Side
Nicole Payne(HOA attorney) Represented Respondent Rancho Del Oro Homeowners Association
Diana Crites(property manager) Crites and Associates Owner of Respondent’s property management company; appeared as witness
Rian Baas(witness) Mowtown Landscape Owner of landscaping company contracted by Respondent
Lydia A. Peirce Linsmeier(HOA attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Listed as recipient of the decision
Luis(employee) Mowtown Landscape (Implied) Crew member mentioned in text message regarding attempted access to petitioner's yard
Jill(employee) Mowtown Landscape (Implied) Printed papers for Luis regarding access to petitioner's yard
Neutral Parties
Sondra J. Vanella(ALJ) Administrative Law Judge
Judy Lowe(commissioner) Arizona Department of Real Estate
