Marc Archer v. PMPE Community Association, Inc.

Case Summary

Case ID 20F-H2020063-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2021-03-16
Administrative Law Judge Tammy L. Eigenheer
Outcome none
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Marc Archer Counsel
Respondent PMPE Community Association, Inc. Counsel Nicholas Nogami, Esq.

Alleged Violations

A.R.S. § 32-2199.02(B)

Outcome Summary

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.

Filing fee: $0.00, Fee refunded: No

Disposition: dismissed

Cited:

  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Analytics Highlights

Topics: Rehearing, Withdrawal, Vacated Hearing, Procedural
Additional Citations:

  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Marc Archer v. PMPE Community Association, Inc.

Case Summary

Case ID 20F-H2020063-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2021-03-16
Administrative Law Judge Tammy L. Eigenheer
Outcome none
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Marc Archer Counsel
Respondent PMPE Community Association, Inc. Counsel Nicholas Nogami, Esq.

Alleged Violations

A.R.S. § 32-2199.02(B)

Outcome Summary

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.

Filing fee: $0.00, Fee refunded: No

Disposition: dismissed

Cited:

  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Analytics Highlights

Topics: Rehearing, Withdrawal, Vacated Hearing, Procedural
Additional Citations:

  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Marc Archer v. PMPE Community Association, Inc.

Case Summary

Case ID 20F-H2020063-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2021-03-16
Administrative Law Judge Tammy L. Eigenheer
Outcome none
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Marc Archer Counsel
Respondent PMPE Community Association, Inc. Counsel Nicholas Nogami, Esq.

Alleged Violations

A.R.S. § 32-2199.02(B)

Outcome Summary

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.

Filing fee: $0.00, Fee refunded: No

Disposition: dismissed

Cited:

  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Analytics Highlights

Topics: Rehearing, Withdrawal, Vacated Hearing, Procedural
Additional Citations:

  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Marc Archer v. PMPE Community Association, Inc.

Case Summary

Case ID 20F-H2020063-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2021-03-16
Administrative Law Judge Tammy L. Eigenheer
Outcome none
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Marc Archer Counsel
Respondent PMPE Community Association, Inc. Counsel Nicholas Nogami, Esq.

Alleged Violations

A.R.S. § 32-2199.02(B)

Outcome Summary

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.

Filing fee: $0.00, Fee refunded: No

Disposition: dismissed

Cited:

  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Analytics Highlights

Topics: Rehearing, Withdrawal, Vacated Hearing, Procedural
Additional Citations:

  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Marc Archer v. PMPE Community Association, Inc.

Case Summary

Case ID 20F-H2020063-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2021-03-16
Administrative Law Judge Tammy L. Eigenheer
Outcome none
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Marc Archer Counsel
Respondent PMPE Community Association, Inc. Counsel Nicholas Nogami, Esq.

Alleged Violations

A.R.S. § 32-2199.02(B)

Outcome Summary

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.

Filing fee: $0.00, Fee refunded: No

Disposition: dismissed

Cited:

  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Analytics Highlights

Topics: Rehearing, Withdrawal, Vacated Hearing, Procedural
Additional Citations:

  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Marc Archer v. PMPE Community Association, Inc.

Case Summary

Case ID 20F-H2020063-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2021-03-16
Administrative Law Judge Tammy L. Eigenheer
Outcome none
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Marc Archer Counsel
Respondent PMPE Community Association, Inc. Counsel Nicholas Nogami, Esq.

Alleged Violations

A.R.S. § 32-2199.02(B)

Outcome Summary

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.

Filing fee: $0.00, Fee refunded: No

Disposition: dismissed

Cited:

  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Analytics Highlights

Topics: Rehearing, Withdrawal, Vacated Hearing, Procedural
Additional Citations:

  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Carlos J Sanchez & Marinda K Minch, vs. Tempe Villages Homeowners

Case Summary

Case ID 21F-H2121033-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-03-09
Administrative Law Judge Sondra J. Vanella
Outcome none
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Carlos J. Sanchez & Marinda K. Minch Counsel
Respondent Tempe Villages Homeowners Association, Inc. Counsel Ashley Moscarello

Alleged Violations

Bylaws Article 4 Section 1

Outcome Summary

The Petition was dismissed because Petitioners failed to prove the Respondent HOA violated the Bylaws regarding the filling of a vacant Board seat. The ALJ determined the Bylaws did not impose a timeframe for filling the vacancy and the Board acted according to Article IV, Section 3.

Why this result: Petitioners failed to meet the burden of proof to establish the violation by a preponderance of the evidence. The Bylaws do not contain a provision providing a timeframe in which a vacancy on the Board must be filled.

Key Issues & Findings

Violation of Bylaws regarding Board of Directors composition and appointment

Petitioners alleged the HOA violated Bylaws Article 4 Section 1 by leaving a Board seat open following a resignation (August 2020) and not filling it until November 2020. The ALJ found the Bylaws (Sections 1, 2, and 3) did not mandate a timeframe for filling a vacancy, and the HOA followed procedures for appointment.

Orders: Petitioners’ Petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 32-2199
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • A.A.C. R2-19-119(B)(2)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09

Analytics Highlights

Topics: HOA Governance, Board of Directors, Bylaws, Board Vacancy
Additional Citations:

  • A.R.S. § 32-2199
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • A.A.C. R2-19-119(B)(2)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

21F-H2121033-REL Decision – 862059.pdf

Uploaded 2026-01-23T17:36:41 (132.3 KB)

Questions

Question

If a Board member resigns, does the HOA have to hold an election to fill the seat?

Short Answer

Not necessarily. Bylaws may allow the remaining Board members to appoint a successor for the unexpired term.

Detailed Answer

In this case, the Bylaws explicitly stated that in the event of a resignation, the remaining Board members select the successor. The ALJ found that the Board was not required to put this seat up for a general election, distinguishing it from seats with expiring terms.

Alj Quote

In the event of death, resignation or removal of a director, his successor shall be selected by the remaining members of the Board and shall serve for the unexpired term of his predecessor.

Legal Basis

Bylaws Article IV, Section 3

Topic Tags

  • Board Vacancies
  • Elections
  • Bylaws

Question

Is there a specific deadline for the Board to fill a vacant seat after a resignation?

Short Answer

Only if the governing documents specify one. If the Bylaws are silent, there is no strict timeframe.

Detailed Answer

The ALJ ruled that because the community's Bylaws did not specify a deadline, the HOA did not violate the rules by waiting several months (from August to November) to fill the vacancy.

Alj Quote

The Bylaws do not contain a timeframe in which the Board must appoint a successor director after the resignation of a director.

Legal Basis

Bylaws Interpretation

Topic Tags

  • Board Vacancies
  • Timelines
  • Bylaws

Question

Can the Community Manager appoint or remove Board members?

Short Answer

No. The authority to appoint or remove directors typically lies with the Board or the membership, not the manager.

Detailed Answer

The Community Manager testified that they lacked the authority to make such appointments, confirming that this power resides with the Board itself.

Alj Quote

Mr. Nurse further testified that he does not have the authority to appoint or remove members of the Board.

Legal Basis

Testimony / Findings of Fact

Topic Tags

  • Community Manager
  • Authority
  • Board Composition

Question

What is the 'burden of proof' for a homeowner suing their HOA in an administrative hearing?

Short Answer

The homeowner (Petitioner) must prove the violation by a 'preponderance of the evidence'.

Detailed Answer

This legal standard requires the homeowner to show that their claims are 'more probably true than not.' It is not enough to simply make an allegation; superior evidentiary weight is required.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A)

Topic Tags

  • Legal Standards
  • Burden of Proof
  • Evidence

Question

Can I force the Board to hold a vote for a vacant seat if the term hasn't expired yet?

Short Answer

Generally, no. If the term is unexpired, it may not be eligible for a member vote if the Bylaws provide for appointment.

Detailed Answer

The ALJ accepted the explanation that a seat vacated by resignation was not eligible for the general member vote because the original term had not yet expired (it ran until 2022), whereas other seats were up for election because their terms had ended.

Alj Quote

Mr. Nurse explained that the term for the Board member who resigned does not expire until 2022, and as such was not eligible for a member vote.

Legal Basis

Findings of Fact / Bylaws

Topic Tags

  • Elections
  • Board Terms
  • Voting

Question

Does personal dislike or bias by the Board constitute a violation of the Bylaws?

Short Answer

Not on its own. The homeowner must prove a specific violation of the governing documents.

Detailed Answer

Although the homeowner claimed the Board disliked her and was trying to keep her out, the ALJ dismissed the petition because the HOA followed the technical requirements of the Bylaws regarding elections and appointments.

Alj Quote

Petitioners failed to prove by a preponderance of the evidence that Respondent violated the Bylaws as alleged in the Petition.

Legal Basis

Conclusions of Law

Topic Tags

  • Discrimination/Bias
  • Enforcement
  • Board Conduct

Case

Docket No
21F-H2121033-REL
Case Title
Carlos J. Sanchez & Marinda K. Minch v. Tempe Villages Homeowners Association, Inc.
Decision Date
2021-03-09
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Questions

Question

If a Board member resigns, does the HOA have to hold an election to fill the seat?

Short Answer

Not necessarily. Bylaws may allow the remaining Board members to appoint a successor for the unexpired term.

Detailed Answer

In this case, the Bylaws explicitly stated that in the event of a resignation, the remaining Board members select the successor. The ALJ found that the Board was not required to put this seat up for a general election, distinguishing it from seats with expiring terms.

Alj Quote

In the event of death, resignation or removal of a director, his successor shall be selected by the remaining members of the Board and shall serve for the unexpired term of his predecessor.

Legal Basis

Bylaws Article IV, Section 3

Topic Tags

  • Board Vacancies
  • Elections
  • Bylaws

Question

Is there a specific deadline for the Board to fill a vacant seat after a resignation?

Short Answer

Only if the governing documents specify one. If the Bylaws are silent, there is no strict timeframe.

Detailed Answer

The ALJ ruled that because the community's Bylaws did not specify a deadline, the HOA did not violate the rules by waiting several months (from August to November) to fill the vacancy.

Alj Quote

The Bylaws do not contain a timeframe in which the Board must appoint a successor director after the resignation of a director.

Legal Basis

Bylaws Interpretation

Topic Tags

  • Board Vacancies
  • Timelines
  • Bylaws

Question

Can the Community Manager appoint or remove Board members?

Short Answer

No. The authority to appoint or remove directors typically lies with the Board or the membership, not the manager.

Detailed Answer

The Community Manager testified that they lacked the authority to make such appointments, confirming that this power resides with the Board itself.

Alj Quote

Mr. Nurse further testified that he does not have the authority to appoint or remove members of the Board.

Legal Basis

Testimony / Findings of Fact

Topic Tags

  • Community Manager
  • Authority
  • Board Composition

Question

What is the 'burden of proof' for a homeowner suing their HOA in an administrative hearing?

Short Answer

The homeowner (Petitioner) must prove the violation by a 'preponderance of the evidence'.

Detailed Answer

This legal standard requires the homeowner to show that their claims are 'more probably true than not.' It is not enough to simply make an allegation; superior evidentiary weight is required.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A)

Topic Tags

  • Legal Standards
  • Burden of Proof
  • Evidence

Question

Can I force the Board to hold a vote for a vacant seat if the term hasn't expired yet?

Short Answer

Generally, no. If the term is unexpired, it may not be eligible for a member vote if the Bylaws provide for appointment.

Detailed Answer

The ALJ accepted the explanation that a seat vacated by resignation was not eligible for the general member vote because the original term had not yet expired (it ran until 2022), whereas other seats were up for election because their terms had ended.

Alj Quote

Mr. Nurse explained that the term for the Board member who resigned does not expire until 2022, and as such was not eligible for a member vote.

Legal Basis

Findings of Fact / Bylaws

Topic Tags

  • Elections
  • Board Terms
  • Voting

Question

Does personal dislike or bias by the Board constitute a violation of the Bylaws?

Short Answer

Not on its own. The homeowner must prove a specific violation of the governing documents.

Detailed Answer

Although the homeowner claimed the Board disliked her and was trying to keep her out, the ALJ dismissed the petition because the HOA followed the technical requirements of the Bylaws regarding elections and appointments.

Alj Quote

Petitioners failed to prove by a preponderance of the evidence that Respondent violated the Bylaws as alleged in the Petition.

Legal Basis

Conclusions of Law

Topic Tags

  • Discrimination/Bias
  • Enforcement
  • Board Conduct

Case

Docket No
21F-H2121033-REL
Case Title
Carlos J. Sanchez & Marinda K. Minch v. Tempe Villages Homeowners Association, Inc.
Decision Date
2021-03-09
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Carlos J. Sanchez (petitioner)
    Candidate for Board election
  • Marinda K. Minch (petitioner)
    Candidate for Board election; considered for vacancy appointment; testified

Respondent Side

  • Ashley Moscarello (HOA attorney)
    Goodman Lawgroup
  • Bradley Hudson (board member)
    Tempe Villages Homeowners Association, Inc. Board
    President of the Board; testified as witness
  • Shawn Nurse (community manager)
    Tempe Villages Homeowners Association, Inc.
    Testified as witness; received ballots for election
  • William Skanadore (board member)
    Tempe Villages Homeowners Association, Inc. Board
    Incumbent candidate; elected
  • Will Terrick (board member)
    Tempe Villages Homeowners Association, Inc. Board
    Incumbent candidate; elected
  • Wendelyn Neal (board member)
    Tempe Villages Homeowners Association, Inc. Board
    Made motion to appoint Marinda Minch
  • Joel Krick (board member)
    Tempe Villages Homeowners Association, Inc. Board
  • Kathy Hudson (board member)
    Tempe Villages Homeowners Association, Inc. Board
  • Christiane Pieraggi (board member)
    Tempe Villages Homeowners Association, Inc. Board
    Appointed to fill vacancy

Neutral Parties

  • Sondra J. Vanella (ALJ)
    OAH
  • Judy Lowe (commissioner)
    ADRE

Other Participants

  • John Neelsen (unknown)
    Candidate for Board election
  • Tania Almonte (board member)
    Tempe Villages Homeowners Association, Inc. Board
    Former Board member whose resignation created a vacancy
  • Ruby (witness assistant)
    Aided in counting votes

Aaron Ricks (Somerstone Properties, LLC), v. Montelena Master

Case Summary

Case ID 21F-H2120024-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-02-16
Administrative Law Judge Tammy L. Eigenheer
Outcome none
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Aaron Ricks (Somerstone Properties, LLC) Counsel
Respondent Montelena Master Community Association Counsel Troy Stratman

Alleged Violations

A.R.S. § 33-442, A.R.S. § 33-1806

Outcome Summary

The Administrative Law Judge dismissed the Petition because the Petitioner failed to meet the burden of proof to establish that the Montelena Master Community Association violated A.R.S. § 33-442 or its CC&Rs regarding the imposition of a transfer fee. The ALJ found that the use of the fee to fund operating expenses and/or reserves was an acceptable purpose under the relevant statute.

Why this result: Petitioner failed to establish Respondent acted in violation of the community documents and A.R.S. § 33-442.

Key Issues & Findings

Challenge to unauthorized/unlawful transfer fees charged by HOA

Petitioner alleged that the $2500.00 transfer fee charged to the purchaser was an unlawful transfer fee in violation of A.R.S. § 33-442 and specific CC&R provisions, arguing that the authorized use of the fee (Master Association’s operating expenses and/or reserves) was not specific enough to meet the statutory exception under A.R.S. § 33-442(C).

Orders: Petitioner’s petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1806
  • A.R.S. § 33-442
  • A.R.S. § 32-2199
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)

Analytics Highlights

Topics: HOA transfer fee, A.R.S. 33-442, CC&R violation, Operating expenses, Reserves
Additional Citations:

  • A.R.S. § 33-1806
  • A.R.S. § 33-442
  • A.R.S. § 32-2199
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)

Video Overview

Audio Overview

Decision Documents

21F-H2120024-REL Decision – 855401.pdf

Uploaded 2026-01-23T17:36:12 (95.8 KB)

Questions

Question

Who is responsible for proving that an HOA violated the law or community documents during a hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing, the homeowner filing the petition must prove that the HOA committed the alleged violations. This must be established by a 'preponderance of the evidence,' meaning the homeowner's claims are more likely true than not.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent committed the alleged violations by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1)

Topic Tags

  • burden of proof
  • legal procedure
  • evidence

Question

Can an HOA charge a transfer fee that is used for general operating expenses rather than a specific project?

Short Answer

Yes, funding operating expenses or reserves is considered a valid purpose.

Detailed Answer

Under Arizona law (A.R.S. § 33-442), transfer fees are generally prohibited unless they fall under specific exceptions. One exception is if the fee is used for a purpose authorized in the document. The ALJ ruled that using fees for 'operating expenses and/or… reserves' satisfies this requirement; it does not need to be for a specific limited purpose like a swimming pool.

Alj Quote

Petitioner offered no authority to support his interpretation that A.R.S. § 33-442 required that the transfer fee had to be for a more specific purpose than those identified in the governing documents.

Legal Basis

A.R.S. § 33-442(C)

Topic Tags

  • transfer fees
  • operating expenses
  • financial management

Question

Can the HOA Board set the amount of a transfer fee without a vote if the CC&Rs allow it?

Short Answer

Yes, if the CC&Rs grant the Board the authority to set the amount.

Detailed Answer

If the community's Declaration of Covenants, Conditions, and Restrictions (CC&Rs) specifically states that the transfer fee amount is 'to be set by the Board' or established 'from time to time by the Board,' the Board has the authority to determine the fee amount.

Alj Quote

The Master Association may require the new Owner of a Lot or Parcel to pay to the Master Association, or its designated representative, a transfer fee in an amount to be set by the Board . . . .

Legal Basis

CC&Rs Section 6.6; CC&Rs Section 7.15

Topic Tags

  • board authority
  • CC&Rs
  • fees

Question

Can an HOA charge both a Transfer Fee and a Reserve Contribution fee on the same sale?

Short Answer

Yes, an HOA can charge multiple distinct fees if authorized by the governing documents.

Detailed Answer

The ALJ found that a Transfer Fee can be charged in addition to other fees, such as a Reserve Contribution, provided the governing documents (like a Board Resolution or CC&Rs) explicitly state that the fee is in addition to other assessments.

Alj Quote

This Transfer Fee shall be in addition to any other fees and assessments due and payable in relation to the transfer of the property, including, but not limited to, a Reserve Contribution pursuant to Article 6, Section 6.9 of the Declaration.

Legal Basis

Board Resolution (Recorded July 23, 2010)

Topic Tags

  • reserve contribution
  • transfer fees
  • closing costs

Question

What does 'preponderance of the evidence' mean in an HOA dispute?

Short Answer

It means the evidence shows a claim is more probably true than not.

Detailed Answer

This legal standard requires the party with the burden of proof to provide evidence that has 'superior evidentiary weight.' It does not mean removing all doubt, but rather sufficient evidence to incline a fair mind to one side over the other.

Alj Quote

A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.

Legal Basis

Arizona Law of Evidence § 5

Topic Tags

  • legal definitions
  • evidence
  • standard of proof

Question

Is a transfer fee valid if I purchased the property out of bankruptcy?

Short Answer

Yes, if the CC&Rs require payment immediately upon becoming the owner.

Detailed Answer

The manner of purchase (e.g., out of bankruptcy) does not automatically exempt an owner from transfer fees if the CC&Rs mandate that 'Each person or entity who purchases a Lot… shall pay… immediately upon becoming the Owner.'

Alj Quote

Therefore, Respondent was able to charge Petitioner the transfer fee pursuant to his purchase of the property out of bankruptcy.

Legal Basis

CC&Rs Section 7.15

Topic Tags

  • bankruptcy
  • property transfer
  • exemptions

Case

Docket No
21F-H2120024-REL
Case Title
Aaron Ricks (Somerstone Properties, LLC) v. Montelena Master Community Association
Decision Date
2021-02-16
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Questions

Question

Who is responsible for proving that an HOA violated the law or community documents during a hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing, the homeowner filing the petition must prove that the HOA committed the alleged violations. This must be established by a 'preponderance of the evidence,' meaning the homeowner's claims are more likely true than not.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent committed the alleged violations by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1)

Topic Tags

  • burden of proof
  • legal procedure
  • evidence

Question

Can an HOA charge a transfer fee that is used for general operating expenses rather than a specific project?

Short Answer

Yes, funding operating expenses or reserves is considered a valid purpose.

Detailed Answer

Under Arizona law (A.R.S. § 33-442), transfer fees are generally prohibited unless they fall under specific exceptions. One exception is if the fee is used for a purpose authorized in the document. The ALJ ruled that using fees for 'operating expenses and/or… reserves' satisfies this requirement; it does not need to be for a specific limited purpose like a swimming pool.

Alj Quote

Petitioner offered no authority to support his interpretation that A.R.S. § 33-442 required that the transfer fee had to be for a more specific purpose than those identified in the governing documents.

Legal Basis

A.R.S. § 33-442(C)

Topic Tags

  • transfer fees
  • operating expenses
  • financial management

Question

Can the HOA Board set the amount of a transfer fee without a vote if the CC&Rs allow it?

Short Answer

Yes, if the CC&Rs grant the Board the authority to set the amount.

Detailed Answer

If the community's Declaration of Covenants, Conditions, and Restrictions (CC&Rs) specifically states that the transfer fee amount is 'to be set by the Board' or established 'from time to time by the Board,' the Board has the authority to determine the fee amount.

Alj Quote

The Master Association may require the new Owner of a Lot or Parcel to pay to the Master Association, or its designated representative, a transfer fee in an amount to be set by the Board . . . .

Legal Basis

CC&Rs Section 6.6; CC&Rs Section 7.15

Topic Tags

  • board authority
  • CC&Rs
  • fees

Question

Can an HOA charge both a Transfer Fee and a Reserve Contribution fee on the same sale?

Short Answer

Yes, an HOA can charge multiple distinct fees if authorized by the governing documents.

Detailed Answer

The ALJ found that a Transfer Fee can be charged in addition to other fees, such as a Reserve Contribution, provided the governing documents (like a Board Resolution or CC&Rs) explicitly state that the fee is in addition to other assessments.

Alj Quote

This Transfer Fee shall be in addition to any other fees and assessments due and payable in relation to the transfer of the property, including, but not limited to, a Reserve Contribution pursuant to Article 6, Section 6.9 of the Declaration.

Legal Basis

Board Resolution (Recorded July 23, 2010)

Topic Tags

  • reserve contribution
  • transfer fees
  • closing costs

Question

What does 'preponderance of the evidence' mean in an HOA dispute?

Short Answer

It means the evidence shows a claim is more probably true than not.

Detailed Answer

This legal standard requires the party with the burden of proof to provide evidence that has 'superior evidentiary weight.' It does not mean removing all doubt, but rather sufficient evidence to incline a fair mind to one side over the other.

Alj Quote

A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.

Legal Basis

Arizona Law of Evidence § 5

Topic Tags

  • legal definitions
  • evidence
  • standard of proof

Question

Is a transfer fee valid if I purchased the property out of bankruptcy?

Short Answer

Yes, if the CC&Rs require payment immediately upon becoming the owner.

Detailed Answer

The manner of purchase (e.g., out of bankruptcy) does not automatically exempt an owner from transfer fees if the CC&Rs mandate that 'Each person or entity who purchases a Lot… shall pay… immediately upon becoming the Owner.'

Alj Quote

Therefore, Respondent was able to charge Petitioner the transfer fee pursuant to his purchase of the property out of bankruptcy.

Legal Basis

CC&Rs Section 7.15

Topic Tags

  • bankruptcy
  • property transfer
  • exemptions

Case

Docket No
21F-H2120024-REL
Case Title
Aaron Ricks (Somerstone Properties, LLC) v. Montelena Master Community Association
Decision Date
2021-02-16
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Aaron Ricks (petitioner)
    Somerstone Properties, LLC

Respondent Side

  • Troy Stratman (HOA attorney)
    Stratman Law Firm, PLC

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

MICHAEL J. STOLTENBERG v. RANCHO DEL ORO HOMEOWNERS ASSOCIATION

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

Case Summary

Case ID 20F-H2020059-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2021-02-12
Administrative Law Judge Sondra J. Vanella
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

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

Alleged Violations

CC&Rs § 5.1; A.R.S. § 10-3842

Outcome Summary

The Administrative Law Judge dismissed the petition because the Petitioner failed to meet the burden of proof to show that the HOA violated the governing documents, primarily because the Petitioner refused access to his back yard, and the CC&Rs were not interpreted to include maintenance of an individual homeowner’s swimming pool.

Why this result: Petitioner refused to allow the HOA access to his back yard to perform landscape services, and failed to establish that pool maintenance was included in the HOA’s landscaping responsibility under the CC&Rs.

Key Issues & Findings

Failure to maintain landscaping and acting in bad faith

Petitioner alleged the HOA violated CC&Rs § 5.1 and A.R.S. § 10-3842 by failing to maintain landscaping in 2020. The dispute centered on whether landscaping duties included Petitioner's private pool/hardscape and Petitioner's refusal to grant access to his locked backyard for maintenance services.

Orders: Petition dismissed. Respondent was required to communicate the days and times for performing back yard landscaping so Petitioner could provide access while maintaining safety precautions.

Filing fee: $0.00

Disposition: respondent_win

Cited:

  • CC&Rs § 5.1
  • A.R.S. § 10-3842

Analytics Highlights

Topics: Landscaping, Pool Maintenance, Access Denial, CC&R Enforcement, A.R.S. § 10-3842
Additional Citations:

  • 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. § 32-2199.02(B)
  • CC&Rs § 5.1
  • A.R.S. § 10-3842

Video Overview

Audio Overview

Decision Documents

20F-H2020059-REL-RHG Decision – 855028.pdf

Uploaded 2025-10-09T03:35:25 (139.1 KB)

20F-H2020059-REL-RHG Decision – ../20F-H2020059-REL/815480.pdf

Uploaded 2026-01-20T13:57:27 (124.1 KB)





Briefing Doc – 20F-H2020059-REL-RHG


Briefing on Stoltenberg v. Rancho Del Oro Homeowners Association

Executive Summary

This document synthesizes the findings and rulings from two administrative hearings concerning a dispute between homeowner Michael J. Stoltenberg (Petitioner) and the Rancho Del Oro Homeowners Association (Respondent). The Petitioner alleged the HOA violated its governing documents by failing to maintain landscaping at his property. The case was ultimately dismissed after an initial hearing and a subsequent rehearing.

The core of the dispute centered on two key issues: the scope of “landscaping” services required by the HOA’s Covenants, Conditions, and Restrictions (CC&Rs), and the Petitioner’s denial of access to his backyard. The Petitioner argued that the undefined term “landscaping” in the CC&Rs should be interpreted broadly to include maintenance of his private swimming pool, which he referred to as a “water feature.” Concurrently, he acknowledged keeping his backyard gate locked for liability reasons related to the pool, preventing the HOA’s contractor from performing any work.

The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to meet his burden of proof. The judge concluded that the HOA had made repeated, documented attempts to perform its duties, but was actively prevented from doing so by the Petitioner. Critically, the judge ruled that a reasonable interpretation of “landscaping,” supported by dictionary definitions and the Arizona Registrar of Contractors’ distinct licensing classifications for landscaping and swimming pool services, does not include the maintenance of a private pool and its associated mechanical equipment.

I. Case Overview

Case Detail

Information

Case Number

20F-H2020059-REL and 20F-H2020059-REL-RHG (Rehearing)

Petitioner

Michael J. Stoltenberg (Homeowner at 11777 E. Calle Gaudi, Yuma, AZ)

Respondent

Rancho Del Oro Homeowners Association (HOA)

Office of Administrative Hearings, Arizona

Presiding Judge

Administrative Law Judge Sondra J. Vanella

Hearing Dates

August 3, 2020 (Initial Hearing) and February 2, 2021 (Rehearing)

Final Disposition

Petition Dismissed (February 12, 2021)

II. Petitioner’s Allegations and Arguments

The Petitioner filed a petition with the Arizona Department of Real Estate on or about April 21, 2020, alleging the HOA acted in “bad faith” and failed to perform its duties in 2020. The core of his case was built on the following claims:

Violation of CC&Rs: The Petitioner alleged a violation of § 5.1 of the HOA’s CC&Rs, which mandates that the “Association shall maintain… landscaping on individual Lots outside of structures.” He also alleged a violation of Arizona Revised Statutes (A.R.S.) § 10-3842, although this was not addressed at the hearing.

Broad Interpretation of “Landscaping”: The Petitioner contended that since the CC&Rs do not define “landscaping,” the term should encompass all features on his lot. He specifically asserted that the HOA was responsible for maintaining:

◦ His swimming pool (referred to as a “water feature”), including the pump, filter, and chemicals.

◦ His unique xeriscape with geometric patterns.

◦ Walking paths that required staining.

◦ Replenishing decorative rock when it wears thin.

◦ The patio and all hardscape.

Denial of Access: The Petitioner acknowledged that the gate to his backyard was “always locked for liability reasons” due to the pool. At the rehearing, he argued that the HOA failed to communicate the landscaping schedule, which would have afforded him an opportunity to unlock the gate.

Rehearing Claims: In his request for a rehearing, the Petitioner cited several grounds, including an abuse of discretion by the judge, errors in evidence, and issues related to the Americans with Disabilities Act (ADA), claiming hearing loss put him at a “severe disadvantage.” At the rehearing itself, he also asserted that the Respondent was “falsely representing themselves as an HOA” and did not have an elected Board.

III. Respondent’s Defense and Evidence

The HOA, represented by Nicole Payne, Esq., argued that it had fulfilled its obligations and that any failure to maintain the Petitioner’s backyard was due to his own actions.

Consistent Maintenance of Front Yard: The HOA established that its contractor, Mowtown Landscape, had continuously maintained the Petitioner’s front yard since their contract began in January 2020.

Denied Access to Backyard: The central defense was that the HOA’s contractor was repeatedly and deliberately denied access to the backyard. This was supported by substantial evidence:

Testimony of Rian Baas (Mowtown Landscape): Mr. Baas testified that his crews were at the community every Wednesday and Thursday. He stated they knocked on the Petitioner’s door and left notes or business cards four or five times between January and March 2020.

Testimony of Diana Crites (Property Manager): Ms. Crites presented a text message from Mr. Baas dated March 24, 2020, which read:

Documentary Evidence: A photograph of the locked gate was submitted, along with a letter from Mr. Baas stating, “There is a lock on the gate going to the back yard and we were trying to see if they [sic] people inside the house wanted us to maintenance the back yard. No one ever answered or came to the door.”

Scope of HOA Services: Ms. Crites testified that the HOA provides uniform services (front yard maintenance, mowing and blowing of back yards, sprinkler system maintenance) and does not offer “concierge” services like maintaining potted plants or private pools. The community pool, she noted, is maintained by a different company entirely (Crystal Clear Pool Maintenance).

IV. Judicial Findings and Legal Rulings

Administrative Law Judge Sondra J. Vanella found in favor of the Respondent in both the initial decision and the rehearing, ultimately dismissing the petition.

Initial Decision (August 17, 2020)

The initial petition was denied because the Petitioner failed to meet the burden of proof. The judge’s reasoning was:

1. Denial of Access: The Petitioner’s own admission, coupled with “credible, probative, and substantial evidence,” established that he had refused to allow the HOA access to his backyard since January 2020.

2. HOA Attempts: The evidence demonstrated that the HOA had attempted to access the yard on multiple occasions and was “specifically instructed in March 2020, that Respondent was not permitted to access Petitioner’s back yard.”

3. Scope of CC&Rs: 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.”

Rehearing Decision (February 12, 2021)

After the Commissioner of the Department of Real Estate granted a rehearing, Judge Vanella again dismissed the petition, providing a more detailed legal analysis of the term “landscaping.”

1. Burden of Proof: The judge reiterated that the Petitioner bore the burden to establish that the HOA was legally obligated to maintain his pool, but “failed to establish by a preponderance of the evidence that Respondent must do so.”

2. Definition of “Landscaping”: The judge found that the definitions of “landscaping” from various sources, including dictionaries, “cannot reasonably be read to include a swimming pool and the associated mechanical equipment.”

3. State Licensing as Key Differentiator: The most definitive part of the ruling relied on the Arizona Registrar of Contractors’ licensing classifications, which treat landscaping and pool maintenance as two separate and distinct services.

License Classification

Description & Relevance

R-21 Hardscaping and Irrigation Systems (Formerly Landscaping and Irrigation Systems)

Allows for installation and repair of non-loadbearing concrete, patios, decorative walls, irrigation systems, and water features not attached to swimming pools. The classification specifically precludes the licensee from contracting for work on “swimming pools, pool deck coatings.”

R-6 Swimming Pool Service and Repair

A separate license required “to service and perform minor repair of residential pools and accessories.”

The judge concluded: “The Registrar’s licensing scheme supports a conclusion that landscaping maintenance and pool maintenance are two separate and distinct services… the CC&Rs cannot reasonably be interpreted to include pool maintenance when it required Respondent to maintain landscaping.”

Judicial Recommendation

While ruling against the Petitioner, the judge offered a forward-looking, non-binding recommendation:

“…given that Petitioner is required to keep his gate secured due to having a pool, 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-RHG


Study Guide: Case No. 20F-H2020059-REL

Quiz: Short-Answer Questions

Instructions: Please answer the following questions in 2-3 complete sentences, using only information provided in the case documents.

1. Identify the Petitioner and Respondent in this case and describe the core issue of their dispute.

2. What specific provision of the governing documents did the Petitioner, Michael J. Stoltenberg, claim the Respondent violated?

3. According to the Petitioner’s testimony, what unique features did his property’s landscaping include, and what services did he believe the HOA was responsible for?

4. What was the primary reason the Respondent’s landscaping contractor, Mowtown Landscape, was unable to perform maintenance in the Petitioner’s backyard?

5. What was the testimony of Diana Crites, the property manager, regarding the scope of standard landscaping services provided by the HOA?

6. On what grounds did the Administrative Law Judge deny the Petitioner’s initial petition in the decision dated August 17, 2020?

7. For what primary reasons did the Commissioner of the Department of Real Estate grant the Petitioner a rehearing?

8. In the rehearing, what external sources did the Administrative Law Judge consult to determine the definition of “landscaping”?

9. What is the legal standard of proof required in this case, and who bears the responsibility for meeting it?

10. What was the final order issued after the rehearing on February 12, 2021, and what reasonable suggestion did the judge offer for future interactions?

——————————————————————————–

Answer Key

1. The Petitioner was homeowner Michael J. Stoltenberg. The Respondent was the Rancho Del Oro Homeowners Association (HOA). The core dispute concerned the HOA’s alleged failure to maintain the landscaping on the Petitioner’s property as required by the community’s CC&Rs, specifically whether this obligation included maintaining the Petitioner’s private pool.

2. The Petitioner claimed the Respondent violated Section 5.1 of the Covenants, Conditions, and Restrictions (CC&Rs). This section outlines the Association’s duties, including the maintenance of landscaping on individual lots outside of structures. The Petitioner also initially alleged a violation of Arizona Revised Statutes (A.R.S.) § 10-3842.

3. The Petitioner testified that his landscaping was unique, including xeriscape with geometric patterns, “water features” (a pool), and walking paths that needed staining. He contended that the HOA should be responsible for maintaining these features, including replenishing the rock in his front yard when it wore thin.

4. The landscaping contractor was unable to perform maintenance because the gate to the backyard was always locked. The Petitioner acknowledged he kept it locked for liability reasons due to the pool, and evidence showed that in March 2020, a woman at the residence explicitly told the landscapers she did not want anyone in the backyard.

5. Diana Crites testified that the HOA provides uniform services, not “concierge” services. This includes front yard maintenance and mowing and blowing of backyards, but not maintaining potted plants, driveways, property-dividing walls, or individual homeowners’ pools.

6. The judge denied the petition because the evidence, including the Petitioner’s own admission, established that he had refused to allow the Respondent access to his backyard since January 2020. The decision noted the Respondent had made multiple attempts to access the yard and had consistently maintained the front yard.

7. The rehearing was granted for reasons outlined in the Petitioner’s rehearing request. These included claims of irregularity in the proceedings, newly discovered evidence, errors in the admission of evidence, and that the original decision was not supported by evidence or was contrary to law. The Petitioner also cited ADA and privacy issues.

8. The Administrative Law Judge consulted various online dictionary definitions (Oxford English Dictionary, Dictionary.com, Merriam-Webster, Law Insider). She also analyzed the license classifications from the Arizona Registrar of Contractors, specifically the R-21 Hardscaping and Irrigation Systems license and the R-6 Swimming Pool Service and Repair license.

9. The legal standard is “preponderance of the evidence,” which means the proof must convince the trier of fact that a contention is more probably true than not. The Petitioner bears the burden of proof to establish that the Respondent violated the governing documents.

10. The final order dismissed the Petitioner’s petition again, finding he failed to prove the HOA was obligated to maintain his pool. However, the judge suggested that it would be reasonable for the Respondent to communicate the days and times of its landscaping services going forward so the Petitioner could provide access while maintaining safety precautions.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed to test a deeper, more comprehensive understanding of the case. Formulate a detailed essay response for each prompt.

1. Analyze the concept of “burden of proof” as it applies to this case. Explain who held the burden, what they were required to prove, and why the Administrative Law Judge ultimately found that they failed to meet this burden in both the initial hearing and the rehearing.

2. Discuss the role of access in the dispute between Michael J. Stoltenberg and the Rancho Del Oro HOA. How did the issue of the locked gate impact the initial ruling, and how did the Petitioner attempt to reframe this issue in the rehearing?

3. The interpretation of the word “landscaping” was central to the rehearing. Detail the Petitioner’s interpretation versus the conclusion reached by the Administrative Law Judge. What evidence and legal reasoning did the Judge use to support her conclusion that pool maintenance is not included in landscaping?

4. Trace the procedural history of this case, from the initial petition filing on April 21, 2020, to the final order after the rehearing. Identify the key events, the specific reasons cited for the rehearing, and the legal basis for the final dismissal.

5. Based on the testimony of Diana Crites and Rian Baas, describe the standard landscaping services provided by the Rancho Del Oro HOA and its contractor. How does this standard practice contrast with the specific and unique services the Petitioner demanded for his property?

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions and orders. In this case, Sondra J. Vanella served as the ALJ.

A.R.S.

Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona.

Burden of Proof

The obligation on a party in a legal dispute to provide sufficient evidence to prove their claim. In this case, the Petitioner bore the burden of proof.

Covenants, Conditions, and Restrictions. These are the governing legal documents that set up the rules for a planned community or homeowners’ association.

Department

Refers to the Arizona Department of Real Estate (ADRE), the state agency with jurisdiction over HOA dispute resolution petitions.

Homeowners’ Association. An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents. The Respondent was the Rancho Del Oro HOA.

Petitioner

The party who files a petition initiating a legal action. In this case, homeowner Michael J. Stoltenberg.

Petition

A formal written request filed with a court or administrative body to initiate a legal proceeding. Mr. Stoltenberg filed a petition alleging the HOA violated its CC&Rs.

Preponderance of the Evidence

The standard of proof in most civil and administrative cases. It requires the party with the burden of proof to convince the fact-finder that their claim is more likely to be true than not true.

Registrar of Contractors

The Arizona state agency responsible for licensing and regulating contractors. The ALJ referenced its license classifications for landscaping (R-21) and swimming pools (R-6) to help define the scope of services.

Respondent

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






Blog Post – 20F-H2020059-REL-RHG


Briefing on Stoltenberg v. Rancho Del Oro Homeowners Association

Executive Summary

This document synthesizes the findings and rulings from two administrative hearings concerning a dispute between homeowner Michael J. Stoltenberg (Petitioner) and the Rancho Del Oro Homeowners Association (Respondent). The Petitioner alleged the HOA violated its governing documents by failing to maintain landscaping at his property. The case was ultimately dismissed after an initial hearing and a subsequent rehearing.

The core of the dispute centered on two key issues: the scope of “landscaping” services required by the HOA’s Covenants, Conditions, and Restrictions (CC&Rs), and the Petitioner’s denial of access to his backyard. The Petitioner argued that the undefined term “landscaping” in the CC&Rs should be interpreted broadly to include maintenance of his private swimming pool, which he referred to as a “water feature.” Concurrently, he acknowledged keeping his backyard gate locked for liability reasons related to the pool, preventing the HOA’s contractor from performing any work.

The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to meet his burden of proof. The judge concluded that the HOA had made repeated, documented attempts to perform its duties, but was actively prevented from doing so by the Petitioner. Critically, the judge ruled that a reasonable interpretation of “landscaping,” supported by dictionary definitions and the Arizona Registrar of Contractors’ distinct licensing classifications for landscaping and swimming pool services, does not include the maintenance of a private pool and its associated mechanical equipment.

I. Case Overview

Case Detail

Information

Case Number

20F-H2020059-REL and 20F-H2020059-REL-RHG (Rehearing)

Petitioner

Michael J. Stoltenberg (Homeowner at 11777 E. Calle Gaudi, Yuma, AZ)

Respondent

Rancho Del Oro Homeowners Association (HOA)

Office of Administrative Hearings, Arizona

Presiding Judge

Administrative Law Judge Sondra J. Vanella

Hearing Dates

August 3, 2020 (Initial Hearing) and February 2, 2021 (Rehearing)

Final Disposition

Petition Dismissed (February 12, 2021)

II. Petitioner’s Allegations and Arguments

The Petitioner filed a petition with the Arizona Department of Real Estate on or about April 21, 2020, alleging the HOA acted in “bad faith” and failed to perform its duties in 2020. The core of his case was built on the following claims:

Violation of CC&Rs: The Petitioner alleged a violation of § 5.1 of the HOA’s CC&Rs, which mandates that the “Association shall maintain… landscaping on individual Lots outside of structures.” He also alleged a violation of Arizona Revised Statutes (A.R.S.) § 10-3842, although this was not addressed at the hearing.

Broad Interpretation of “Landscaping”: The Petitioner contended that since the CC&Rs do not define “landscaping,” the term should encompass all features on his lot. He specifically asserted that the HOA was responsible for maintaining:

◦ His swimming pool (referred to as a “water feature”), including the pump, filter, and chemicals.

◦ His unique xeriscape with geometric patterns.

◦ Walking paths that required staining.

◦ Replenishing decorative rock when it wears thin.

◦ The patio and all hardscape.

Denial of Access: The Petitioner acknowledged that the gate to his backyard was “always locked for liability reasons” due to the pool. At the rehearing, he argued that the HOA failed to communicate the landscaping schedule, which would have afforded him an opportunity to unlock the gate.

Rehearing Claims: In his request for a rehearing, the Petitioner cited several grounds, including an abuse of discretion by the judge, errors in evidence, and issues related to the Americans with Disabilities Act (ADA), claiming hearing loss put him at a “severe disadvantage.” At the rehearing itself, he also asserted that the Respondent was “falsely representing themselves as an HOA” and did not have an elected Board.

III. Respondent’s Defense and Evidence

The HOA, represented by Nicole Payne, Esq., argued that it had fulfilled its obligations and that any failure to maintain the Petitioner’s backyard was due to his own actions.

Consistent Maintenance of Front Yard: The HOA established that its contractor, Mowtown Landscape, had continuously maintained the Petitioner’s front yard since their contract began in January 2020.

Denied Access to Backyard: The central defense was that the HOA’s contractor was repeatedly and deliberately denied access to the backyard. This was supported by substantial evidence:

Testimony of Rian Baas (Mowtown Landscape): Mr. Baas testified that his crews were at the community every Wednesday and Thursday. He stated they knocked on the Petitioner’s door and left notes or business cards four or five times between January and March 2020.

Testimony of Diana Crites (Property Manager): Ms. Crites presented a text message from Mr. Baas dated March 24, 2020, which read:

Documentary Evidence: A photograph of the locked gate was submitted, along with a letter from Mr. Baas stating, “There is a lock on the gate going to the back yard and we were trying to see if they [sic] people inside the house wanted us to maintenance the back yard. No one ever answered or came to the door.”

Scope of HOA Services: Ms. Crites testified that the HOA provides uniform services (front yard maintenance, mowing and blowing of back yards, sprinkler system maintenance) and does not offer “concierge” services like maintaining potted plants or private pools. The community pool, she noted, is maintained by a different company entirely (Crystal Clear Pool Maintenance).

IV. Judicial Findings and Legal Rulings

Administrative Law Judge Sondra J. Vanella found in favor of the Respondent in both the initial decision and the rehearing, ultimately dismissing the petition.

Initial Decision (August 17, 2020)

The initial petition was denied because the Petitioner failed to meet the burden of proof. The judge’s reasoning was:

1. Denial of Access: The Petitioner’s own admission, coupled with “credible, probative, and substantial evidence,” established that he had refused to allow the HOA access to his backyard since January 2020.

2. HOA Attempts: The evidence demonstrated that the HOA had attempted to access the yard on multiple occasions and was “specifically instructed in March 2020, that Respondent was not permitted to access Petitioner’s back yard.”

3. Scope of CC&Rs: 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.”

Rehearing Decision (February 12, 2021)

After the Commissioner of the Department of Real Estate granted a rehearing, Judge Vanella again dismissed the petition, providing a more detailed legal analysis of the term “landscaping.”

1. Burden of Proof: The judge reiterated that the Petitioner bore the burden to establish that the HOA was legally obligated to maintain his pool, but “failed to establish by a preponderance of the evidence that Respondent must do so.”

2. Definition of “Landscaping”: The judge found that the definitions of “landscaping” from various sources, including dictionaries, “cannot reasonably be read to include a swimming pool and the associated mechanical equipment.”

3. State Licensing as Key Differentiator: The most definitive part of the ruling relied on the Arizona Registrar of Contractors’ licensing classifications, which treat landscaping and pool maintenance as two separate and distinct services.

License Classification

Description & Relevance

R-21 Hardscaping and Irrigation Systems (Formerly Landscaping and Irrigation Systems)

Allows for installation and repair of non-loadbearing concrete, patios, decorative walls, irrigation systems, and water features not attached to swimming pools. The classification specifically precludes the licensee from contracting for work on “swimming pools, pool deck coatings.”

R-6 Swimming Pool Service and Repair

A separate license required “to service and perform minor repair of residential pools and accessories.”

The judge concluded: “The Registrar’s licensing scheme supports a conclusion that landscaping maintenance and pool maintenance are two separate and distinct services… the CC&Rs cannot reasonably be interpreted to include pool maintenance when it required Respondent to maintain landscaping.”

Judicial Recommendation

While ruling against the Petitioner, the judge offered a forward-looking, non-binding recommendation:

“…given that Petitioner is required to keep his gate secured due to having a pool, 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.”


Case Participants

Petitioner Side

  • Michael J. Stoltenberg (petitioner)

Respondent Side

  • Nicole Payne (HOA attorney)
  • Diana Crites (property manager/witness)
    Crites and Associates
    Owner of Respondent's property management company; licensed broker
  • Rian Baas (witness/contractor owner)
    Mowtown Landscape
    Owner of landscaping company contracted by Respondent
  • Lydia A. Peirce Linsmeier (HOA attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
  • Luis (landscaping staff)
    Staff member mentioned in text regarding access attempts
  • Jill (staff/employee)
    Staff member mentioned printing paper for Luis regarding access attempts

Neutral Parties

  • Sondra J. Vanella (ALJ)
    OAH
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Erik R. Pierce v. Sierra Morado Community Association

Case Summary

Case ID 20F-H2020053-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-02-10
Administrative Law Judge Adam D. Stone
Outcome none
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Erik R. Pierce Counsel James C. Frisch
Respondent Sierra Morado Community Association Counsel Nicholas C.S. Nogami and Heather M. Hampstead

Alleged Violations

Article 11, Section 11.1

Outcome Summary

The Administrative Law Judge denied the petition, concluding that the Respondent HOA did not violate CC&R Section 11.1 because that section grants the Board discretion, rather than a mandatory obligation, in the timing of enforcement actions.

Why this result: The Petitioner failed to meet the burden of proof to establish that the Respondent violated CC&R Section 11.1, as the ALJ found the Board's decision to temporarily delay enforcement pending litigation and settlement discussions fell within the discretion granted by the CC&R.

Key Issues & Findings

Failure of HOA to Enforce Architectural Approval Conditions (Hot Tub Screening)

Petitioner alleged that the HOA failed to enforce the mandatory installation of a pergola and screening around a neighbor's hot tub, a condition imposed by the Architectural Review Committee when retroactively approving the installation.

Orders: Petitioner's petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 32-2199(B)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • CC&R Article 11, Section 11.1
  • CC&R Article 4, Section 4.27

Analytics Highlights

Topics: HOA Enforcement, CC&R Dispute, Architectural Control, Discretionary Enforcement
Additional Citations:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.07(G)(2)
  • A.R.S. § 41-1092.09
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • CC&R Article 4, Section 4.27
  • CC&R Article 11, Section 11.1
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)

Video Overview

Audio Overview

Decision Documents

20F-H2020053-REL Decision – 850237.pdf

Uploaded 2026-01-23T17:32:29 (43.0 KB)

20F-H2020053-REL Decision – 850239.pdf

Uploaded 2026-01-23T17:32:31 (7.1 KB)

20F-H2020053-REL Decision – 853778.pdf

Uploaded 2026-01-23T17:32:32 (119.9 KB)





Briefing Doc – 20F-H2020053-REL


Administrative Hearing Briefing: Pierce v. Sierra Morado Community Association

Executive Summary

This briefing synthesizes the key findings and judicial decision in the administrative case of Erik R. Pierce versus the Sierra Morado Community Association (SMCA), Case No. 20F-H2020053-REL. The petition, filed by homeowner Erik R. Pierce, was ultimately denied by the Administrative Law Judge on February 10, 2021.

The core of the dispute was Pierce’s allegation that the SMCA failed to enforce its Covenants, Conditions, and Restrictions (CC&Rs) against his neighbors, the Kinstles, who installed a hot tub visible from Pierce’s property, creating a privacy violation. While the SMCA Board retroactively approved the hot tub, it did so with the explicit condition that a pergola and screening be installed to mitigate the visibility issue. The Kinstles subsequently failed to install the required screening.

The judge concluded that the SMCA’s conditional approval resolved the initial violation claim under CC&R Section 4.27. The central issue then became whether the SMCA’s subsequent failure to compel the installation of the screening constituted a violation of its enforcement duty under CC&R Section 11.1. The judge ruled that it did not, finding that the CC&Rs grant the Association a discretionary right to enforce its rules, not an absolute obligation. The judge found persuasive the SMCA’s testimony that it delayed enforcement actions due to the ongoing litigation and in an attempt to foster a settlement between the neighbors. This exercise of discretion was deemed permissible under the Association’s governing documents.

1. Case Overview

Parties and Legal Representation

Entity

Legal Counsel

Petitioner

Erik R. Pierce

James C. Frisch, Esq. & Michael Resare, Esq. (King & Frisch, P.C.)

Respondent

Sierra Morado Community Association (SMCA)

Heather M. Hampstead, Esq. & Nicholas C.S. Nogami, Esq. (Carpenter, Hazlewood, Delgado & Bolen, LLP)

Key Case Details

Case Number: 20F-H2020053-REL

Presiding Judge: Adam D. Stone, Administrative Law Judge

Hearing Date: January 25, 2021 (conducted via Google Meet)

Decision Date: February 10, 2021

Jurisdiction: The Arizona Department of Real Estate (ADRE) is statutorily authorized to hear petitions from homeowners’ association members. This case was referred by the ADRE to the Office of Administrative Hearings for an evidentiary hearing.

2. Core Dispute and Allegations

Petitioner’s Complaint

On March 23, 2020, Erik R. Pierce filed a complaint with the ADRE alleging that the SMCA was in violation of its own CC&Rs, specifically Sections 4.27 (Swimming Pools and Spas) and 11.1 (Enforcement).

The dispute originated with the installation of a hot tub by Pierce’s neighbors, the Kinstles. Pierce testified that the hot tub and its occupants were visible from inside his house, and that occupants of the hot tub could look directly into his home, violating his right to privacy.

Timeline of Key Events

September 4, 2019: Pierce submits his initial complaint to the SMCA, noting the hot tub’s visibility and asserting that the Kinstles had failed to obtain prior approval from the Architectural Review Committee (ARC).

Post-September 2019: The SMCA informs the Kinstles that they installed the hot tub without approval and directs them to submit plans for the proper approval process.

February 10, 2020: After several rejections, the SMCA Board approves the Kinstles’ hot tub installation on the condition that a pergola and screening are installed.

March 3, 2020: Pierce receives a letter from the property management company, AAM, LLC, stating that the installation was approved with the screening requirement and that the complaint was closed.

January 25, 2021: At the time of the hearing, the Kinstles had still not installed the required pergola and screening.

3. Analysis of Key Testimonies

The decision was informed by testimony from four witnesses presented by the Petitioner.

Erik R. Pierce (Petitioner): Outlined the timeline of the dispute, the visibility of the neighbors’ hot tub, the resulting privacy violation, and the SMCA Board’s failure to enforce its own conditional approval requiring a pergola and screening.

Bill Oliver (Former SMCA President, Fall 2019 – April 2020): Confirmed that the Board approved the hot tub retroactively with the stipulation for a pergola and screening. He stated the Board had a “rigorous process of enforcement” but could not recall if a specific violation letter was sent to the Kinstles after the conditional approval was granted.

Jodie Cervantes (Former Community Manager, 2019 – June 2020): Testified that she believed the CC&Rs were enforced and the matter was closed. She suggested the Kinstles had a six-month period to comply with the screening requirement, which she believed was in the Design Guidelines, but could not point to the specific language.

Martin Douglas (Current SMCA President, from April 2020): Stated he had been to the Pierce residence for another matter and the hot tub was not visible to him. He attributed the lack of enforcement action to the “ongoing litigation and multiple settlement offers which were being exchanged.” He testified that upon resolution of the case, the Board “will follow through with enforcement actions should the Kinstle’s fail to comply.”

4. Judicial Reasoning and Decision

The Administrative Law Judge’s decision centered on the interpretation of the SMCA’s CC&Rs and the discretionary power of its Board.

Governing CC&R Provisions

The ruling rested on the specific language of two sections of the SMCA CC&Rs:

Section 4.27 (Swimming Pools and Spas): This section permits the installation of a hot tub only if it is “properly screened… if neither it nor its occupants are Visible from Neighboring Property, and with the prior written approval of the Architectural Review Committee.”

Section 11.1 (Enforcement): This section states that “The Association or any Owner shall have the right to enforce the Project Documents… The failure of the Association or an Owner to take enforcement action with respect to a violation of the Project Documents shall not constitute or be deemed a waiver of the right of the Association or any Owner to enforce the Project Documents in the future.”

Administrative Law Judge’s Conclusions

1. Resolution of the Section 4.27 Claim: The judge determined that the initial issue regarding the unapproved hot tub “was essentially resolved by the Board instructing the Kinstle’s erect a pergola and install screening.” By making its approval conditional on a privacy solution, the Board addressed the core requirement of the section.

2. The “Heart of the Matter” – Section 11.1 Enforcement: The judge identified the central question as whether the SMCA violated Section 11.1 by failing to enforce the screening requirement against the Kinstles.

3. Discretionary vs. Mandatory Enforcement: The judge concluded that the language of Section 11.1 grants the Board a “right to enforce, not an absolute obligation.”

4. Rationale for Delayed Enforcement: The judge found the testimony of the current SMCA President, Martin Douglas, to be “more persuasive.” Douglas’s explanation—that the Board delayed enforcement to “foster an agreement with the neighbors” amid ongoing litigation—was accepted as a valid exercise of the Board’s discretion.

5. Final Ruling: The judge stated, “Section 11.1 expressly granted the Board this discretion, and it should not be disturbed.” Consequently, the judge ruled that the Petitioner failed to prove by a preponderance of the evidence that the Respondent had violated CC&R Section 11.1.

Final Order

IT IS ORDERED that Petitioners’ petition is denied.

The order was issued on February 10, 2021, and is binding unless a rehearing is granted.






Study Guide – 20F-H2020053-REL


Study Guide: Pierce v. Sierra Morado Community Association (Case No. 20F-H2020053-REL)

This study guide provides a review of the administrative hearing concerning the dispute between Erik R. Pierce and the Sierra Morado Community Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a comprehensive glossary of terms and entities involved in the case.

Short-Answer Quiz

Answer each of the following questions in two to three complete sentences, based on the provided source documents.

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

2. What was the initial reason for Mr. Pierce’s complaint against his neighbors, the Kinstles?

3. Which two sections of the Sierra Morado Community Association (SMCA) CC&Rs did Mr. Pierce allege were violated?

4. What action did the SMCA Board take after being informed that the Kinstles had installed a hot tub without prior approval?

5. What specific conditions did the SMCA Board require for the retroactive approval of the Kinstles’ hot tub installation?

6. According to former Board President Bill Oliver’s testimony, what was the Board’s common practice regarding architectural requests made after an installation?

7. What reason did Community Manager Jodie Cervantes give for her belief that no further enforcement action could be taken against the Kinstles?

8. According to current SMCA Board President Martin Douglas, why had the Board delayed enforcement actions against the Kinstles?

9. What was the Administrative Law Judge’s final decision regarding the alleged violation of CC&R Section 11.1?

10. How did the judge interpret the Board’s enforcement power as described in Section 11.1 of the CC&Rs?

——————————————————————————–

Answer Key

1. The primary parties were Erik R. Pierce, who was the Petitioner filing the complaint, and the Sierra Morado Community Association (SMCA), which was the Respondent. Mr. Pierce is a homeowner and member of the SMCA.

2. Mr. Pierce’s complaint originated because his neighbors, the Kinstles, installed a hot tub that was visible from his backyard. He testified that occupants in the hot tub were visible from inside his house, violating his privacy.

3. The Petitioner, Mr. Pierce, alleged that the Respondent, SMCA, was in violation of sections 4.27 and 11.1 of the SMCA CC&Rs. Section 4.27 pertains to the installation of spas, and Section 11.1 addresses the enforcement of project documents.

4. After Mr. Pierce filed his complaint, the SMCA informed the Kinstles that they had installed the hot tub without approval. The Board then directed the Kinstles to submit their plans and go through the proper architectural approval process.

5. The Kinstles’ hot tub was approved retroactively on February 10, 2020, on the condition that they install a pergola and screening. This was intended to address the visibility of the hot tub from Mr. Pierce’s property.

6. Bill Oliver, the SMCA President from fall 2019 to April 2020, testified that the Board would approve architectural requests retroactively. He confirmed that this is what occurred in the case of the Kinstles’ hot tub.

7. Jodie Cervantes, the Community Manager, testified that she believed the matter was closed because the Kinstles had six months to comply with the pergola and screening requirements. She believed this six-month deadline was outlined in the Design Guidelines, though she could not locate the specific language.

8. Martin Douglas, who became Board President in April 2020, testified that the Board delayed enforcement actions due to the ongoing litigation. He stated that multiple settlement offers were being exchanged in an effort to foster an agreement between the neighbors.

9. The Administrative Law Judge ordered that the Petitioner’s petition be denied. The judge concluded that Mr. Pierce did not establish by a preponderance of the evidence that the SMCA had violated CC&R Section 11.1.

10. The judge determined that Section 11.1 grants the Board a right to enforce the rules, not an absolute obligation to do so. This interpretation means the Board has the discretion to delay enforcement, which it did in this case to facilitate a potential settlement.

——————————————————————————–

Essay Questions

The following questions are designed for longer, essay-style responses. Use evidence and testimony from the case documents to construct a thorough analysis. No answers are provided.

1. Explain the legal standard of “preponderance of the evidence” as defined in the Administrative Law Judge’s decision. Analyze why the Petitioner, Erik R. Pierce, failed to meet this burden of proof concerning the violation of CC&R Section 11.1.

2. Trace the timeline of events from Mr. Pierce’s initial complaint on September 4, 2019, to the final decision on February 10, 2021. Discuss the key actions, delays, and decisions made by the SMCA Board during this period.

3. Compare and contrast the testimonies of Bill Oliver, Jodie Cervantes, and Martin Douglas. How do their different roles and timeframes with the SMCA shape their perspectives on the association’s enforcement process and the specific handling of the Kinstle case?

4. Analyze the Administrative Law Judge’s interpretation of CC&R Section 11.1. Discuss the distinction made between a “right to enforce” and an “absolute obligation,” and explain how this interpretation was central to the final ruling.

5. Based on the judge’s findings and the testimony of Martin Douglas, what are the likely next steps for the SMCA regarding the Kinstles’ non-compliance with the pergola and screening requirement? Evaluate the potential for future conflict or resolution between the parties involved.

——————————————————————————–

Glossary of Key Terms

Term / Entity

Definition

AAM, LLC

The property management company that employed Community Manager Jodie Cervantes and managed the Sierra Morado Community Association during the period of the dispute.

Administrative Law Judge (ALJ)

The official who presides over administrative hearings. In this case, the ALJ was Adam D. Stone of the Office of Administrative Hearings.

Architectural Committee (ARC)

The committee within the SMCA responsible for approving construction, installations, and alterations to properties, as referenced in CC&R Section 4.27.

Arizona Department of Real Estate (ADRE)

The state agency authorized by statute to receive and decide Petitions for Hearing from members of homeowners’ associations. Mr. Pierce filed his initial complaint with this department.

Burden of Proof

The obligation on a party in a legal case to prove its allegations. In this case, the Petitioner had the burden to establish his claim by a “preponderance of the evidence.”

Covenants, Conditions, and Restrictions. These are the governing documents or rules of a planned community. The dispute centered on alleged violations of Sections 4.27 (Swimming Pools and Spas) and 11.1 (Enforcement).

Hearing

The formal proceeding held on January 25, 2021, where the parties presented exhibits and witness testimony to the Administrative Law Judge.

Office of Administrative Hearings

An independent state agency that conducts evidentiary hearings for other state agencies, such as the Department of Real Estate.

Petitioner

The party who files a petition or complaint to initiate a legal proceeding. In this case, the Petitioner was Erik R. Pierce.

Preponderance of the Evidence

The evidentiary standard required for the Petitioner to win the case. It is defined as proof that convinces the trier of fact that a contention is “more probably true than not.”

Respondent

The party against whom a petition or complaint is filed. In this case, the Respondent was the Sierra Morado Community Association (SMCA).

Retroactive Approval

The act of approving an architectural installation (such as a hot tub) after it has already been completed, which the SMCA Board did in this case.

Sierra Morado Community Association (SMCA)

The homeowners’ association in Tucson, Arizona, of which Erik R. Pierce and the Kinstles are members.

Stipulation

An agreement between the parties in a legal proceeding. In this case, the parties stipulated to enter all submitted exhibits into the record.






Blog Post – 20F-H2020053-REL


Your HOA Can Ignore Its Own Rules? A Surprising Legal Case Every Homeowner Needs to Understand

Introduction: The Homeowner’s Dilemma

Most homeowners in a planned community operate under a simple assumption: if a neighbor violates a clear rule, you can file a complaint, and the Homeowners Association (HOA) is required to take action. It’s the fundamental promise of an HOA—consistent enforcement to protect property values and quality of life.

But what happens when the HOA agrees a violation has occurred, demands a fix, and then… does nothing to enforce it?

A real-world legal case, Erik R. Pierce versus the Sierra Morado Community Association, provides a surprising and cautionary answer. The final court decision reveals a critical loophole that may exist in your own HOA agreement. This article will break down the three most counter-intuitive takeaways from that case that every homeowner should understand.

Takeaway 1: “A Right to Enforce” Isn’t an “Obligation to Enforce”

The core of the dispute was straightforward. Homeowner Erik Pierce filed a complaint because his neighbors, the Kinstles, installed a hot tub that was visible from his property, a violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs)—the legally binding rules that govern the community. The HOA’s Architectural Committee retroactively approved the hot tub, but only on the condition that the neighbors install a pergola and screening to shield it from view.

The neighbors never installed the required screening, yet the HOA took no further enforcement action. This inaction led Mr. Pierce to sue the HOA.

The judge’s decision hinged on a crucial interpretation of the HOA’s governing documents. The judge ruled in favor of the HOA because the documents gave the Board the right to enforce the rules, not an absolute obligation to do so. This distinction granted the HOA discretion to choose its strategy. The judge found the board’s reasoning for the delay persuasive: it was deliberately choosing negotiation over immediate punitive action to resolve the conflict. The board’s discretion wasn’t just a right to do nothing; it was a right to choose a different path to compliance.

The key phrase here is “shall have the right to enforce.” Had the documents stated the board “shall enforce,” the outcome would likely have been entirely different. This single phrase transforms enforcement from a mandate into a strategic option for the board.

The Administrative Law Judge’s decision highlights this critical point:

“…Section 11.1 only gives the Board a right to enforce, not an absolute obligation. While Petitioner is understandably upset that there has yet to be any follow through on enforcement of the screening requirements, this tribunal finds the testimony of Mr. Douglas more persuasive, namely that the Board has delayed in enforcing because it was trying to foster an agreement with the neighbors. Section 11.1 expressly granted the Board this discretion, and it should not be disturbed.”

This finding is shocking for most homeowners, who reasonably assume that the rules laid out in their CC&Rs are mandates for the board, not a menu of discretionary options.

Takeaway 2: Suing Your HOA Can Ironically Pause Enforcement

The board’s discretionary power was put on full display when Mr. Pierce filed his lawsuit, creating a legal Catch-22. The current SMCA Board President, Martin Douglas, testified that the board deliberately paused formal enforcement actions against the neighbors who had violated the architectural requirement.

The judge ultimately found that the board’s rationale for this pause was a valid exercise of its discretion. The decision to delay was framed not as inaction, but as a strategic choice “to foster an agreement with the neighbors” amidst the complexities of litigation.

This reveals a deep irony: by filing a petition to force the HOA’s hand, the homeowner inadvertently provided the context for the HOA to justify a delay. The judge accepted that the board’s attempt to find a negotiated solution instead of escalating fines and penalties during an active lawsuit was a reasonable use of its discretionary authority. This case demonstrates how legal action, intended to accelerate a resolution, can sometimes be used by an HOA board to justify a different, slower approach.

Takeaway 3: A Clear Rule Violation Doesn’t Guarantee a Win in Court

One of the most surprising aspects of this case is that the facts of the violation were not in dispute. The judge explicitly acknowledged that the neighbors were in violation of the Architectural Review Committee’s requirement. The official decision states:

“Based upon the evidence provided, the Kinstle’s are in violation of the requirement the ARC Committee imposed on them.”

Despite this clear violation by the neighbor, the homeowner, Mr. Pierce, still lost his case against the HOA.

The case was lost on a critical legal distinction: the lawsuit was not about the neighbor’s violation, but about the HOA’s alleged failure to act. Since the judge determined the HOA had the discretionary right—not the mandatory obligation—to enforce the rule, its choice to pursue negotiation rather than immediate punitive action was not considered a violation of its duties.

The lesson here is profound: proving a neighbor is breaking the rules is only the first step. To win a case against your HOA for non-enforcement, you must also prove that its response (or lack thereof) constitutes a breach of its specific duties as outlined in your community’s governing documents.

Conclusion: Know Your Documents, Temper Your Expectations

The case of Pierce v. Sierra Morado Community Association serves as a stark reminder that HOA governance is often more complex than it appears. The precise wording of your community’s CC&Rs is critically important, as a single phrase can be the difference between a mandatory duty and a discretionary power. This case illustrates that the gap between a rule existing on paper and the board’s power to enforce it can be vast.

As a homeowner, your first step should be to obtain a copy of your community’s most recent CC&Rs and search for the enforcement clause—does it say your board “shall” enforce the rules, or does it say they have the “right” to?

This case forces every homeowner to ask: If your governing documents give your board the ‘right’ to act, what leverage do you truly have to ensure they actually will?


Case Participants

Petitioner Side

  • Erik R. Pierce (petitioner)
  • James C. Frisch (petitioner attorney)
    King & Frisch, P.C.
  • Michael Resare (petitioner attorney)

Respondent Side

  • Nicholas C.S. Nogami (respondent attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
  • Heather M. Hampstead (respondent attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
  • Jodie Cervantes (property manager/witness)
    AAM, LLC
    Community Manager for Respondent SMCA
  • Bill Oliver (board member/witness)
    Former SMCA President (Fall 2019 to April 2020)
  • Martin Douglas (board member/witness)
    Current SMCA Board President (since April 2020)

Neutral Parties

  • Adam D. Stone (ALJ)
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • LDettorre (unknown)
    Arizona Department of Real Estate
    Transmission recipient
  • AHansen (unknown)
    Arizona Department of Real Estate
    Transmission recipient
  • djones (unknown)
    Arizona Department of Real Estate
    Transmission recipient
  • DGardner (unknown)
    Arizona Department of Real Estate
    Transmission recipient
  • ncano (unknown)
    Arizona Department of Real Estate
    Transmission recipient
  • c. serrano (clerk)
    Signed document transmission