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 2025-10-09T03:35:12 (43.0 KB)
20F-H2020053-REL Decision – 850239.pdf
Uploaded 2025-10-09T03:35:12 (7.1 KB)
20F-H2020053-REL Decision – 853778.pdf
Uploaded 2025-10-09T03:35:12 (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
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?
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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.
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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.
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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
The ALJ dismissed the petition, finding that the HOA did not violate the CC&Rs. The CC&Rs allowed the Association to increase the annual assessment by either the CPI or 5%, and the disputed 10% increase was below the maximum allowable assessment calculated over the years.
Why this result: Petitioner failed to meet the burden of proof due to an incorrect interpretation of the CC&Rs regarding maximum annual assessment calculations.
Key Issues & Findings
Improper Assessment Increase
Petitioner alleged the Association increased annual assessments in violation of Article VIII Section 8.1.5 of the CC&Rs.
Orders: IT IS ORDERED that Petitioner Thomas W. Sweeney's Petition be dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1803(A)
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)
Decision Documents
21F-H2120027-REL Decision – 852845.pdf
Uploaded 2026-02-28T18:23:29 (102.5 KB)
**Case Title:** No. 21F-H2120027-REL
**Parties:** Thomas W. Sweeney (Petitioner) v. Warner Ranch Landing Association (Respondent)
**Forum:** Arizona Office of Administrative Hearings
**Main Issue**
The central issue in this hearing was whether the Respondent homeowners association (HOA) increased its 2021 annual assessments in violation of Article VIII, Section 8.1.5 of the community's Covenants, Conditions, and Restrictions (CC&Rs).
**Key Facts and Arguments**
* **Petitioner’s Argument:** The Petitioner contested a 10% increase in the 2021 annual assessments, arguing that it violated Section 8.1.5 of the CC&Rs. He interpreted the governing documents to mean that a 5% maximum allowable annual increase applies only if the Consumer Price Index (CPI) no longer exists. The Petitioner did not submit supplementary evidence to support his claim, relying solely on his personal interpretation of the CC&Rs.
* **Respondent’s Argument:** Representatives for the HOA testified that Section 8.1.5 allows the maximum annual assessment to increase automatically each year by the *greater* of the CPI or 5%. Because the board elected not to raise dues to the absolute maximum in prior years, the cumulative permitted maximum assessment for 2021 would theoretically be over $4,200. Therefore, the 2021 assessment, even with the 10% year-over-year increase, remained more than $2,300 below the maximum amount allowed under the CC&Rs. Additionally, the Respondent noted that Arizona statute (A.R.S. § 33-1803(A)) permits an HOA to increase regular assessments up to 20% over the preceding year without a member vote.
**Legal Analysis**
The Administrative Law Judge evaluated the case based on the plain language of Section 8.1.5 of the CC&Rs. The judge found that the CC&Rs explicitly permit the HOA to increase the maximum annual assessment by the greater of the CPI percentage increase *or* 5%, directly contradicting the Petitioner's interpretation. By law, the Petitioner bore the burden of proving by a preponderance of the evidence that the HOA violated the community documents.
**Final Decision and Outcome**
The Administrative Law Judge concluded that the Petitioner failed to establish that the Respondent violated the CC&Rs. As a result, the Petition was officially dismissed.
Case Participants
Petitioner Side
Thomas W. Sweeney(petitioner) Appeared on his own behalf
Respondent Side
Austin Baillio(HOA attorney) Warner Ranch Landing Association Also listed as B. Austin Bailio in mailing section
Christopher Reynolds(property manager) Warner Ranch Landing Association Community Manager for Respondent; provided testimony
Michael Goldberg(board member) Warner Ranch Landing Association Vice-president of the Board; provided testimony
Neutral Parties
Sondra J. Vanella(ALJ) Office of Administrative Hearings
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.
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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.
——————————————————————————–
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
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.
——————————————————————————–
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?
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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
A.R.S. § 33-1817(A)(1); CC&Rs Part 10, Section 10.4
Outcome Summary
Petitioner was deemed the prevailing party after establishing that the Respondent HOA violated A.R.S. § 33-1817(A)(1) and the community documents by improperly recording Amended CC&Rs without proper owner consent. The Respondent was ordered to refund the $500.00 filing fee. However, the ALJ could not grant the requested relief (rescission of the Amended CC&Rs) due to a lack of statutory authority.
Key Issues & Findings
Violation regarding the validity of Amended CC&Rs due to lack of required owner approval.
The Petitioner alleged that the Amended CC&Rs recorded by the Board were invalid because they were not approved by two-thirds (2/3) of the lot owners as required by the CC&Rs and statute. The ALJ agreed, finding the Board acted improperly and violated the documents and statute.
Orders: Respondent was ordered to pay Petitioner the filing fee of $500.00. No civil penalty was assessed. The ALJ determined she lacked the statutory authority to order the rescission of the Amended CC&Rs requested by the Petitioner.
Briefing Document: Karolak vs. VVE – Casa Grande Homeowners Association
Executive Summary
This briefing analyzes the Administrative Law Judge (ALJ) Decision in the case of Douglas J. Karolak vs. VVE – Casa Grande Homeowners Association (No. 20F-H2020041-REL). The central issue was whether the HOA Board had the authority to unilaterally amend and record changes to the community’s Covenants, Conditions, and Restrictions (CC&Rs) without the required homeowner vote.
The petitioner, Douglas J. Karolak, successfully argued that the HOA violated its own governing documents and Arizona state law by filing “Amended CC&Rs” on October 5, 2018, without securing the approval of two-thirds of the lot owners. The HOA contended its actions were a valid exercise of its authority to create “Association Rules.”
ALJ Tammy L. Eigenheer ruled decisively in favor of the petitioner. The decision established a clear legal distinction between the Board’s power to adopt rules and the separate, more stringent process required to formally amend the CC&Rs. The judge found the Board acted improperly, declaring Karolak the prevailing party and ordering the HOA to reimburse his $500 filing fee. Notably, while the judge found the amended document was improperly recorded, she concluded she lacked the statutory authority to order its rescission, which was the remedy the petitioner had requested.
Case Overview
Case Name
Douglas J. Karolak vs. VVE – Casa Grande Homeowners Association
Case Number
20F-H2020041-REL
Arizona Office of Administrative Hearings
Administrative Law Judge
Tammy L. Eigenheer
Hearing Date
May 1, 2020
Decision Date
May 21, 2020
The Central Dispute
The core of the dispute revolved around the legitimacy of a document titled “Restated Declaration of Covenants, Conditions and Restrictions for Val Vista Estates” (Amended CC&Rs), which the HOA Board recorded with the Pinal County Recorder on October 5, 2018.
• Petitioner’s Position (Douglas J. Karolak): The Amended CC&Rs are invalid because they were not approved by “owners of at least two-thirds (2/3) of the Lots,” a requirement explicitly stated in Section 10.4 of the original CC&Rs and supported by Arizona statute A.R.S. § 33-1817(A)(1). Karolak argued that the Board’s action of recording an amendment is fundamentally different from its power to adopt internal “Association Rules.”
• Respondent’s Position (VVE – Casa Grande HOA): The Board argued that its actions were a valid exercise of the authority granted to it under the CC&Rs. It claimed that because the only changes were to Part 7 (Use Restrictions), they fell under the Board’s power to “adopt, amend, or repeal such rules and regulations as it deems reasonable and appropriate” (Section 3.4) and to “modify or waive the foregoing restrictions… by reasonable rules and regulations” (Section 7.43). The Respondent’s counsel did, however, concede that “perhaps the Amended CC&Rs should not have been recorded.”
Factual Background and Chronology
• The VVE – Casa Grande Homeowners Association is a 56-lot community in Casa Grande, Arizona, with 19 lots remaining vacant at the time of the hearing.
• April 30, 1999: The original “Restated Declaration of Covenants, Conditions and Restrictions for VVE” (CC&Rs) was recorded.
• 2014 and 2015: The HOA Board made unsuccessful attempts to amend the CC&Rs through membership votes.
• 2018: Following the failed votes, the Board determined it would make changes to the “rules section” of the CC&Rs under the authority it believed was granted by Section 3.4.
• October 5, 2018: The Board recorded the Amended CC&Rs with the Pinal County Recorder. The HOA acknowledged that these amendments had not been approved by the required two-thirds of lot owners.
Legal Analysis and Key Provisions
The decision rested on the interpretation of specific sections of the community’s CC&Rs and Arizona state law. The judge concluded that the document’s structure clearly separates the process of rulemaking from the process of formal amendment.
Provision
Source
Summary of Stipulation
Amendment Process
CC&Rs Section 10.4
Requires an instrument “executed by the Owners of at least two-thirds (2/3) of the Lots” and recorded to become effective.
Rulemaking Authority
CC&Rs Section 3.4
Empowers the Board to adopt, amend, or repeal “Association Rules” governing the use of the property. States rules have the “same force and effect as if they were set forth in” the CC&Rs.
Statutory Requirement
A.R.S. § 33-1817(A)(1)
Provides that a declaration may be amended by the association via an affirmative vote or written consent of the number of owners specified in the declaration.
The judge’s rationale emphasized that the distinct sections for rulemaking (3.4) and amendments (10.4) demonstrate that the original drafters did not intend for the Board to have the power to unilaterally amend the CC&Rs. The judge stated, “The fact that the two topics are covered as separate topics in the CC&Rs leads to the conclusion that the original drafters of the CC&Rs did not contemplate that the Board had the authority to, on its own, amend the CC&Rs.”
The Court’s Decision and Final Order
The Administrative Law Judge ruled that the petitioner, Douglas J. Karolak, had successfully proven by a preponderance of the evidence that the respondent HOA had acted improperly.
Key Findings:
• The HOA Board did not have the authority to amend the CC&Rs without the approval of two-thirds of the lot owners.
• The Board’s action of recording the Amended CC&Rs on October 5, 2018, was a violation of the community’s governing documents (Section 10.4) and Arizona state law (A.R.S. § 33-1817(A)(1)).
• The Board’s ability to create “Association Rules” is a separate and distinct process from the formal procedure required to amend the Declaration.
Final Order:
• The petitioner, Douglas J. Karolak, was deemed the prevailing party.
• The respondent HOA was ordered to pay the petitioner his $500.00 filing fee within thirty days of the order.
• No civil penalty was found to be appropriate in the matter.
• Critically, the judge determined that under the applicable statute (A.R.S. § 32-2199.02), the Administrative Law Judge does not have the authority to order the Amended CC&Rs rescinded, despite this being the remedy requested by the petitioner.
The order is binding on both parties unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the decision.
Study Guide – 20F-H2020041-REL
Study Guide: Karolak v. VVE – Casa Grande Homeowners Association
This guide is designed to review the key facts, legal arguments, and outcomes of the Administrative Law Judge Decision in the case of Douglas J. Karolak vs. VVE – Casa Grande Homeowners Association (No. 20F-H2020041-REL).
Short-Answer Quiz
Instructions: Answer the following questions in two to three complete sentences, drawing all information directly from the provided legal decision.
1. Who were the petitioner and the respondent in this case, and what was the petitioner’s core allegation?
2. What specific statute and section of the community documents did the petitioner claim the respondent violated?
3. According to Section 10.4 of the original CC&Rs, what was the required procedure for amending the Declaration?
4. Under what authority did the VVE – Casa Grande HOA Board claim it could make changes to the community documents without a membership vote?
5. What key event occurred on or about October 5, 2018, that became the central point of the dispute?
6. What was the respondent’s primary argument for why their actions were valid?
7. What is the “preponderance of the evidence,” and which party bears the burden of proof to establish a violation?
8. Why did the Administrative Law Judge conclude that the Board’s authority to create “Association Rules” was a separate process from amending the CC&Rs?
9. What remedy did the petitioner request, and why was it not granted by the Administrative Law Judge?
10. What was the final order issued by the Judge in this case?
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Answer Key
1. The petitioner was Douglas J. Karolak, a homeowner. The respondent was the VVE – Casa Grande Homeowners Association. Karolak’s core allegation was that the HOA had improperly amended the community’s governing documents.
2. The petitioner alleged a violation of Arizona Revised Statute (A.R.S.) § 33-1817(A)(1). He also claimed a violation of Part 10, Section 10.4 of the community’s Covenants, Conditions, and Restrictions (CC&Rs).
3. Section 10.4 of the CC&Rs stipulated that the Declaration could be amended by an instrument executed by the owners of at least two-thirds (2/3) of the lots. The amendment would not be effective until that instrument was officially recorded.
4. The HOA Board claimed it had the authority to make the changes under Section 3.4 of the CC&Rs. This section empowered the Board to adopt, amend, or repeal “Association Rules” as it deemed reasonable and appropriate.
5. On or about October 5, 2018, the Board recorded a document titled “Restated Declaration of Covenants, Conditions and Restrictions for Val Vista Estates” (Amended CC&Rs) with the Pinal County Recorder. This was done without the required two-thirds vote from the lot owners.
6. The respondent argued that because the only changes made were to Part 7 (Use Restrictions), which fell under the type of rules the Board was authorized to adopt, the Amended CC&Rs were a valid exercise of the Board’s authority. Their counsel did acknowledge, however, that perhaps the document should not have been recorded.
7. A “preponderance of the evidence” is proof that convinces 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 committed the alleged violations by this standard.
8. The Judge concluded they were separate processes because the CC&Rs cover the topics in different sections. This separation led the Judge to believe the original drafters did not intend for the Board to have the authority to amend the CC&Rs on its own.
9. The petitioner requested that the improperly recorded Amended CC&Rs be rescinded. This remedy was not granted because the applicable statute, A.R.S. § 32-2199.02, does not give the Administrative Law Judge the specific authority to order a document rescinded.
10. The final order deemed the petitioner the prevailing party. It further ordered the respondent to repay the petitioner his $500.00 filing fee within thirty days, but found that no civil penalty was appropriate.
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Essay Questions
Instructions: The following questions are designed to promote deeper analysis of the case. Formulate a comprehensive response to each, using only the information presented in the legal decision.
1. Analyze the distinction made by the Administrative Law Judge between the Board’s authority to create “Association Rules” under Section 3.4 and the process for amending the Declaration under Section 10.4. Why was this distinction critical to the case’s outcome?
2. Discuss the legal standard of “preponderance of the evidence” as defined in the decision. How did the petitioner successfully meet this burden of proof to establish the respondent’s violation, and what specific facts supported this conclusion?
3. Examine the respondent’s (HOA’s) argument regarding its authority to amend the CC&Rs. What were the fundamental flaws in this argument, and how did their counsel’s acknowledgment about the recording of the Amended CC&Rs potentially weaken their position?
4. Explain the legal framework governing this dispute, citing the specific Arizona Revised Statutes (A.R.S.) mentioned in the decision. Detail the roles of the Arizona Department of Real Estate, the Office of Administrative Hearings, and the Administrative Law Judge in resolving this type of HOA conflict.
5. Evaluate the final Order of the Administrative Law Judge. While the petitioner was deemed the prevailing party, why was their requested remedy (rescission of the Amended CC&Rs) denied? What does this reveal about the specific limits of the Administrative Law Judge’s authority in such cases under A.R.S. § 32-2199.02?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official who presides over administrative hearings. In this case, Tammy L. Eigenheer of the Office of Administrative Hearings made the findings of fact, conclusions of law, and issued the final order.
A.R.S. § 33-1817(A)(1)
The specific Arizona Revised Statute cited by the petitioner. It states that a declaration may be amended by the association with an affirmative vote or written consent of the number of owners specified in the declaration.
Amended CC&Rs
The document titled “Restated Declaration of Covenants, Conditions and Restrictions for Val Vista Estates,” which the HOA Board recorded on October 5, 2018, without the required two-thirds owner approval.
Association Rules
Rules and regulations that the HOA Board is empowered to adopt, amend, or repeal under Section 3.4 of the CC&Rs to govern the use of Common Areas and other parts of the Project. The Board argued their changes fell under this authority.
Burden of Proof
The obligation to prove one’s assertion. In this case, the petitioner bore the burden of proof to establish the respondent’s violations by a preponderance of the evidence.
An acronym for Covenants, Conditions, and Restrictions. These are the governing legal documents for a planned community. The original “Restated Declaration of Covenants, Conditions and Restrictions for VVE” was recorded on April 30, 1999.
Department
Refers to the Arizona Department of Real Estate, the agency with which the petitioner filed his Homeowners Association (HOA) Dispute Process Petition.
An acronym for Homeowners Association. In this case, the VVE – Casa Grande Homeowners Association, an association of 56 lot owners in Casa Grande, Arizona.
Office of Administrative Hearings
The office responsible for conducting hearings for disputes filed with state agencies like the Department of Real Estate.
Petitioner
The party who initiates a legal action or petition. In this case, homeowner Douglas J. Karolak.
Preponderance of the Evidence
The evidentiary standard required to win the case, defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
Respondent
The party against whom a petition is filed. In this case, the VVE – Casa Grande Homeowners Association.
Blog Post – 20F-H2020041-REL
Your HOA Just Changed the Rules? Why This Homeowner’s $500 Victory is a Warning to Everyone
For millions of Americans, living in a planned community means living under the authority of a Homeowners Association (HOA). While intended to protect property values, these relationships can often feel one-sided, with boards issuing mandates and homeowners feeling powerless to push back. It’s a common frustration, but it’s rare to see a single homeowner challenge their board and force a legal reckoning.
A recent case from Arizona, Douglas J. Karolak versus the VVE – Casa Grande Homeowners Association, provides a critical case study in board overreach and the surprising limits of legal victory. Karolak alleged his HOA board violated its own governing documents and state law by improperly changing the community’s core rules.
He took his case to an administrative law judge and, in a significant ruling, he won. But the outcome of this seemingly straightforward dispute was far from simple. The final decision reveals a shocking twist that holds critical lessons for every homeowner about the difference between being right on paper and getting the remedy you actually want.
There’s a Huge Difference Between a ‘Rule Change’ and a ‘Declaration Amendment’
The first lesson from this case is a critical one for every homeowner: understand the constitutional hierarchy of your community’s documents. The core of the dispute was the HOA Board’s attempt to amend its foundational document, the CC&Rs (Covenants, Conditions, and Restrictions), without getting the required approval from the homeowners.
Here are the key facts of the case:
• The Original Rule: The community’s CC&Rs explicitly stated in Section 10.4 that any amendment required a vote and execution by “at least two-thirds (2/3) of the Lots.” This is the highest level of authority in a planned community, akin to a constitution.
• The Failed Attempts: The Board had tried to get this two-thirds vote in both 2014 and 2015, but was unsuccessful.
• The Workaround: In 2018, the Board decided to bypass the homeowners. It used a separate power granted in Section 3.4 of the CC&Rs—the authority to create day-to-day “Association Rules”—to make what it called changes to the “‘rules section’ of the CC&Rs, specifically targeting the Use Restrictions in Part 7.”
The judge’s conclusion was crystal clear: The CC&Rs were drafted to treat the power to create “rules” and the power to “amend” the declaration as two entirely separate processes. This separation acts as a crucial check on the board’s power, preventing a small group from unilaterally changing the fundamental property rights of all owners. As the judge noted, “the original drafters of the CC&Rs did not contemplate that the Board had the authority to, on its own, amend the CC&Rs.”
Recording a Document Doesn’t Magically Make It Valid
To make their changes appear official, the HOA Board took a significant step. On October 5, 2018, they filed a document titled “Restated Declaration of Covenants, Conditions and Restrictions for Val Vista Estates (Amended CC&Rs)” with the Pinal County Recorder.
For the average homeowner, a formally recorded document filed with the county looks final, official, and legally binding. It’s an intimidating piece of paper that suggests any challenge would be futile.
However, the judge’s ruling highlights a critical legal truth: procedural legitimacy is paramount. An official-looking document, even one filed with the county, is invalid if the legal process required to create it was ignored. The judge found that because the Board did not follow the correct internal procedure—securing the two-thirds vote from homeowners—the very act of recording the document was improper. Even the HOA’s own lawyer seemed to concede this point during the hearing, acknowledging that “perhaps the Amended CC&Rs should not have been recorded.”
The Winner’s Paradox: You Can Be Right and Still Not Get Your Desired Fix
The final order from the Administrative Law Judge was unambiguous: Douglas Karolak, the petitioner, was officially deemed the “prevailing party.” The judge concluded that the HOA had acted in violation of its own community documents and Arizona state law. This was a clear-cut victory for the homeowner.
But here is the shocking twist. Karolak’s requested remedy was for the illegally filed “Amended CC&Rs” to be rescinded—in other words, to have them officially nullified and removed. This seems like the logical and necessary fix to the problem.
The judge, however, was bound by the limits of her authority. The final decision states plainly: “The Administrative Law Judge does not have the authority under the applicable statute to order the Amended CC&Rs rescinded.” This highlights a critical jurisdictional gap. The Administrative Law Judge’s role in this venue is to determine if a violation occurred and assign limited penalties, not to perform the function of a higher court, which might have the power to void a recorded document.
So, what was the actual remedy for this clear violation? The judge ordered the HOA to repay Karolak his $500 filing fee. No other civil penalty was issued. The homeowner won the argument but did not get the one thing he asked for to correct the board’s improper action.
A Victory on Paper, A Question in Practice
The case of Douglas J. Karolak is a powerful real-world lesson. It proves that a single homeowner, armed with a thorough understanding of their community’s governing documents, can successfully challenge an overreaching HOA board and win. It confirms that procedural shortcuts, even when filed and recorded, do not make an illegal action legal.
But it also reveals the frustrating limitations that can exist within the legal process. The homeowner was proven right, but the improperly filed document remains on the books, unable to be rescinded in this specific venue. It raises a crucial question for homeowners everywhere: How do you ensure your victory has real teeth?
Case Participants
Petitioner Side
Douglas J. Karolak(petitioner)
Respondent Side
David A. Fitzgibbons III(HOA attorney) Fitzgibbons Law Offices PLC Represented VVE – Casa Grande Homeowners Association
CV Mathai(witness) VVE – Casa Grande Homeowners Association
John Kelsey(witness) VVE – Casa Grande Homeowners Association
Kristi Kelsey(witness) VVE – Casa Grande Homeowners Association
William Findley(witness) VVE – Casa Grande Homeowners Association
Kay Niemi(witness) VVE – Casa Grande Homeowners Association
Mark Korte(witness) VVE – Casa Grande Homeowners Association
Felicia Del Sol(property manager rep) Norris Management
Neutral Parties
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
A.R.S. § 33-1817(A)(1); CC&Rs Part 10, Section 10.4
Outcome Summary
Petitioner was deemed the prevailing party after establishing that the Respondent HOA violated A.R.S. § 33-1817(A)(1) and the community documents by improperly recording Amended CC&Rs without proper owner consent. The Respondent was ordered to refund the $500.00 filing fee. However, the ALJ could not grant the requested relief (rescission of the Amended CC&Rs) due to a lack of statutory authority.
Key Issues & Findings
Violation regarding the validity of Amended CC&Rs due to lack of required owner approval.
The Petitioner alleged that the Amended CC&Rs recorded by the Board were invalid because they were not approved by two-thirds (2/3) of the lot owners as required by the CC&Rs and statute. The ALJ agreed, finding the Board acted improperly and violated the documents and statute.
Orders: Respondent was ordered to pay Petitioner the filing fee of $500.00. No civil penalty was assessed. The ALJ determined she lacked the statutory authority to order the rescission of the Amended CC&Rs requested by the Petitioner.
Briefing Document: Karolak vs. VVE – Casa Grande Homeowners Association
Executive Summary
This briefing analyzes the Administrative Law Judge (ALJ) Decision in the case of Douglas J. Karolak vs. VVE – Casa Grande Homeowners Association (No. 20F-H2020041-REL). The central issue was whether the HOA Board had the authority to unilaterally amend and record changes to the community’s Covenants, Conditions, and Restrictions (CC&Rs) without the required homeowner vote.
The petitioner, Douglas J. Karolak, successfully argued that the HOA violated its own governing documents and Arizona state law by filing “Amended CC&Rs” on October 5, 2018, without securing the approval of two-thirds of the lot owners. The HOA contended its actions were a valid exercise of its authority to create “Association Rules.”
ALJ Tammy L. Eigenheer ruled decisively in favor of the petitioner. The decision established a clear legal distinction between the Board’s power to adopt rules and the separate, more stringent process required to formally amend the CC&Rs. The judge found the Board acted improperly, declaring Karolak the prevailing party and ordering the HOA to reimburse his $500 filing fee. Notably, while the judge found the amended document was improperly recorded, she concluded she lacked the statutory authority to order its rescission, which was the remedy the petitioner had requested.
Case Overview
Case Name
Douglas J. Karolak vs. VVE – Casa Grande Homeowners Association
Case Number
20F-H2020041-REL
Arizona Office of Administrative Hearings
Administrative Law Judge
Tammy L. Eigenheer
Hearing Date
May 1, 2020
Decision Date
May 21, 2020
The Central Dispute
The core of the dispute revolved around the legitimacy of a document titled “Restated Declaration of Covenants, Conditions and Restrictions for Val Vista Estates” (Amended CC&Rs), which the HOA Board recorded with the Pinal County Recorder on October 5, 2018.
• Petitioner’s Position (Douglas J. Karolak): The Amended CC&Rs are invalid because they were not approved by “owners of at least two-thirds (2/3) of the Lots,” a requirement explicitly stated in Section 10.4 of the original CC&Rs and supported by Arizona statute A.R.S. § 33-1817(A)(1). Karolak argued that the Board’s action of recording an amendment is fundamentally different from its power to adopt internal “Association Rules.”
• Respondent’s Position (VVE – Casa Grande HOA): The Board argued that its actions were a valid exercise of the authority granted to it under the CC&Rs. It claimed that because the only changes were to Part 7 (Use Restrictions), they fell under the Board’s power to “adopt, amend, or repeal such rules and regulations as it deems reasonable and appropriate” (Section 3.4) and to “modify or waive the foregoing restrictions… by reasonable rules and regulations” (Section 7.43). The Respondent’s counsel did, however, concede that “perhaps the Amended CC&Rs should not have been recorded.”
Factual Background and Chronology
• The VVE – Casa Grande Homeowners Association is a 56-lot community in Casa Grande, Arizona, with 19 lots remaining vacant at the time of the hearing.
• April 30, 1999: The original “Restated Declaration of Covenants, Conditions and Restrictions for VVE” (CC&Rs) was recorded.
• 2014 and 2015: The HOA Board made unsuccessful attempts to amend the CC&Rs through membership votes.
• 2018: Following the failed votes, the Board determined it would make changes to the “rules section” of the CC&Rs under the authority it believed was granted by Section 3.4.
• October 5, 2018: The Board recorded the Amended CC&Rs with the Pinal County Recorder. The HOA acknowledged that these amendments had not been approved by the required two-thirds of lot owners.
Legal Analysis and Key Provisions
The decision rested on the interpretation of specific sections of the community’s CC&Rs and Arizona state law. The judge concluded that the document’s structure clearly separates the process of rulemaking from the process of formal amendment.
Provision
Source
Summary of Stipulation
Amendment Process
CC&Rs Section 10.4
Requires an instrument “executed by the Owners of at least two-thirds (2/3) of the Lots” and recorded to become effective.
Rulemaking Authority
CC&Rs Section 3.4
Empowers the Board to adopt, amend, or repeal “Association Rules” governing the use of the property. States rules have the “same force and effect as if they were set forth in” the CC&Rs.
Statutory Requirement
A.R.S. § 33-1817(A)(1)
Provides that a declaration may be amended by the association via an affirmative vote or written consent of the number of owners specified in the declaration.
The judge’s rationale emphasized that the distinct sections for rulemaking (3.4) and amendments (10.4) demonstrate that the original drafters did not intend for the Board to have the power to unilaterally amend the CC&Rs. The judge stated, “The fact that the two topics are covered as separate topics in the CC&Rs leads to the conclusion that the original drafters of the CC&Rs did not contemplate that the Board had the authority to, on its own, amend the CC&Rs.”
The Court’s Decision and Final Order
The Administrative Law Judge ruled that the petitioner, Douglas J. Karolak, had successfully proven by a preponderance of the evidence that the respondent HOA had acted improperly.
Key Findings:
• The HOA Board did not have the authority to amend the CC&Rs without the approval of two-thirds of the lot owners.
• The Board’s action of recording the Amended CC&Rs on October 5, 2018, was a violation of the community’s governing documents (Section 10.4) and Arizona state law (A.R.S. § 33-1817(A)(1)).
• The Board’s ability to create “Association Rules” is a separate and distinct process from the formal procedure required to amend the Declaration.
Final Order:
• The petitioner, Douglas J. Karolak, was deemed the prevailing party.
• The respondent HOA was ordered to pay the petitioner his $500.00 filing fee within thirty days of the order.
• No civil penalty was found to be appropriate in the matter.
• Critically, the judge determined that under the applicable statute (A.R.S. § 32-2199.02), the Administrative Law Judge does not have the authority to order the Amended CC&Rs rescinded, despite this being the remedy requested by the petitioner.
The order is binding on both parties unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the decision.
Study Guide – 20F-H2020041-REL
Study Guide: Karolak v. VVE – Casa Grande Homeowners Association
This guide is designed to review the key facts, legal arguments, and outcomes of the Administrative Law Judge Decision in the case of Douglas J. Karolak vs. VVE – Casa Grande Homeowners Association (No. 20F-H2020041-REL).
Short-Answer Quiz
Instructions: Answer the following questions in two to three complete sentences, drawing all information directly from the provided legal decision.
1. Who were the petitioner and the respondent in this case, and what was the petitioner’s core allegation?
2. What specific statute and section of the community documents did the petitioner claim the respondent violated?
3. According to Section 10.4 of the original CC&Rs, what was the required procedure for amending the Declaration?
4. Under what authority did the VVE – Casa Grande HOA Board claim it could make changes to the community documents without a membership vote?
5. What key event occurred on or about October 5, 2018, that became the central point of the dispute?
6. What was the respondent’s primary argument for why their actions were valid?
7. What is the “preponderance of the evidence,” and which party bears the burden of proof to establish a violation?
8. Why did the Administrative Law Judge conclude that the Board’s authority to create “Association Rules” was a separate process from amending the CC&Rs?
9. What remedy did the petitioner request, and why was it not granted by the Administrative Law Judge?
10. What was the final order issued by the Judge in this case?
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Answer Key
1. The petitioner was Douglas J. Karolak, a homeowner. The respondent was the VVE – Casa Grande Homeowners Association. Karolak’s core allegation was that the HOA had improperly amended the community’s governing documents.
2. The petitioner alleged a violation of Arizona Revised Statute (A.R.S.) § 33-1817(A)(1). He also claimed a violation of Part 10, Section 10.4 of the community’s Covenants, Conditions, and Restrictions (CC&Rs).
3. Section 10.4 of the CC&Rs stipulated that the Declaration could be amended by an instrument executed by the owners of at least two-thirds (2/3) of the lots. The amendment would not be effective until that instrument was officially recorded.
4. The HOA Board claimed it had the authority to make the changes under Section 3.4 of the CC&Rs. This section empowered the Board to adopt, amend, or repeal “Association Rules” as it deemed reasonable and appropriate.
5. On or about October 5, 2018, the Board recorded a document titled “Restated Declaration of Covenants, Conditions and Restrictions for Val Vista Estates” (Amended CC&Rs) with the Pinal County Recorder. This was done without the required two-thirds vote from the lot owners.
6. The respondent argued that because the only changes made were to Part 7 (Use Restrictions), which fell under the type of rules the Board was authorized to adopt, the Amended CC&Rs were a valid exercise of the Board’s authority. Their counsel did acknowledge, however, that perhaps the document should not have been recorded.
7. A “preponderance of the evidence” is proof that convinces 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 committed the alleged violations by this standard.
8. The Judge concluded they were separate processes because the CC&Rs cover the topics in different sections. This separation led the Judge to believe the original drafters did not intend for the Board to have the authority to amend the CC&Rs on its own.
9. The petitioner requested that the improperly recorded Amended CC&Rs be rescinded. This remedy was not granted because the applicable statute, A.R.S. § 32-2199.02, does not give the Administrative Law Judge the specific authority to order a document rescinded.
10. The final order deemed the petitioner the prevailing party. It further ordered the respondent to repay the petitioner his $500.00 filing fee within thirty days, but found that no civil penalty was appropriate.
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Essay Questions
Instructions: The following questions are designed to promote deeper analysis of the case. Formulate a comprehensive response to each, using only the information presented in the legal decision.
1. Analyze the distinction made by the Administrative Law Judge between the Board’s authority to create “Association Rules” under Section 3.4 and the process for amending the Declaration under Section 10.4. Why was this distinction critical to the case’s outcome?
2. Discuss the legal standard of “preponderance of the evidence” as defined in the decision. How did the petitioner successfully meet this burden of proof to establish the respondent’s violation, and what specific facts supported this conclusion?
3. Examine the respondent’s (HOA’s) argument regarding its authority to amend the CC&Rs. What were the fundamental flaws in this argument, and how did their counsel’s acknowledgment about the recording of the Amended CC&Rs potentially weaken their position?
4. Explain the legal framework governing this dispute, citing the specific Arizona Revised Statutes (A.R.S.) mentioned in the decision. Detail the roles of the Arizona Department of Real Estate, the Office of Administrative Hearings, and the Administrative Law Judge in resolving this type of HOA conflict.
5. Evaluate the final Order of the Administrative Law Judge. While the petitioner was deemed the prevailing party, why was their requested remedy (rescission of the Amended CC&Rs) denied? What does this reveal about the specific limits of the Administrative Law Judge’s authority in such cases under A.R.S. § 32-2199.02?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official who presides over administrative hearings. In this case, Tammy L. Eigenheer of the Office of Administrative Hearings made the findings of fact, conclusions of law, and issued the final order.
A.R.S. § 33-1817(A)(1)
The specific Arizona Revised Statute cited by the petitioner. It states that a declaration may be amended by the association with an affirmative vote or written consent of the number of owners specified in the declaration.
Amended CC&Rs
The document titled “Restated Declaration of Covenants, Conditions and Restrictions for Val Vista Estates,” which the HOA Board recorded on October 5, 2018, without the required two-thirds owner approval.
Association Rules
Rules and regulations that the HOA Board is empowered to adopt, amend, or repeal under Section 3.4 of the CC&Rs to govern the use of Common Areas and other parts of the Project. The Board argued their changes fell under this authority.
Burden of Proof
The obligation to prove one’s assertion. In this case, the petitioner bore the burden of proof to establish the respondent’s violations by a preponderance of the evidence.
An acronym for Covenants, Conditions, and Restrictions. These are the governing legal documents for a planned community. The original “Restated Declaration of Covenants, Conditions and Restrictions for VVE” was recorded on April 30, 1999.
Department
Refers to the Arizona Department of Real Estate, the agency with which the petitioner filed his Homeowners Association (HOA) Dispute Process Petition.
An acronym for Homeowners Association. In this case, the VVE – Casa Grande Homeowners Association, an association of 56 lot owners in Casa Grande, Arizona.
Office of Administrative Hearings
The office responsible for conducting hearings for disputes filed with state agencies like the Department of Real Estate.
Petitioner
The party who initiates a legal action or petition. In this case, homeowner Douglas J. Karolak.
Preponderance of the Evidence
The evidentiary standard required to win the case, defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
Respondent
The party against whom a petition is filed. In this case, the VVE – Casa Grande Homeowners Association.
Blog Post – 20F-H2020041-REL
Your HOA Just Changed the Rules? Why This Homeowner’s $500 Victory is a Warning to Everyone
For millions of Americans, living in a planned community means living under the authority of a Homeowners Association (HOA). While intended to protect property values, these relationships can often feel one-sided, with boards issuing mandates and homeowners feeling powerless to push back. It’s a common frustration, but it’s rare to see a single homeowner challenge their board and force a legal reckoning.
A recent case from Arizona, Douglas J. Karolak versus the VVE – Casa Grande Homeowners Association, provides a critical case study in board overreach and the surprising limits of legal victory. Karolak alleged his HOA board violated its own governing documents and state law by improperly changing the community’s core rules.
He took his case to an administrative law judge and, in a significant ruling, he won. But the outcome of this seemingly straightforward dispute was far from simple. The final decision reveals a shocking twist that holds critical lessons for every homeowner about the difference between being right on paper and getting the remedy you actually want.
There’s a Huge Difference Between a ‘Rule Change’ and a ‘Declaration Amendment’
The first lesson from this case is a critical one for every homeowner: understand the constitutional hierarchy of your community’s documents. The core of the dispute was the HOA Board’s attempt to amend its foundational document, the CC&Rs (Covenants, Conditions, and Restrictions), without getting the required approval from the homeowners.
Here are the key facts of the case:
• The Original Rule: The community’s CC&Rs explicitly stated in Section 10.4 that any amendment required a vote and execution by “at least two-thirds (2/3) of the Lots.” This is the highest level of authority in a planned community, akin to a constitution.
• The Failed Attempts: The Board had tried to get this two-thirds vote in both 2014 and 2015, but was unsuccessful.
• The Workaround: In 2018, the Board decided to bypass the homeowners. It used a separate power granted in Section 3.4 of the CC&Rs—the authority to create day-to-day “Association Rules”—to make what it called changes to the “‘rules section’ of the CC&Rs, specifically targeting the Use Restrictions in Part 7.”
The judge’s conclusion was crystal clear: The CC&Rs were drafted to treat the power to create “rules” and the power to “amend” the declaration as two entirely separate processes. This separation acts as a crucial check on the board’s power, preventing a small group from unilaterally changing the fundamental property rights of all owners. As the judge noted, “the original drafters of the CC&Rs did not contemplate that the Board had the authority to, on its own, amend the CC&Rs.”
Recording a Document Doesn’t Magically Make It Valid
To make their changes appear official, the HOA Board took a significant step. On October 5, 2018, they filed a document titled “Restated Declaration of Covenants, Conditions and Restrictions for Val Vista Estates (Amended CC&Rs)” with the Pinal County Recorder.
For the average homeowner, a formally recorded document filed with the county looks final, official, and legally binding. It’s an intimidating piece of paper that suggests any challenge would be futile.
However, the judge’s ruling highlights a critical legal truth: procedural legitimacy is paramount. An official-looking document, even one filed with the county, is invalid if the legal process required to create it was ignored. The judge found that because the Board did not follow the correct internal procedure—securing the two-thirds vote from homeowners—the very act of recording the document was improper. Even the HOA’s own lawyer seemed to concede this point during the hearing, acknowledging that “perhaps the Amended CC&Rs should not have been recorded.”
The Winner’s Paradox: You Can Be Right and Still Not Get Your Desired Fix
The final order from the Administrative Law Judge was unambiguous: Douglas Karolak, the petitioner, was officially deemed the “prevailing party.” The judge concluded that the HOA had acted in violation of its own community documents and Arizona state law. This was a clear-cut victory for the homeowner.
But here is the shocking twist. Karolak’s requested remedy was for the illegally filed “Amended CC&Rs” to be rescinded—in other words, to have them officially nullified and removed. This seems like the logical and necessary fix to the problem.
The judge, however, was bound by the limits of her authority. The final decision states plainly: “The Administrative Law Judge does not have the authority under the applicable statute to order the Amended CC&Rs rescinded.” This highlights a critical jurisdictional gap. The Administrative Law Judge’s role in this venue is to determine if a violation occurred and assign limited penalties, not to perform the function of a higher court, which might have the power to void a recorded document.
So, what was the actual remedy for this clear violation? The judge ordered the HOA to repay Karolak his $500 filing fee. No other civil penalty was issued. The homeowner won the argument but did not get the one thing he asked for to correct the board’s improper action.
A Victory on Paper, A Question in Practice
The case of Douglas J. Karolak is a powerful real-world lesson. It proves that a single homeowner, armed with a thorough understanding of their community’s governing documents, can successfully challenge an overreaching HOA board and win. It confirms that procedural shortcuts, even when filed and recorded, do not make an illegal action legal.
But it also reveals the frustrating limitations that can exist within the legal process. The homeowner was proven right, but the improperly filed document remains on the books, unable to be rescinded in this specific venue. It raises a crucial question for homeowners everywhere: How do you ensure your victory has real teeth?
Case Participants
Petitioner Side
Douglas J. Karolak(petitioner)
Respondent Side
David A. Fitzgibbons III(HOA attorney) Fitzgibbons Law Offices PLC Represented VVE – Casa Grande Homeowners Association
CV Mathai(witness) VVE – Casa Grande Homeowners Association
John Kelsey(witness) VVE – Casa Grande Homeowners Association
Kristi Kelsey(witness) VVE – Casa Grande Homeowners Association
William Findley(witness) VVE – Casa Grande Homeowners Association
Kay Niemi(witness) VVE – Casa Grande Homeowners Association
Mark Korte(witness) VVE – Casa Grande Homeowners Association
Felicia Del Sol(property manager rep) Norris Management
Neutral Parties
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
The Petition was upheld on all issues asserted by the Petitioner. The Respondent was found in violation of A.R.S. § 33-1250(C) (failure to provide election documents), A.R.S. § 33-1248(B) (failure to hold an annual meeting in 2019), and Article 3, Section 2 of the Bylaws (improperly prohibiting write-in ballots). Respondent was ordered to supply Petitioner with relevant documents and refund the Petitioner's filing fee of $1,500.00. No Civil Penalty was found appropriate.
Respondent failed to provide Petitioner with the required election materials and documentation from the October 2018 elections, violating statutory requirements for retention and availability of these materials for owner inspection.
Orders: Respondent ordered to supply Petitioner with the relevant documents, pursuant to A.R.S. § 33-1250(C), within ten (10) days of the Order.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1250(C)
Open meetings; exceptions
Respondent postponed its required yearly 2019 meeting until January 2020, resulting in a failure to hold a unit owners' association meeting in 2019 as required by statute.
Orders: Petition upheld on this issue.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1248(B)
Selection
Respondent's board of directors declared write-in ballots invalid for the November 20, 2019, election. Since the Bylaws were silent on prohibiting write-in ballots, Respondent failed to show how the ballots were invalid.
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
20F-H2019033-REL Decision – 778923.pdf
Uploaded 2025-10-09T03:34:47 (108.5 KB)
Briefing Doc – 20F-H2019033-REL
Briefing Document: Bischoff v. Country Hills West Condominium Association
Executive Summary
This document synthesizes the findings and decision in the case of Donna M. Bischoff v. Country Hills West Condominium Association, Inc. (No. 20F-H2019033-REL), heard by the Arizona Office of Administrative Hearings. The Administrative Law Judge found entirely in favor of the Petitioner, Donna M. Bischoff, concluding that the Respondent, Country Hills West Condominium Association (“the Association”), committed multiple violations of Arizona state statutes and its own governing documents.
The core violations upheld by the court are:
1. Failure to Hold a Required Annual Meeting: The Association violated A.R.S. § 33-1248(B) by failing to hold its required annual meeting within the 2019 calendar year, repeatedly postponing it until January 2020.
2. Failure to Provide Election Records: The Association violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with complete election materials for inspection, including ballots, envelopes, and sign-in sheets from the October 2018 election.
3. Improper Prohibition of Write-In Ballots: The Association violated Article 3, Section 2 of its Bylaws by unilaterally prohibiting write-in ballots for the 2019 election, despite its governing documents being silent on the issue.
As a result, the Association was ordered to provide the requested documents to the Petitioner within ten days and to reimburse her $1,500 filing fee within thirty days. The decision underscores the legal obligation of homeowners’ associations to adhere strictly to statutory requirements for meetings, elections, and record transparency.
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I. Case Overview
The dispute was adjudicated by the Office of Administrative Hearings following a petition filed by homeowner Donna M. Bischoff with the Arizona Department of Real Estate on December 11, 2019.
Case Detail
Information
Case Name
Donna M Bischoff, Petitioner, v. Country Hills West Condominium Association, Inc., Respondent
Case Number
20F-H2019033-REL
Adjudicator
Administrative Law Judge Antara Nath Rivera
Hearing Date
March 10, 2020
Decision Date
March 30, 2020
Petitioner Representative
Donna M. Bischoff (on her own behalf)
Respondent Representative
Doug Meyer, President and Director
II. Petitioner’s Allegations
The Petitioner, Donna M. Bischoff, asserted that the Country Hills West Condominium Association committed violations of state law and its own governing documents. The specific allegations were:
• Violation of A.R.S. § 33-1248(B): Failure to hold the mandatory annual unit owners’ association meeting within the 2019 calendar year.
• Violation of A.R.S. § 33-1250(C): Failure to make election materials, including ballots and related items, available for inspection by a unit owner.
• Violation of Bylaws Article 3, Section 2: Improperly invalidating election ballots by prohibiting write-in candidates without any authority from the governing documents.
The Petitioner bore the burden of proof to establish these violations by a “preponderance of the evidence,” defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
III. Core Issues and Factual Findings
The hearing established several key facts that formed the basis of the Judge’s decision. The testimony from both Ms. Bischoff and the Association’s President, Doug Meyer, was central to these findings.
A. Failure to Hold the 2019 Annual Meeting
• Timeline of Events: The Association’s required annual meeting for 2019 was initially scheduled for November 20, 2019. It was subsequently postponed three times: first to December 19, 2019; then to December 30, 2019; and ultimately held on January 24, 2020.
• Respondent’s Justification: Mr. Meyer testified that the postponements were necessary because write-in candidates appeared on the ballot, which the board had prohibited. He stated that the board “needed time to reprint the ballot and mail them out.”
• Conclusion of Law: The evidence was undisputed that no annual meeting took place during the 2019 calendar year. The Judge concluded that by postponing the meeting into the following year, the Association was in direct violation of A.R.S. § 33-1248(B), which mandates that “A meeting of the unit owners’ association shall be held at least once each year.”
B. Denial of Access to Election Records
• Petitioner’s Request: In October 2018, Ms. Bischoff requested to see the election results from the October 2018 meeting, specifically seeking to know which units had voted.
• Respondent’s Response: The Association initially did not provide the results. A few weeks prior to the March 2020 hearing, it supplied Ms. Bischoff with vote tallies and a list of unit members who voted. However, it failed to provide the full scope of required materials.
• Missing Documentation: The Association did not provide the “ballots, envelopes, related materials, and sign-in sheets” as mandated by statute for inspection.
• Respondent’s Justification: Mr. Meyer argued that no election actually occurred at the October 18, 2018, meeting because there was no quorum. He further made the admission that the Association had not achieved a quorum for any meeting in the preceding 20 years. He claimed that without an election, there was no obligation to publish ballots.
• Conclusion of Law: The Judge found that the Association violated A.R.S. § 33-1250(C). The statute requires that “Ballots, envelopes and related materials… shall be retained… and made available for unit owner inspection for at least one year.” The partial and delayed provision of records was insufficient to meet this legal requirement.
C. Improper Prohibition of Write-In Ballots
• The Dispute: The November 20, 2019, meeting was cancelled because some ballots contained write-in candidates. The board of directors informed members that write-in ballots were prohibited and would be “thrown out.”
• Petitioner’s Argument: Ms. Bischoff argued that the board could not “choose how to interpret a silent document.” She pointed out that the Bylaws and Articles of Incorporation do not prohibit write-in ballots and that the same board had allowed them in a 2017 election.
• Respondent’s Position: Mr. Meyer acknowledged that the Bylaws were silent on the issue but stated the Association needed to “figure out how to handle” them. A membership meeting to discuss the issue was held on December 30, 2019, but failed to achieve a quorum.
• Conclusion of Law: The Judge determined that the Association violated its own Bylaws. The decision states, “absent any clear language in the A.R.S. or the Bylaws prohibiting write in ballots, Respondent failed to show how the ballots were invalid.” The board’s unilateral prohibition was therefore found to be improper.
IV. Legal Conclusions and Final Order
The Administrative Law Judge upheld the petition on all issues, finding that the Petitioner had successfully proven her case by a preponderance of the evidence.
Final Order:
Based on the foregoing conclusions, IT IS ORDERED that:
1. The Petition filed by Donna M. Bischoff is upheld on all issues.
2. The Petitioner is deemed the prevailing party in the matter.
3. The Respondent must supply the Petitioner with the relevant election documents pursuant to A.R.S. § 33-1250(C) within ten (10) days of the Order.
4. The Respondent must pay the Petitioner’s filing fee of $1,500.00 directly to the Petitioner within thirty (30) days of the Order.
5. No Civil Penalty is found to be appropriate in this matter.
The Order is binding on the parties unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
Study Guide – 20F-H2019033-REL
Study Guide: Bischoff v. Country Hills West Condominium Association, Inc.
This study guide provides a review of the Administrative Law Judge Decision in case number 20F-H2019033-REL, concerning a dispute between a homeowner and a condominium association. It includes a quiz with an answer key, essay questions for deeper analysis, and a glossary of key terms found in the source document.
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Short-Answer Quiz
Instructions: Answer the following questions in 2-3 sentences each, based on the provided source document.
1. Who were the primary parties in the legal dispute, and what were their roles?
2. What specific violations did the Petitioner, Donna M. Bischoff, allege against the Respondent?
3. Why was the 2019 yearly meeting for the Country Hills West Condominium Association repeatedly rescheduled?
4. What was the Respondent’s position on the validity of write-in ballots for the November 20, 2019, election?
5. What information did the Petitioner request from the October 2018 election, and what was the initial response?
6. What is the definition of “quorum” according to the association’s Bylaws, and why was it significant in this case?
7. What is the legal standard of proof the Petitioner was required to meet in this hearing?
8. According to the decision, how did the Respondent violate A.R.S. § 33-1248(B) regarding association meetings?
9. According to the decision, how did the Respondent violate A.R.S. § 33-1250(C) regarding election materials?
10. What were the key components of the final Order issued by the Administrative Law Judge?
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Answer Key
1. The primary parties were Donna M. Bischoff, the Petitioner, and the Country Hills West Condominium Association, Inc., the Respondent. The Petitioner is the homeowner who filed the complaint, and the Respondent is the homeowners association accused of violations.
2. The Petitioner alleged violations of Arizona Revised Statutes (A.R.S.) § 33-1250(C) and § 33-1248(B), as well as Article 3, Section 2 of the association’s Bylaws. These allegations related to the handling of yearly meetings and elections.
3. The 2019 yearly meeting was initially scheduled for November 20, 2019, but was rescheduled three times, ultimately taking place in January 2020. The first cancellation was because some ballots contained write-in candidates, which the board deemed prohibited.
4. The Respondent’s representative, Doug Meyer, testified that members were informed that write-in ballots were not valid for the November 20, 2019, election. He stated that any ballots with write-in candidates would have been thrown out.
5. The Petitioner requested to see the election results from the October 2018 election, specifically wanting to know which units voted. While she was eventually given the voting tallies, the Respondent did not initially provide the requested results.
6. Quorum is defined in Article 4, Section 3 of the Bylaws. It was significant because the Respondent’s president, Mr. Meyer, acknowledged that the association had not achieved a quorum for its meetings in the last 20 years, and thus no election occurred at the October 18, 2018, meeting.
7. The Petitioner had the burden of proof to establish the alleged violations by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that a contention is more probably true than not.
8. The Respondent violated A.R.S. § 33-1248(B) by failing to hold a required yearly meeting within the calendar year of 2019. The evidence showed that the meeting scheduled for 2019 was postponed until January 2020.
9. The Respondent violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with all required election materials from the 2018 election. While vote tallies were eventually provided, the statute requires that ballots, envelopes, and related materials be retained and made available for inspection for at least one year.
10. The Administrative Law Judge’s Order upheld the Petition on all issues, deemed the Petitioner the prevailing party, and required the Respondent to supply the relevant documents within 10 days. The Order also mandated that the Respondent reimburse the Petitioner’s filing fee of $1,500.00 within 30 days.
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Essay Questions
Instructions: The following questions are designed for longer, more analytical responses. Use the information presented in the source document to construct a comprehensive argument for each prompt.
1. Analyze the Respondent’s handling of the write-in ballot issue for the 2019 election. Discuss the legal basis (or lack thereof) for their actions as presented in the hearing, and explain why the Administrative Law Judge ultimately ruled that their prohibition of these ballots was a violation of the Bylaws.
2. Explain the concept of “quorum” as it relates to this case. How did the association’s failure to achieve a quorum for 20 years impact its governance, specifically regarding the 2018 meeting and the Respondent’s obligation to produce election records?
3. Describe in detail the specific violations of the Arizona Revised Statutes (A.R.S.) that the Country Hills West Condominium Association was found to have committed. For each statute (A.R.S. § 33-1248(B) and A.R.S. § 33-1250(C)), detail the legal requirement and explain how the Respondent’s actions failed to meet that standard.
4. Discuss the legal standard of “preponderance of the evidence.” Using testimony and evidence presented by both the Petitioner and the Respondent, explain how the Petitioner successfully met this burden of proof for her allegations.
5. Outline the final Order issued by the Administrative Law Judge. Beyond the simple outcome, explain the significance of each component of the order, including the validation of the petition, the designation of a “prevailing party,” the directive to supply documents, and the financial remedy awarded.
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Glossary of Key Terms
Definition
Administrative Law Judge
An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions and orders. In this case, Antara Nath Rivera.
Arizona Department of Real Estate (Department)
The state agency with which a homeowner or planned community organization can file a petition for a hearing concerning violations of community documents or statutes.
Arizona Revised Statutes (A.R.S.)
The collection of laws enacted by the Arizona state legislature. The specific statutes cited were A.R.S. §§ 33-1250(C) and 33-1248(B).
Bylaws
The rules and regulations that govern the internal operations of an organization, such as a homeowners association. In this case, the Bylaws of Country Hills West Association, Inc. were a key document.
Homeowners Association (HOA)
An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents.
Office of Administrative Hearings
The state agency where petitions filed with the Department of Real Estate are heard before an Administrative Law Judge.
Petitioner
The party who files a petition or brings a legal action against another party. In this case, Donna M. Bischoff.
Preponderance of the evidence
The standard of proof in this civil administrative case. It is met when the evidence presented is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”
Quorum
The minimum number of members of an assembly or society that must be present at any of its meetings to make the proceedings of that meeting valid. The Respondent had not achieved quorum for 20 years.
Respondent
The party against whom a petition is filed or a legal action is brought. In this case, Country Hills West Condominium Association, Inc.
Blog Post – 20F-H2019033-REL
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This source is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between Donna M. Bischoff, the Petitioner, and Country Hills West Condominium Association, Inc., the Respondent. The document details the hearing held on March 10, 2020, where the Petitioner alleged the Condominium Association violated Arizona Revised Statutes (A.R.S.) and the association’s Bylaws. Specifically, the Petitioner claimed violations related to the failure to hold a required yearly meeting in 2019, the failure to provide election materials for inspection, and the improper prohibition of write-in ballots where the Bylaws were silent. The Administrative Law Judge ultimately upheld the Petition on all issues, finding the Respondent in violation, and ordered the Association to provide the requested documents and pay the Petitioner’s $1,500.00 filing fee.
What were the specific legal violations found against the Condominium Association regarding meetings and documents?
How did the lack of clarity in the Bylaws regarding write-in ballots impact the association’s actions?
What was the ultimate outcome of this administrative hearing, including the ordered remedies for the petitioner?
Based on 1 source
Case Participants
Petitioner Side
Donna M Bischoff(petitioner) Appeared on her own behalf
Respondent Side
Doug Meyer(president, director, witness) Country Hills West Condominium Association, Inc. Appeared and testified on behalf of Respondent
Neutral Parties
Antara Nath Rivera(ALJ) OAH
Judy Lowe(commissioner) Arizona Department of Real Estate Decision transmitted electronically to Commissioner
The Petition was upheld on all issues asserted by the Petitioner. The Respondent was found in violation of A.R.S. § 33-1250(C) (failure to provide election documents), A.R.S. § 33-1248(B) (failure to hold an annual meeting in 2019), and Article 3, Section 2 of the Bylaws (improperly prohibiting write-in ballots). Respondent was ordered to supply Petitioner with relevant documents and refund the Petitioner's filing fee of $1,500.00. No Civil Penalty was found appropriate.
Respondent failed to provide Petitioner with the required election materials and documentation from the October 2018 elections, violating statutory requirements for retention and availability of these materials for owner inspection.
Orders: Respondent ordered to supply Petitioner with the relevant documents, pursuant to A.R.S. § 33-1250(C), within ten (10) days of the Order.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1250(C)
Open meetings; exceptions
Respondent postponed its required yearly 2019 meeting until January 2020, resulting in a failure to hold a unit owners' association meeting in 2019 as required by statute.
Orders: Petition upheld on this issue.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1248(B)
Selection
Respondent's board of directors declared write-in ballots invalid for the November 20, 2019, election. Since the Bylaws were silent on prohibiting write-in ballots, Respondent failed to show how the ballots were invalid.
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
20F-H2019033-REL Decision – 778923.pdf
Uploaded 2026-01-23T17:31:15 (108.5 KB)
Briefing Doc – 20F-H2019033-REL
Briefing Document: Bischoff v. Country Hills West Condominium Association
Executive Summary
This document synthesizes the findings and decision in the case of Donna M. Bischoff v. Country Hills West Condominium Association, Inc. (No. 20F-H2019033-REL), heard by the Arizona Office of Administrative Hearings. The Administrative Law Judge found entirely in favor of the Petitioner, Donna M. Bischoff, concluding that the Respondent, Country Hills West Condominium Association (“the Association”), committed multiple violations of Arizona state statutes and its own governing documents.
The core violations upheld by the court are:
1. Failure to Hold a Required Annual Meeting: The Association violated A.R.S. § 33-1248(B) by failing to hold its required annual meeting within the 2019 calendar year, repeatedly postponing it until January 2020.
2. Failure to Provide Election Records: The Association violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with complete election materials for inspection, including ballots, envelopes, and sign-in sheets from the October 2018 election.
3. Improper Prohibition of Write-In Ballots: The Association violated Article 3, Section 2 of its Bylaws by unilaterally prohibiting write-in ballots for the 2019 election, despite its governing documents being silent on the issue.
As a result, the Association was ordered to provide the requested documents to the Petitioner within ten days and to reimburse her $1,500 filing fee within thirty days. The decision underscores the legal obligation of homeowners’ associations to adhere strictly to statutory requirements for meetings, elections, and record transparency.
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I. Case Overview
The dispute was adjudicated by the Office of Administrative Hearings following a petition filed by homeowner Donna M. Bischoff with the Arizona Department of Real Estate on December 11, 2019.
Case Detail
Information
Case Name
Donna M Bischoff, Petitioner, v. Country Hills West Condominium Association, Inc., Respondent
Case Number
20F-H2019033-REL
Adjudicator
Administrative Law Judge Antara Nath Rivera
Hearing Date
March 10, 2020
Decision Date
March 30, 2020
Petitioner Representative
Donna M. Bischoff (on her own behalf)
Respondent Representative
Doug Meyer, President and Director
II. Petitioner’s Allegations
The Petitioner, Donna M. Bischoff, asserted that the Country Hills West Condominium Association committed violations of state law and its own governing documents. The specific allegations were:
• Violation of A.R.S. § 33-1248(B): Failure to hold the mandatory annual unit owners’ association meeting within the 2019 calendar year.
• Violation of A.R.S. § 33-1250(C): Failure to make election materials, including ballots and related items, available for inspection by a unit owner.
• Violation of Bylaws Article 3, Section 2: Improperly invalidating election ballots by prohibiting write-in candidates without any authority from the governing documents.
The Petitioner bore the burden of proof to establish these violations by a “preponderance of the evidence,” defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
III. Core Issues and Factual Findings
The hearing established several key facts that formed the basis of the Judge’s decision. The testimony from both Ms. Bischoff and the Association’s President, Doug Meyer, was central to these findings.
A. Failure to Hold the 2019 Annual Meeting
• Timeline of Events: The Association’s required annual meeting for 2019 was initially scheduled for November 20, 2019. It was subsequently postponed three times: first to December 19, 2019; then to December 30, 2019; and ultimately held on January 24, 2020.
• Respondent’s Justification: Mr. Meyer testified that the postponements were necessary because write-in candidates appeared on the ballot, which the board had prohibited. He stated that the board “needed time to reprint the ballot and mail them out.”
• Conclusion of Law: The evidence was undisputed that no annual meeting took place during the 2019 calendar year. The Judge concluded that by postponing the meeting into the following year, the Association was in direct violation of A.R.S. § 33-1248(B), which mandates that “A meeting of the unit owners’ association shall be held at least once each year.”
B. Denial of Access to Election Records
• Petitioner’s Request: In October 2018, Ms. Bischoff requested to see the election results from the October 2018 meeting, specifically seeking to know which units had voted.
• Respondent’s Response: The Association initially did not provide the results. A few weeks prior to the March 2020 hearing, it supplied Ms. Bischoff with vote tallies and a list of unit members who voted. However, it failed to provide the full scope of required materials.
• Missing Documentation: The Association did not provide the “ballots, envelopes, related materials, and sign-in sheets” as mandated by statute for inspection.
• Respondent’s Justification: Mr. Meyer argued that no election actually occurred at the October 18, 2018, meeting because there was no quorum. He further made the admission that the Association had not achieved a quorum for any meeting in the preceding 20 years. He claimed that without an election, there was no obligation to publish ballots.
• Conclusion of Law: The Judge found that the Association violated A.R.S. § 33-1250(C). The statute requires that “Ballots, envelopes and related materials… shall be retained… and made available for unit owner inspection for at least one year.” The partial and delayed provision of records was insufficient to meet this legal requirement.
C. Improper Prohibition of Write-In Ballots
• The Dispute: The November 20, 2019, meeting was cancelled because some ballots contained write-in candidates. The board of directors informed members that write-in ballots were prohibited and would be “thrown out.”
• Petitioner’s Argument: Ms. Bischoff argued that the board could not “choose how to interpret a silent document.” She pointed out that the Bylaws and Articles of Incorporation do not prohibit write-in ballots and that the same board had allowed them in a 2017 election.
• Respondent’s Position: Mr. Meyer acknowledged that the Bylaws were silent on the issue but stated the Association needed to “figure out how to handle” them. A membership meeting to discuss the issue was held on December 30, 2019, but failed to achieve a quorum.
• Conclusion of Law: The Judge determined that the Association violated its own Bylaws. The decision states, “absent any clear language in the A.R.S. or the Bylaws prohibiting write in ballots, Respondent failed to show how the ballots were invalid.” The board’s unilateral prohibition was therefore found to be improper.
IV. Legal Conclusions and Final Order
The Administrative Law Judge upheld the petition on all issues, finding that the Petitioner had successfully proven her case by a preponderance of the evidence.
Final Order:
Based on the foregoing conclusions, IT IS ORDERED that:
1. The Petition filed by Donna M. Bischoff is upheld on all issues.
2. The Petitioner is deemed the prevailing party in the matter.
3. The Respondent must supply the Petitioner with the relevant election documents pursuant to A.R.S. § 33-1250(C) within ten (10) days of the Order.
4. The Respondent must pay the Petitioner’s filing fee of $1,500.00 directly to the Petitioner within thirty (30) days of the Order.
5. No Civil Penalty is found to be appropriate in this matter.
The Order is binding on the parties unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
Study Guide – 20F-H2019033-REL
Study Guide: Bischoff v. Country Hills West Condominium Association, Inc.
This study guide provides a review of the Administrative Law Judge Decision in case number 20F-H2019033-REL, concerning a dispute between a homeowner and a condominium association. It includes a quiz with an answer key, essay questions for deeper analysis, and a glossary of key terms found in the source document.
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Short-Answer Quiz
Instructions: Answer the following questions in 2-3 sentences each, based on the provided source document.
1. Who were the primary parties in the legal dispute, and what were their roles?
2. What specific violations did the Petitioner, Donna M. Bischoff, allege against the Respondent?
3. Why was the 2019 yearly meeting for the Country Hills West Condominium Association repeatedly rescheduled?
4. What was the Respondent’s position on the validity of write-in ballots for the November 20, 2019, election?
5. What information did the Petitioner request from the October 2018 election, and what was the initial response?
6. What is the definition of “quorum” according to the association’s Bylaws, and why was it significant in this case?
7. What is the legal standard of proof the Petitioner was required to meet in this hearing?
8. According to the decision, how did the Respondent violate A.R.S. § 33-1248(B) regarding association meetings?
9. According to the decision, how did the Respondent violate A.R.S. § 33-1250(C) regarding election materials?
10. What were the key components of the final Order issued by the Administrative Law Judge?
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Answer Key
1. The primary parties were Donna M. Bischoff, the Petitioner, and the Country Hills West Condominium Association, Inc., the Respondent. The Petitioner is the homeowner who filed the complaint, and the Respondent is the homeowners association accused of violations.
2. The Petitioner alleged violations of Arizona Revised Statutes (A.R.S.) § 33-1250(C) and § 33-1248(B), as well as Article 3, Section 2 of the association’s Bylaws. These allegations related to the handling of yearly meetings and elections.
3. The 2019 yearly meeting was initially scheduled for November 20, 2019, but was rescheduled three times, ultimately taking place in January 2020. The first cancellation was because some ballots contained write-in candidates, which the board deemed prohibited.
4. The Respondent’s representative, Doug Meyer, testified that members were informed that write-in ballots were not valid for the November 20, 2019, election. He stated that any ballots with write-in candidates would have been thrown out.
5. The Petitioner requested to see the election results from the October 2018 election, specifically wanting to know which units voted. While she was eventually given the voting tallies, the Respondent did not initially provide the requested results.
6. Quorum is defined in Article 4, Section 3 of the Bylaws. It was significant because the Respondent’s president, Mr. Meyer, acknowledged that the association had not achieved a quorum for its meetings in the last 20 years, and thus no election occurred at the October 18, 2018, meeting.
7. The Petitioner had the burden of proof to establish the alleged violations by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that a contention is more probably true than not.
8. The Respondent violated A.R.S. § 33-1248(B) by failing to hold a required yearly meeting within the calendar year of 2019. The evidence showed that the meeting scheduled for 2019 was postponed until January 2020.
9. The Respondent violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with all required election materials from the 2018 election. While vote tallies were eventually provided, the statute requires that ballots, envelopes, and related materials be retained and made available for inspection for at least one year.
10. The Administrative Law Judge’s Order upheld the Petition on all issues, deemed the Petitioner the prevailing party, and required the Respondent to supply the relevant documents within 10 days. The Order also mandated that the Respondent reimburse the Petitioner’s filing fee of $1,500.00 within 30 days.
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Essay Questions
Instructions: The following questions are designed for longer, more analytical responses. Use the information presented in the source document to construct a comprehensive argument for each prompt.
1. Analyze the Respondent’s handling of the write-in ballot issue for the 2019 election. Discuss the legal basis (or lack thereof) for their actions as presented in the hearing, and explain why the Administrative Law Judge ultimately ruled that their prohibition of these ballots was a violation of the Bylaws.
2. Explain the concept of “quorum” as it relates to this case. How did the association’s failure to achieve a quorum for 20 years impact its governance, specifically regarding the 2018 meeting and the Respondent’s obligation to produce election records?
3. Describe in detail the specific violations of the Arizona Revised Statutes (A.R.S.) that the Country Hills West Condominium Association was found to have committed. For each statute (A.R.S. § 33-1248(B) and A.R.S. § 33-1250(C)), detail the legal requirement and explain how the Respondent’s actions failed to meet that standard.
4. Discuss the legal standard of “preponderance of the evidence.” Using testimony and evidence presented by both the Petitioner and the Respondent, explain how the Petitioner successfully met this burden of proof for her allegations.
5. Outline the final Order issued by the Administrative Law Judge. Beyond the simple outcome, explain the significance of each component of the order, including the validation of the petition, the designation of a “prevailing party,” the directive to supply documents, and the financial remedy awarded.
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Glossary of Key Terms
Definition
Administrative Law Judge
An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions and orders. In this case, Antara Nath Rivera.
Arizona Department of Real Estate (Department)
The state agency with which a homeowner or planned community organization can file a petition for a hearing concerning violations of community documents or statutes.
Arizona Revised Statutes (A.R.S.)
The collection of laws enacted by the Arizona state legislature. The specific statutes cited were A.R.S. §§ 33-1250(C) and 33-1248(B).
Bylaws
The rules and regulations that govern the internal operations of an organization, such as a homeowners association. In this case, the Bylaws of Country Hills West Association, Inc. were a key document.
Homeowners Association (HOA)
An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents.
Office of Administrative Hearings
The state agency where petitions filed with the Department of Real Estate are heard before an Administrative Law Judge.
Petitioner
The party who files a petition or brings a legal action against another party. In this case, Donna M. Bischoff.
Preponderance of the evidence
The standard of proof in this civil administrative case. It is met when the evidence presented is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”
Quorum
The minimum number of members of an assembly or society that must be present at any of its meetings to make the proceedings of that meeting valid. The Respondent had not achieved quorum for 20 years.
Respondent
The party against whom a petition is filed or a legal action is brought. In this case, Country Hills West Condominium Association, Inc.
Blog Post – 20F-H2019033-REL
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This source is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between Donna M. Bischoff, the Petitioner, and Country Hills West Condominium Association, Inc., the Respondent. The document details the hearing held on March 10, 2020, where the Petitioner alleged the Condominium Association violated Arizona Revised Statutes (A.R.S.) and the association’s Bylaws. Specifically, the Petitioner claimed violations related to the failure to hold a required yearly meeting in 2019, the failure to provide election materials for inspection, and the improper prohibition of write-in ballots where the Bylaws were silent. The Administrative Law Judge ultimately upheld the Petition on all issues, finding the Respondent in violation, and ordered the Association to provide the requested documents and pay the Petitioner’s $1,500.00 filing fee.
What were the specific legal violations found against the Condominium Association regarding meetings and documents?
How did the lack of clarity in the Bylaws regarding write-in ballots impact the association’s actions?
What was the ultimate outcome of this administrative hearing, including the ordered remedies for the petitioner?
Based on 1 source
Case Participants
Petitioner Side
Donna M Bischoff(petitioner) Appeared on her own behalf
Respondent Side
Doug Meyer(president, director, witness) Country Hills West Condominium Association, Inc. Appeared and testified on behalf of Respondent
Neutral Parties
Antara Nath Rivera(ALJ) OAH
Judy Lowe(commissioner) Arizona Department of Real Estate Decision transmitted electronically to Commissioner
The Petitioner's dispute petition was dismissed because the Petitioner failed to meet the burden of proof that the HOA violated its governing documents regarding the denial of a retroactively submitted view fence modification.
Why this result: Petitioner failed to meet the burden of proof to establish the HOA violated its CC&Rs or Design Guidelines. Specifically, the Petitioner did not establish he rightfully sought approval prior to installing the fence.
Key Issues & Findings
HOA's denial of Petitioner's glass view fence modification
Petitioner alleged the HOA violated community documents by denying approval for a glass view fence installed without prior approval. The ALJ found Petitioner failed to establish the HOA violated its documents, as Petitioner did not follow required procedures for seeking approval.
Orders: Petitioner Will Schreiber’s Petition was dismissed.
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
Video Overview
Audio Overview
Decision Documents
20F-H2019003-REL-RHG Decision – 769789.pdf
Uploaded 2025-10-09T03:34:30 (42.2 KB)
20F-H2019003-REL-RHG Decision – 775433.pdf
Uploaded 2025-10-09T03:34:30 (123.4 KB)
Briefing Doc – 20F-H2019003-REL-RHG
Briefing Document: Schreiber v. Cimarron Hills HOA
Executive Summary
This document synthesizes the legal proceedings and outcome of the dispute between homeowner Will Schreiber (Petitioner) and the Cimarron Hills at McDowell Mountain Homeowners Association (Respondent) concerning an unapproved glass fence. The case, adjudicated by the Arizona Office of Administrative Hearings, centered on Mr. Schreiber’s retroactive application for a glass view fence he installed without prior permission, which replaced a wrought iron fence.
The Homeowners Association (HOA) denied the application, citing a lack of consistency with community design standards, as well as significant maintenance and liability concerns stipulated in the governing documents. The Petitioner argued the denial was unreasonable, asserting that a glass fence is visually similar to having no fence (an approved option), that the HOA failed to provide a valid reason for denial, and that safety concerns were unfounded.
The Administrative Law Judge (ALJ) ultimately dismissed Mr. Schreiber’s petition. The final decision concluded that the Petitioner failed to meet the burden of proof showing the HOA had violated its own rules. The ruling affirmed that the HOA’s denial was reasonable because the Petitioner did not follow the required procedure of seeking approval before installation, as mandated by the community’s Design Guidelines. The decision underscored the HOA’s right to enforce uniformity and manage its maintenance and liability responsibilities as defined in its Covenants, Conditions, and Restrictions (CC&Rs).
Case Identification and Participants
Detail
Information
Case Name
Will Schreiber, Petitioner, vs. Cimarron Hills at McDowell Mountain Homeowners Association, Respondent
Case Number
20F-H2019003-REL-RHG
Tribunal
Office of Administrative Hearings (Arizona)
Administrative Law Judge
Antara Nath Rivera
Petitioner
Will Schreiber
Petitioner’s Counsel
Aaron M. Green, Esq.
Respondent
Cimarron Hills at McDowell Mountain Homeowners Association (a subdivision of McDowell Mountain Ranch Homeowners Association)
Respondent’s Counsel
Nick Nogami, Esq. (at hearing); Mark K. Sahl, Esq. (on record)
Property Address
11551 East Caribbean Lane, Scottsdale, Arizona, 85255
Procedural History and Timeline
1. November 2017: Petitioner submitted an architectural form for backyard work, which was approved by the HOA’s Design Review Committee (DRC). This submission did not mention any changes to fencing.
2. January 2019: During a violation tour, the HOA discovered that Petitioner had replaced the pre-existing wrought iron view fencing with an unapproved glass fence.
3. January 24, 2019: After being contacted by the HOA, Petitioner submitted a second variance request seeking retroactive approval for the installed glass fence.
4. March 5, 2019: The HOA sent a letter to Petitioner requesting that the fence be returned to its original wrought iron condition.
5. May 10, 2019: The HOA officially notified Petitioner that his appeal was denied because the application was not filed in a timely manner (i.e., prior to installation).
6. July 2, 2019: Petitioner filed a Homeowners Association Dispute Process Petition with the Arizona Department of Real Estate, alleging violations of community documents.
7. August 9, 2019: The HOA filed its Answer, denying all claims, and a Motion to Dismiss.
8. October 2, 2019: The Administrative Law Judge (ALJ) granted the HOA’s Motion to Dismiss.
9. December 10, 2019: The Department of Real Estate issued a Notice of Rehearing.
10. January 30, 2020: A rehearing was held before the Office of Administrative Hearings.
11. February 4, 2020: The HOA’s counsel submitted a Posthearing Memorandum without leave from the tribunal.
12. February 14, 2020: The ALJ issued an order reopening the record solely to allow the Petitioner an opportunity to respond to the HOA’s unauthorized filing by February 24, 2020.
13. March 16, 2020: The ALJ issued the final decision, ordering that the Petitioner’s petition be dismissed.
Analysis of Arguments
Petitioner’s Position (Will Schreiber)
The Petitioner’s case rested on the argument that the HOA’s denial of his glass fence was arbitrary and unreasonable.
• Lack of Justification: Petitioner claimed the HOA’s Design Review Committee (DRC) met with him but failed to provide any verbal or written reasons for the initial disapproval.
• Aesthetic and Functional Equivalence: He argued a glass fence is “just as invisible” as having no fence at all, an option permitted by the HOA. He contended that since his neighbor did not have a wrought iron fence, denying his glass fence on grounds of consistency was illogical.
• Safety and Maintenance: Petitioner asserted that the safety glass used was comparable to that of the Grand Canyon Skywalk and had been inspected and approved by a Scottsdale City Inspector. He argued the HOA’s concerns about safety, fire barriers, and continuity were manufactured “excuses.” He also offered to waive the HOA’s maintenance responsibility for the fence.
• Procedural Failure: The core of the petition was the allegation that the HOA violated its own community documents, specifically “Design Guidelines HH Walls/View Fences and CC&R’s Article 12.”
Respondent’s Position (Cimarron Hills HOA)
The HOA’s defense, presented primarily through the testimony of Whitney Bostic, focused on procedural compliance, community uniformity, and non-negotiable maintenance responsibilities.
• Violation of Process: The HOA established that the Petitioner installed the glass fence prior to seeking approval, in direct violation of the Design Guidelines which require submission of detailed plans for any view fence modifications. His approved 2017 plans made no mention of fencing.
• Lack of Consistency: Ms. Bostic testified that out of 656 homes in the Cimarron Hills subdivision and 3,800 homes in the master McDowell Mountain Ranch association, none had a glass fence. The established design standard allows only for a wrought iron fence or no fence at all to maintain community conformity.
• Maintenance and Liability: The HOA argued that under Article 12.3 of the CC&Rs, it is legally responsible for maintaining the exterior half of all boundary view fences and the five-foot easement from the boundary wall. This responsibility cannot be waived by a homeowner. A glass fence introduces unique maintenance concerns and liability risks, such as shards of glass falling into an area of HOA responsibility.
• Multi-Level Review: The decision to deny the request was made after consideration by both the Cimarron Hills DRC and the master association (MMRHA), which weighed factors of consistency, responsibility, and maintenance before issuing a denial.
Governing Documents Cited
The decision in this case was based on the interpretation of several key sections of the community’s governing documents.
• CC&Rs Article 12.3 (Boundary Walls and Association Responsibility): This article explicitly states that the Association “shall be responsible for the repair and maintenance of the side of the Boundary Wall which faces the Area of Association Responsibility.” This formed the basis of the HOA’s argument regarding non-waivable liability and maintenance obligations.
• Design Guidelines Section HH (View Fencing): This section mandates that “The Owner shall submit for approval from the DRC including detailed drawings of proposed changes… for view fence modifications.” The Petitioner’s failure to do this prior to installation was a central fact in the case. It also specifies the approved paint color for fences, “MMR Brown Fence.”
• Design Guidelines Section E (General Principles): This section outlines the DRC’s goal to “maintain consistency of the community and of its decisions.” It notes that variances may be granted but “shall remain consistent with the architectural and neighborhood characteristics.” This supported the HOA’s argument against introducing a unique fence type.
• Design Guidelines Section GG (View Decks): While pertaining to decks, this section was cited to show the level of detail required in applications to the DRC, including materials, dimensions, and impact on views, underscoring the formal process the Petitioner bypassed.
Administrative Law Judge’s Decision and Rationale
The ALJ, Antara Nath Rivera, dismissed Will Schreiber’s petition, finding in favor of the Cimarron Hills HOA.
• Burden of Proof: The decision established that the Petitioner bore the burden of proving, by a preponderance of the evidence, that the HOA violated Article 12.3 of its CC&Rs.
• Failure to Follow Procedure: The judge concluded that the Petitioner “failed to establish by a preponderance of the evidence that he rightfully sought approval to change his existing fence, pursuant to Section HH of the Design Guidelines.” The key issue was not the aesthetics of the fence, but the Petitioner’s failure to abide by the required approval process before installation.
• Reasonableness of Denial: The ALJ found that the “Respondent was reasonable in its denial” and “did not violate any rules or regulations.” The evidence demonstrated that the HOA’s decision was based on established principles of uniformity, consistency, and its obligations under the CC&Rs.
• Final Order: The petition was formally dismissed. The order noted that as a decision from a rehearing, it is binding on the parties. Any appeal must be filed with the superior court within thirty-five days of the order’s service date.
Study Guide – 20F-H2019003-REL-RHG
Study Guide: Schreiber v. Cimarron Hills HOA
This guide provides a detailed review of the administrative case between Will Schreiber and the Cimarron Hills at McDowell Mountain Homeowners Association, based on the provided legal documents. It is designed to test and reinforce understanding of the case’s facts, legal arguments, and procedural history.
Short-Answer Quiz
Answer each of the following questions in two to three sentences, drawing exclusively from the provided source documents.
1. Who were the primary parties involved in this case, and what were their respective roles?
2. What specific action did the Petitioner, Will Schreiber, take that initiated the dispute with the Homeowners Association?
3. According to the Respondent, what were the primary reasons for denying the Petitioner’s request for the glass fence?
4. What was the Petitioner’s core argument regarding the fairness of the Respondent’s denial, particularly in relation to his neighbor?
5. What was the legal standard of proof required for the Petitioner to win his case, and did he meet it?
6. Identify two specific governing documents that were central to the Respondent’s defense and the final ruling.
7. Who was Whitney Bostic, and what key information did her testimony provide during the rehearing?
8. What procedural event occurred on or about February 4, 2020, that prompted the Administrative Law Judge to issue the “Order Holding Record Open” on February 14, 2020?
9. According to the CC&Rs, who is responsible for maintaining the “Boundary Wall” that separates a lot from an “Area of Association Responsibility”?
10. What was the final outcome of the administrative rehearing held on January 30, 2020?
Answer Key
1. The primary parties were Will Schreiber, the Petitioner and homeowner, and the Cimarron Hills at McDowell Mountain Homeowners Association, the Respondent. Mr. Schreiber filed a petition against the HOA, alleging a violation of community documents after they denied his request for a fence modification.
2. Mr. Schreiber replaced his preexisting wrought iron view fencing with glass fencing without first receiving approval from the HOA’s Design Review Committee (DRC). He then submitted a variance request on January 24, 2019, seeking retroactive approval for the already-installed fence.
3. The Respondent denied the request based on several factors, including the need for design consistency across the community’s 656 homes, as no other home had a glass fence. They also cited maintenance concerns and potential liability, as the HOA is responsible for the exterior half of view fences and a five-foot easement from the boundary wall.
4. The Petitioner argued that the denial was unreasonable because his neighbor was allowed to have no fence at all. He contended that a glass fence was “just as invisible” as no fence and that the concept was essentially the same.
5. The Petitioner bore the burden of proof to establish his case by a “preponderance of the evidence,” which means convincing the judge that his contention was more probably true than not. The Administrative Law Judge concluded that the Petitioner failed to meet this burden.
6. The two central documents were the Declaration of Covenants, Conditions, Restrictions and Easements for Cimarron Hills (CC&Rs) and the Cimarron Hills Design Guidelines For Community Living (Design Guidelines). The Respondent specifically cited Sections E (General Principles), GG (View Decks), and HH (Walls/View Fences) of the Design Guidelines.
7. Whitney Bostic testified on behalf of the Respondent HOA. She explained that the glass fence was unapproved, inconsistent with the 656 homes in the community, and posed maintenance and liability concerns for the HOA.
8. Counsel for the Respondent submitted a Posthearing Memorandum and Proposed Findings of Fact and Conclusions of Law without having been granted permission (leave) by the tribunal. Because the Petitioner did not have an opportunity to respond, the judge reopened the record to allow him to do so by February 24, 2020.
9. According to Article 12.3 of the CC&Rs, the resident is responsible for their side of the wall, but the Association is responsible for the repair and maintenance of the side of the Boundary Wall which faces the Area of Association Responsibility.
10. The Administrative Law Judge ordered that Petitioner Will Schreiber’s Petition be dismissed. The judge found that the Respondent HOA’s denial of the glass fence was reasonable and that it did not violate any of its rules or regulations.
Essay Questions
The following questions are designed for longer, more analytical responses. Formulate an argument using only the evidence and facts presented in the source documents.
1. Analyze the procedural timeline of the case from the initial filing of the petition on July 2, 2019, to the final decision on March 16, 2020. Discuss the significance of the initial dismissal, the subsequent rehearing, and the order to reopen the record.
2. Examine the concept of “consistency” as described in Section E of the Design Guidelines. How did this principle form the foundation of the Respondent’s case, and why was it a more compelling argument than the Petitioner’s claims about aesthetics and safety?
3. The Petitioner argued that since his neighbor was permitted to have no fence, his “invisible” glass fence should also be permitted. Deconstruct this argument and explain why it ultimately failed to persuade the Administrative Law Judge, citing the Respondent’s counterarguments regarding maintenance and responsibility.
4. Discuss the role of the governing community documents (the CC&Rs and Design Guidelines) in this dispute. Explain how specific articles, such as CC&R Article 12.3 and Design Guideline Section HH, were applied to the facts of the case to reach a final decision.
5. Define “preponderance of the evidence” as described in the legal decision. Detail the evidence presented by both the Petitioner and the Respondent at the rehearing and evaluate why the Judge concluded that the Petitioner failed to meet this evidentiary standard.
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The presiding judge (Antara Nath Rivera) at the Office of Administrative Hearings who heard the evidence and issued the final decision.
Answer
The formal written response filed by the Respondent on August 9, 2019, denying all complaint items in the Petition.
Areas of Association Responsibility
Areas that the Homeowners Association is responsible for maintaining, as defined in the CC&Rs. This includes the exterior side of boundary walls and a five-foot easement.
An acronym for the Declaration of Covenants, Conditions, Restrictions and Easements for Cimarron Hills, a primary governing document for the community.
Design Guidelines
A document titled Cimarron Hills Design Guidelines For Community Living that supplements the CC&Rs and provides specific rules on community aesthetics, including fences.
Design Review Committee (DRC)
A committee within the HOA responsible for reviewing and approving or denying residents’ proposed architectural and landscape modifications.
Homeowners Association Dispute Process Petition
The formal document filed by Will Schreiber with the Arizona Department of Real Estate on July 2, 2019, to initiate the legal dispute.
McDowell Mountain Ranch Homeowners Association (MMRHA)
The master association of which the Cimarron Hills HOA is a subdivision. The MMRHA also considered and denied the Petitioner’s request.
Petitioner
The party who filed the petition initiating the legal action; in this case, the homeowner, Will Schreiber.
Preponderance of the evidence
The standard of proof required in the hearing. It is defined as evidence that is more convincing and has superior weight, inclining an impartial mind to one side of the issue rather than the other.
Respondent
The party against whom the petition was filed; in this case, the Cimarron Hills at McDowell Mountain Homeowners Association.
Retroactive Approval
Approval sought for a modification or construction that has already been completed without prior authorization.
Variance
A formal exception to the standard Design Guidelines that the DRC may grant on a case-by-case basis.
Blog Post – 20F-H2019003-REL-RHG
The Glass Fence Standoff: 4 Critical Lessons from a Homeowner’s Losing Battle with His HOA
Introduction: The Dream Project and the Unseen Rules
Will Schreiber had a vision for his Scottsdale, Arizona home: a sleek, modern property with an uninterrupted backyard view. To preserve that stunning vista, he installed an elegant glass fence—a choice that seemed perfect for the landscape. His neighbors didn’t complain; in fact, there’s no evidence the fence bothered anyone. But his Homeowners Association (HOA) denied the project, triggering a legal dispute that went before an administrative law judge. Mr. Schreiber ultimately lost.
The conflict wasn’t driven by neighborhood animosity, but by the impersonal application of community documents. This case offers a masterclass in the often counter-intuitive world of HOA governance. The reasons he lost reveal surprising and invaluable lessons for any homeowner considering a modification to their property.
1. The most critical mistake wasn’t the fence—it was the timing.
The core reason the homeowner lost his case had less to do with the aesthetics of glass versus wrought iron and everything to do with procedural failure. He installed the fence before getting formal approval from the HOA.
The timeline of events was fatal to his argument. In November 2017, the HOA approved Mr. Schreiber’s plan for backyard improvements, but this plan made no mention of fencing. At some point after, he installed the unapproved glass fence. It wasn’t until a routine violation tour in January 2019 that the HOA discovered the new fence. Only after being caught, on January 24, 2019, did the homeowner submit a request for retroactive approval.
In the end, the judge’s decision hinged on this sequence. The key question wasn’t whether a glass fence was a good idea, but whether the HOA’s denial was reasonable “because Petitioner failed to abide by the regulations to get approval for the glass fence prior to installing it.” In any dispute with an HOA, following the established process is paramount. Once you break the rules of that process, the merits of your project often become irrelevant.
2. A logical argument can lose to a written rule.
The homeowner presented a seemingly logical and compelling argument. He contended that his neighbor didn’t have a fence at all, and a glass fence was conceptually the same thing. In his words:
A glass fence was “just as invisible” as not having a fence. In essence, both were the same concept.
To add weight to his point, he made a powerful real-world comparison, arguing the safety glass he used was similar to that of the railing of the Grand Canyon Skywalk tourist attraction.
This “common sense” approach, however, failed to persuade the judge. The HOA’s decision wasn’t based on a subjective interpretation of “invisibility” or a comparison to national landmarks. It was based on the binding community documents. The Design Guidelines were written to promote uniformity and consistency. According to the HOA, the established rules were clear: a homeowner could have a wrought iron fence or no fence at all. A glass fence was not an approved option. The lesson here is stark: the governing documents create the binding reality for every member of the community. A personal, logical argument is not a valid defense against a clearly written rule you have contractually agreed to follow.
3. The HOA’s biggest concern wasn’t curb appeal; it was risk.
While the dispute appeared to be about aesthetics, the HOA’s defense focused on much more practical and significant concerns: consistency, maintenance, and liability. These arguments reveal the often-unseen function of an HOA, which is to manage shared risk for the entire community.
The HOA presented several key points:
• Consistency: Out of 3,800 homes in the master community and 656 in the sub-community, not a single one had a glass fence. Approving this one would set a precedent that could undermine the community’s uniform design.
• Maintenance: The community’s CC&Rs (Article 12.3) explicitly stated the Association was responsible for maintaining “the side of the Boundary Wall which faces the Area of Association Responsibility.” This meant the HOA would be financially and logistically on the hook for repairing and maintaining an unfamiliar and potentially costly material.
• Safety & Liability: The HOA raised a critical safety issue. If the glass fence were to break, “large amount of glass shards would fall onto an area of Respondent’s responsibility, causing additional liability for Respondent.”
Sensing the maintenance issue was a key obstacle, Mr. Schreiber made a reasonable offer: he was willing to waive the HOA’s responsibility to maintain the glass fence. However, this proactive solution came too late. Because he had already violated the approval process, his concession was not enough to overcome the HOA’s other concerns about precedent and liability, which remained firmly grounded in the community’s governing documents.
4. In a dispute, you are the one who has to prove the HOA is wrong.
When a homeowner takes their HOA to court, the legal scales are not perfectly balanced from the start. The legal decision in this case clearly states the principle: “Petitioner bears the burden of proof to establish that Respondent violated Article 12.3 of its CC&Rs.”
In simple terms, “burden of proof” meant it was Mr. Schreiber’s job to convince the judge with a “preponderance of the evidence”—meaning it was more likely true than not—that the HOA had broken its own rules when it denied his request. It was not the HOA’s job to prove it was right; it was his job to prove they were wrong.
The judge ultimately found that the homeowner “failed to establish by a preponderance of the evidence that he rightfully sought approval.” The conclusion was that the “Respondent was reasonable in its denial.” It is not enough to feel you have been wronged; in a legal setting, you must be able to demonstrate with convincing evidence that the organization violated its own governing documents.
Conclusion: The Unwritten Lessons of Community Living
HOA rules can be a source of frustration, but this case demonstrates that they form a complex web of process, liability, and shared responsibility that exists for reasons beyond simple aesthetics. The homeowner’s dream of a glass fence was shattered not by a neighbor’s complaint, but by a series of procedural missteps and a misunderstanding of the contract he was bound by.
This case wasn’t just about a fence; it was about the power of a contract you agree to when you buy a home. How well do you really know your own community’s rulebook?
Case Participants
Petitioner Side
Will Schreiber(petitioner) Complainant
Aaron M. Green(petitioner attorney) Law Office of Aaron Green, P.C.
Respondent Side
Nick Nogami(respondent attorney) Represented Respondent at hearing
Mark K. Sahl(respondent attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
Whitney Bostic(witness) Testified for Respondent
Neutral Parties
Antara Nath Rivera(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
Other Participants
c. serrano(clerk) Transmitting agent for Order
LDettorre(ADRE staff) Arizona Department of Real Estate Recipient of transmission
AHansen(ADRE staff) Arizona Department of Real Estate Recipient of transmission
djones(ADRE staff) Arizona Department of Real Estate Recipient of transmission
DGardner(ADRE staff) Arizona Department of Real Estate Recipient of transmission
ncano(ADRE staff) Arizona Department of Real Estate Recipient of transmission
