The final decision affirmed the denial of Issues 1, 2, and 3, and the granting of Issue 4. The Association was found to have violated ARIZ. REV. STAT. § 33-1805 for failing to provide complete records in a timely manner, resulting in the reimbursement of 1/4 of the filing fee.
Why this result: Petitioners failed to sustain the burden of proof regarding alleged violations of CC&Rs Section 5, Architectural Design Guidelines Section 4.0, and A.R.S. § 33-1804(A), (D), and (E).
Key Issues & Findings
Alleged violation of CC&Rs Section 5
Petitioners alleged that the HOA violated the Covenants, Conditions and Restrictions (CC&Rs), Section 5, by allowing construction on Lot 7 without prior ARC approval of required documents.
Orders: Petition denied.
Filing fee: $125.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
CC&Rs Section 5
Alleged violation of Community Agricultural Design Guidelines Section 4.0
Petitioners alleged that the HOA violated the Architectural Design Guidelines, Section 4.0, by failing to require the required $5,000.00 Construction Compliance Deposit for Lot 7.
Orders: Petition denied.
Filing fee: $125.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
Architectural Design Guidelines Section 4.0
ARIZ. REV. STAT. § 10-3821
Alleged violation of A.R.S. § 33-1804(A), (D), and (E)
Petitioners alleged that the Board conducted an unnoticed closed meeting in violation of Arizona open meeting statutes.
Orders: Petition denied.
Filing fee: $125.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 33-1804(A)
ARIZ. REV. STAT. § 33-1804(D)
ARIZ. REV. STAT. § 33-1804(E)
ARIZ. REV. STAT § 10-3821
Alleged violation of A.R.S. § 33-1805
Petitioners alleged that the HOA failed to timely and completely fulfill a records request submitted on June 04, 2020, specifically by failing to provide missing email attachments.
Orders: Respondent must reimburse 1/4 of Petitioners' filing fee ($125.00). Respondent must henceforth comply with A.R.S. § 33-1805 and provide the missing email attachments within 10-business days.
Filing fee: $125.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
ARIZ. REV. STAT. § 33-1805
Analytics Highlights
Topics: HOA Statute Violation, Records Request, Filing Fee Refund, Architectural Review, Open Meetings
Additional Citations:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199
ARIZ. REV. STAT. § 32-2199.01
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 33-1804(A)
ARIZ. REV. STAT. § 33-1804(D)
ARIZ. REV. STAT. § 33-1804(E)
ARIZ. REV. STAT. § 33-1805
ARIZ. REV. STAT. § 10-3821
CC&Rs Section 5
Architectural Design Guidelines Section 4.0
Video Overview
Audio Overview
Decision Documents
21F-H2120002-REL Decision – 866263.pdf
Uploaded 2025-12-09T10:06:10 (268.5 KB)
21F-H2120002-REL Decision – 902726.pdf
Uploaded 2025-10-09T03:35:42 (239.9 KB)
Briefing Doc – 21F-H2120002-REL
Briefing Document: Burnes v. Saguaro Crest Homeowners Association, Final Decision
Executive Summary
This document synthesizes the Final Administrative Law Judge Decision in the case of Clifford and Maria Burnes (“Petitioners”) versus the Saguaro Crest Homeowners Association (“Respondent”), case number 21F-H2120002-REL-RHG. The dispute centered on a four-issue petition alleging violations by the Association related to new construction on a neighboring property (Lot 7), an unnoticed Board meeting, and the fulfillment of a records request.
Following an initial hearing and a subsequent rehearing, the Administrative Law Judge (ALJ) largely affirmed the original decision. The Petitioners failed to meet their burden of proof on three of the four issues, with the judge finding no violations by the Association regarding architectural controls, the waiver of a construction deposit, or the conduct of a Board meeting.
However, the Petitioners successfully proved that the Association violated Arizona Revised Statute § 33-1805 by failing to timely and completely fulfill a comprehensive records request. The final order requires the Association to reimburse the Petitioners for a portion of their filing fee ($500), comply with the records statute moving forward, and provide the specific missing documents (email attachments) from the original request. The rehearing was granted on the basis of “newly discovered evidence,” but the Petitioners conceded during the proceeding that they possessed no new evidence, leading the ALJ to rely solely on the record from the first hearing.
I. Background and Procedural History
The case involves a dispute between property owners Clifford and Maria Burnes and their homeowners’ association, Saguaro Crest, located in Tucson, Arizona. The Association is governed by Covenants, Conditions, and Restrictions (CC&Rs) recorded in 2006 and Architectural Design Guidelines adopted in 2018.
Procedural Timeline
July 17, 2020
Petitioners file a 4-issue petition with the Arizona Department of Real Estate.
August 11, 2020
Respondent (HOA) denies all claims in its answer.
Dec 11, 2020 & Mar 1-2, 2021
An evidentiary hearing is held before the Office of Administrative Hearings (OAH).
March 22, 2021
The Administrative Law Judge (ALJ) issues the initial decision.
April 28, 2021
Petitioners file a dispute rehearing request, alleging newly discovered evidence.
May 21, 2021
The Commissioner of the Department of Real Estate grants the rehearing request.
July 20, 2021
The rehearing is held. Petitioners concede they have no “new” evidence.
August 09, 2021
The Final Administrative Law Judge Decision is issued, affirming the initial ruling.
Key Parties
Name / Entity
Clifford & Maria Burnes
Petitioners; owners of Lot 6.
Cynthia F. Burnes, Esq.
Counsel for Petitioners.
Saguaro Crest HOA, Inc.
Respondent.
John Crotty, Esq.
Counsel for Respondent.
Norm Burnes
Petitioner; appointed to the Architectural Review Committee (ARC) in 2017.
Raul & Ramona Martinez
Owners of Lot 7, the property under construction.
Jenna Clark
Administrative Law Judge (ALJ).
II. Analysis of Allegations and Findings
The petition presented four distinct issues for adjudication. The Petitioners bore the burden of proving each violation by a preponderance of the evidence.
Issue 1: Alleged Violation of CC&Rs Section 5 (Architectural Control)
• Petitioners’ Allegation: The Association improperly allowed construction on Lot 7 to proceed without required documents being submitted to the Architectural Review Committee (ARC) for approval.
• Factual Record:
◦ The ARC, which included Petitioner Norm Burnes, unanimously approved construction plans for Lot 7 on January 3, 2018.
◦ Construction began sometime in 2018. Pima County approved the plans on May 4, 2018.
◦ On April 14, 2020, Petitioner Burnes sent a formal letter of concern to the Board, stating the placement of the home on Lot 7 was not per the approved plan and had destroyed their view and privacy. The letter included the following statement:
• Conclusion of Law:No violation found. The ALJ determined that while the construction on Lot 7 was not per the plans the ARC approved on January 3, 2018, no subsequent or modified plans were ever submitted to the ARC for review. The decision states, “The ARC cannot approve or deny proposed plans unless they are submitted for review.” Furthermore, the record shows the construction complies with the local government’s building authority.
• Petitioners’ Allegation: The Association allowed construction on Lot 7 without collecting the required $5,000.00 Construction Compliance Deposit.
• Factual Record:
◦ On May 3, 2020, the Board of Directors decided to honor a Construction Compliance Deposit waiver that had been previously granted to the Martinez family.
◦ This discretionary waiver was reportedly granted during an economic downturn to incentivize property purchases.
◦ Critically, the Association “does not possess a corporate record that any such Construction Compliance Deposit Waiver was previously granted to the Martinez family.”
• Conclusion of Law:No violation found. The ALJ concluded it was “clear that Lot 7 was granted a construction compliance deposit waiver.” The lack of a documented record was noted, but the inquiry was deemed moot as it was not a noticed issue in the petition.
Issue 3: Alleged Violation of A.R.S. § 33-1804 (Unnoticed Meeting)
• Petitioners’ Allegation: The Board of Directors conducted an unnoticed meeting on or about May 20, 2020, to consider matters relevant to Petitioner Norm Burnes.
• Factual Record:
◦ On April 18, 2020, Petitioner requested an urgent meeting with the Board, which was held the next day.
◦ On May 20, 2020, the Board acted with unanimous consent (obtained via individual signatures) to restrict Petitioner Burnes’s participation as an ARC member “regarding all issued related to the construction of Lot 7.”
◦ The Board’s notes state: “[T]he Board of Directors hereby unanimously agree that [Petitioner] be removed as an ARC Member for all ARC related matters concerning Lot 7.”
• Conclusion of Law:No violation found. The judge ruled that the Board’s failure to notice the April 19 meeting was excused as an exception because the Petitioner himself had requested it on an urgent basis. Regarding the May 20 action, the record shows Mr. Burnes was not removed from the ARC entirely, but only recused from matters concerning the Lot 7 dispute in which he had a direct conflict of interest.
Issue 4: Alleged Violation of A.R.S. § 33-1805 (Records Request)
• Petitioners’ Allegation: The Association failed to properly fulfill a records request.
• Factual Record:
◦ On June 4, 2020, Petitioners submitted a comprehensive, 17-point records request and demanded fulfillment within the statutory 10-day period.
◦ On June 16, 2020, the Association made 342 pages of documents available for in-person review but prohibited Petitioners from using their own scanning equipment.
◦ The statutory deadline for compliance was June 18, 2020.
◦ On June 24, 2020, after Petitioners paid a $51.30 fee, the Association provided copies of the documents.
◦ Later that day, Petitioners notified the Association that the document package was incomplete, as “attachments for some emails are not included.”
• Conclusion of Law:Violation established. The ALJ found that the Association failed to comply with the statute. The documents were made available for review within the 10-day window, but the copies were not provided until June 24, after the deadline. More importantly, the copies provided were incomplete. The judge rejected the Association’s argument that a clarification from the Petitioner reset the statutory clock.
III. Final Order and Directives
The Final Administrative Law Judge Decision, issued after the rehearing, affirmed the conclusions of the initial March 22, 2021 decision.
• Petition Status: The petition was granted in part (on Issue 4) and denied in part (on Issues 1, 2, and 3).
• Financial Reimbursement: The Respondent (Saguaro Crest HOA) is ordered to reimburse the Petitioners for one-quarter of their filing fee, amounting to $500.00.
• Statutory Compliance: The Respondent is ordered to henceforth comply with the requirements of A.R.S. § 33-1805 regarding records requests.
• Document Production: The Respondent is ordered to provide the Petitioners with the missing email attachments related to the June 4, 2020 records request within 10 business days of the final order’s effective date.
Study Guide – 21F-H2120002-REL
Study Guide: Burnes v. Saguaro Crest Homeowners Association, Inc.
This study guide provides a detailed review of the Final Administrative Law Judge Decision in the case of Clifford and Maria Burnes versus the Saguaro Crest Homeowners Association, Inc. (No. 21F-H2120002-REL-RHG). The guide includes a short-answer quiz with an answer key, a set of essay questions for deeper analysis, and a comprehensive glossary of key terms used in the legal proceedings.
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 sentences based on the information provided in the case document.
1. Who are the Petitioners and the Respondent in this case, and what is their fundamental relationship?
2. List the four distinct issues the Petitioners alleged against the Respondent in their initial petition.
3. On what grounds did the Petitioners request and receive a rehearing after the initial decision was issued on March 22, 2021?
4. What was the outcome of the Petitioners’ attempt to present new witnesses and exhibits during the rehearing on July 20, 2021?
5. Why did the Administrative Law Judge conclude that the Respondent had not violated Section 5 of the CC&Rs regarding the construction on Lot 7?
6. Explain the controversy surrounding the $5,000 Construction Compliance Deposit and the court’s ultimate finding on the matter.
7. What action did the Board of Directors take against Petitioner Norm Burnes on May 20, 2020, and why was this action not considered a violation of A.R.S. § 33-1804?
8. Which of the four allegations was ultimately successful for the Petitioners, and what specific failures by the Respondent led to this finding?
9. What were the four key orders issued by the Administrative Law Judge in the Final Order?
10. What was Petitioner Norm Burnes’s official role within the Saguaro Crest community, and how did this position create a conflict of interest in the dispute?
——————————————————————————–
Quiz Answer Key
1. The Petitioners are Clifford and Maria Burnes, who are property owners in the Saguaro Crest subdivision and members of the homeowners’ association. The Respondent is the Saguaro Crest Homeowners Association, Inc. (HOA), which is the governing body for the subdivision.
2. The four issues were: (1) The HOA allowed construction on Lot 7 without required ARC document submission in violation of CC&Rs Section 5; (2) The HOA allowed construction without a required Construction Compliance Deposit; (3) The Board conducted an unnoticed meeting in violation of A.R.S. § 33-1804; (4) The HOA failed to fulfill a records request in violation of A.R.S. § 33-1805.
3. The Petitioners requested a rehearing on the grounds of having “Newly discovered material evidence that could not with reasonable diligence have been discovered and produced at the original hearing.” They also alleged that the original decision was “arbitrary, capricious, or an abuse of discretion.”
4. At the rehearing, the Petitioners conceded they possessed no “newly discovered” evidence, but rather evidence they had strategically chosen not to present previously. Because they did not provide a satisfactory offer of proof for new evidence, they were precluded from recalling witnesses or offering additional exhibits.
5. The Judge found that while the construction on Lot 7 was not per the plans approved by the ARC on January 3, 2018, no additional plans had been submitted for the ARC’s consideration. The Judge reasoned that the ARC cannot approve or deny plans that are not submitted, and the build complied with the local government’s building authority.
6. The Architectural Design Guidelines required a $5,000 deposit, but the owners of Lot 7 had been granted a waiver. Although the HOA did not possess a corporate record of the waiver, the Board voted to honor it. The court found no violation because the waiver had been granted, and the lack of documentation was not the specific issue being litigated.
7. On May 20, 2020, the Board held an unnoticed meeting and, via unanimous consent, restricted Petitioner Burnes’s participation as an ARC member for all matters related to Lot 7. This was not a violation because the failure to notice was excused as an exception, and the Board only removed him from matters concerning Lot 7, not from the ARC entirely.
8. Issue #4, the records request violation, was successful for the Petitioners. The Respondent failed to provide copies of the requested documents within the statutory 10-day deadline, providing them on June 24, 2020, when the deadline was June 18, 2020. Furthermore, the documents provided were incomplete, as they were missing email attachments.
9. The Final Order affirmed the previous decision, ordered the Respondent to reimburse the Petitioners for 1/4 of their filing fee ($500.00), ordered the Respondent to comply with A.R.S. § 33-1805 going forward, and ordered the Respondent to provide the missing email attachments within 10 business days.
10. Petitioner Norm Burnes was a member of the Association’s Architectural Review Committee (ARC). This created a conflict of interest because he was part of the committee that initially approved the Lot 7 construction plans, but he later raised formal complaints against that same construction project due to its impact on his own property (Lot 6).
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for a more in-depth analysis of the case. No answers are provided.
1. Analyze the concept of “burden of proof” by a “preponderance of the evidence” as it applies to this case. How did the Petitioners succeed in meeting this burden for Issue #4 but fail for the other three issues?
2. Discuss the powers and limitations of a Homeowners’ Association Board and its Architectural Review Committee as illustrated in this case, specifically concerning construction approval, enforcement authority, and the management of member conflicts of interest.
3. The Petitioners’ request for a rehearing was based on “newly discovered material evidence.” Explain why this request ultimately failed to change the outcome and discuss the strategic decisions made by the Petitioners regarding the presentation of evidence.
4. Examine the conflict between a homeowner’s desire for privacy and unobstructed views (as expressed by the Petitioners) and the rights of a neighboring property owner to develop their land. How did the community’s governing documents and the final legal decision address this conflict?
5. Trace the timeline of the records request dispute (Issue #4). What were the specific actions and inactions by the Respondent that led to a finding of a statutory violation, and what does this illustrate about an HOA’s administrative and statutory responsibilities to its members?
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions. In this case, the ALJ was Jenna Clark.
Architectural Review Committee (ARC)
A committee charged by an HOA’s CC&Rs with implementing architectural guidelines to maintain aesthetic standards and preserve property values. Petitioner Norm Burnes was a member of this committee.
Arizona Department of Real Estate (Department)
The state agency authorized to receive and decide petitions for hearings from members of homeowners’ associations in Arizona.
Arizona Revised Statute (ARIZ. REV. STAT. or A.R.S.)
The codified laws of the State of Arizona. Specific statutes cited include § 33-1804 (regarding open meetings) and § 33-1805 (regarding association records).
Burden of Proof
The obligation on a party in a legal case to prove their allegations. In this proceeding, the Petitioners bore the burden of proving their claims by a preponderance of the evidence.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing legal documents that set up the rules for a planned community. They form an enforceable contract between the HOA and each property owner.
Homeowners’ Association (HOA)
The organization that makes and enforces rules for a subdivision or planned community. In this case, the Saguaro Crest Homeowners Association, Inc. is the Respondent.
Offer of Proof
A presentation of evidence made to a judge to demonstrate the substance and relevance of evidence that a party seeks to introduce. The Petitioners’ offer of proof regarding new evidence was found to be unsatisfactory.
Office of Administrative Hearings (OAH)
An independent state agency that conducts evidentiary hearings for other state agencies. This matter was referred to the OAH by the Department of Real Estate.
Petitioners
The party that initiates a legal action or petition. In this case, Clifford and Maria Burnes are the Petitioners.
Preponderance of the Evidence
The standard of proof in most civil cases. It means that the evidence presented is sufficient to convince the trier of fact that a contention is more probably true than not.
Respondent
The party against whom a petition is filed. In this case, the Saguaro Crest Homeowners Association, Inc. is the Respondent.
Blog Post – 21F-H2120002-REL
🧑⚖️
No emoji found
Loading
21F-H2120002-REL-RHG
1 source
The provided text is a Final Administrative Law Judge Decision from the Office of Administrative Hearings in Arizona, detailing a dispute between petitioners Clifford and Maria Burnes and the Saguaro Crest Homeowners Association, Inc. The case involved four specific allegations of violations by the Association, including allowing unapproved construction on Lot 7, failing to collect a required construction deposit, conducting an unnoticed meeting, and failing to fulfill a records request. This document affirms an earlier decision, concluding that the Petitioners failed to sustain the burden of proof for the first three issues but succeeded on the fourth issue regarding the violation of Arizona law concerning records requests. Consequently, the Association was ordered to comply with the relevant statute, provide missing email attachments, and reimburse a portion of the Petitioners’ filing fee.
Case Participants
Petitioner Side
Clifford (Norm) S. Burnes(petitioner) Saguaro Crest subdivision property owner; ARC Member
Maria Burnes(petitioner) Saguaro Crest subdivision property owner
Jacob A. Kubert(attorney)
Cynthia F. Burnes(attorney)
Debora Brown(witness)
Respondent Side
John Crotty(attorney) Law Offices of Farley, Choate & Wood
Kelsea Dressen(attorney) Law Offices of Farley, Choate & Wood
Esmerelda Martinez(board president; witness) Saguaro Crest HOA Board of Directors President of the Board
Dave Madill(board member) Saguaro Crest HOA Board of Directors Vice President of the Board
Julie Stevens(board member) Saguaro Crest HOA Board of Directors Treasurer of the Board
Raul Martinez(property owner) Owner of Lot 7 and 13 Construction on his property (Lot 7) is subject of the dispute
Ramona Martinez(property owner) Owner of Lot 7
Neutral Parties
Jenna Clark(ALJ) Office of Administrative Hearings
Sadot Negreté(observer)
Judy Lowe(ADRE Commissioner) Arizona Department of Real Estate
Dan Gardener(ADRE contact) Arizona Department of Real Estate Also listed as DGardner
c. serrano(administrative staff) Office of Administrative Hearings
Other Participants
Jamie Argueta(ARC member; property seller) Saguaro Crest HOA Architectural Review Committee Sold Lots 7 and 13 to Martinez family
Joseph Martinez(ARC member) Saguaro Crest HOA Architectural Review Committee
Jesus Carranza(substitute ARC member) Saguaro Crest HOA Architectural Review Committee Substitute for Petitioner during Lot 7 discussion
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
20F-H2020049-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2021-03-08
Administrative Law Judge
Jenna Clark
Outcome
loss
Filing Fees Refunded
$500.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Michael J Stoltenberg
Counsel
—
Respondent
Rancho Del Oro Homeowners Association
Counsel
Nicole Payne, Esq.
Alleged Violations
CC&Rs Section 14.8
Outcome Summary
The Administrative Law Judge denied the petition, concluding that the Association did not violate CC&Rs Section 14.8. The provision was determined to be inapplicable, governing the Association’s obligation to provide notice, not the methods homeowners must use to send payments.
Why this result: Petitioner failed to meet the burden of proof. CC&Rs Section 14.8 was inapplicable, and Petitioner's chosen restricted delivery method for assessment payments caused delays, which were not the responsibility of the Respondent.
Key Issues & Findings
Whether the Association violated CC&Rs 14.8 concerning notice obligations.
Petitioner alleged the Association violated CC&Rs 14.8 by improperly handling or failing to receive his monthly assessment payments, which he sent via restricted delivery to a board member despite receiving instructions to mail payments to the Association's designated P.O. Box address.
Orders: Petitioner's petition was denied because he failed to sustain his burden of proof that the Association violated CC&Rs Section 14.8.
Briefing Document: Stoltenberg v. Rancho Del Oro Homeowners Association
Executive Summary
This document synthesizes the findings and conclusions from two administrative law judge decisions concerning a dispute between homeowner Michael J. Stoltenberg (Petitioner) and the Rancho Del Oro Homeowners Association (Respondent). The Petitioner’s complaint, alleging the Association violated its governing documents and acted in bad faith regarding the handling of his monthly assessment payments, was comprehensively reviewed and ultimately denied. This denial was subsequently affirmed in a rehearing.
The core of the dispute centered on the Petitioner’s unilateral decision to send his monthly payments via restricted U.S. Postal Service delivery to a specific, unpaid volunteer board member. This action, taken despite clear instructions to mail payments to the Association’s P.O. Box, resulted in delayed receipt and returned mail, leading to the imposition of late fees and threats of foreclosure against the Petitioner.
The Administrative Law Judge’s central finding was that the Petitioner fundamentally misinterpreted Section 14.8 of the Association’s Covenants, Conditions, and Restrictions (CC&Rs). The judge concluded this section is unambiguously applicable only to notices sent from the Association to its members, and imposes no obligations on the Association regarding mail received from members. The payment delays and resulting penalties were determined to be the direct consequence of the Petitioner’s own “volitionally took” actions, for which the Association bore no responsibility. Furthermore, the Petitioner’s claims of “bad faith” under Arizona’s nonprofit corporation statutes were dismissed as falling outside the jurisdictional authority of the Arizona Department of Real Estate and the Office of Administrative Hearings.
I. Case Overview
The legal matter concerns a petition filed by a homeowner against his condominium association, alleging violations of the community’s governing documents and state law.
Case Number
20F-H2020049-REL / 20F-H2020049-REL-RHG
Petitioner
Michael J. Stoltenberg
Respondent
Rancho Del Oro Homeowners Association
Adjudicating Body
Arizona Office of Administrative Hearings (OAH)
Administrative Law Judge
Jenna Clark
The Petitioner’s initial complaint, filed on March 2, 2020, alleged that the Association “fail to do their job, and are acting in bad faith,” specifically citing violations of ARIZ. REV. STAT. §§ 10-3842 and 10-801, and Section 14.8 of the Association’s CC&Rs. He sought an order compelling the Association’s compliance and the issuance of a civil penalty.
II. Procedural History and Timeline
The dispute progressed through an initial hearing, a decision, a granted request for rehearing, and a final binding order.
• March 2, 2020: Petitioner files a single-issue petition with the Arizona Department of Real Estate (“Department”).
• March 24, 2020: Respondent files an ANSWER, denying all complaint items.
• April 1, 2020: The Department refers the matter to the Office of Administrative Hearings (OAH) for an evidentiary hearing.
• July 14, 2020: The initial evidentiary hearing is held.
• August 3, 2020: An AMENDED ADMINISTRATIVE LAW JUDGE DECISION is issued, denying the Petitioner’s petition.
• August 28, 2020: Petitioner submits a request for a rehearing.
• September 9, 2020: The Petitioner’s request for a rehearing is granted.
• February 16, 2021: A rehearing is held before the same Administrative Law Judge.
• March 8, 2021: A final ADMINISTRATIVE LAW JUDGE DECISION is issued, again denying the Petitioner’s petition.
III. Central Dispute: Assessment Payments and CC&R Section 14.8
The conflict originated from the Petitioner’s method of submitting monthly assessment payments and his interpretation of the Association’s obligations under its CC&Rs.
The Petitioner’s Actions and Their Consequences
• Instruction: On January 4, 2016, the Petitioner was advised that the Association’s “primary address for receiving all correspondence and all assessment payments from its members” was PO Box 4333, Yuma, Arizona 85366.
• Unilateral Change in Method: Beginning in November 2019, the Petitioner began sending his monthly payments via restricted delivery through the United States Postal Service (USPS), designated for “board member Rhea Carlisle’s pickup only.”
• Petitioner’s Rationale: He took this action based on a belief that an agent of the Association’s property management company had previously thrown away one of his mailed payments.
• Petitioner’s Acknowledged Awareness: The Petitioner was aware that the Association employed a property management company to collect mail and that Ms. Carlisle was an “unpaid volunteer board member,” not an employee of that company.
• Resulting Delays and Penalties: This restricted delivery method caused significant issues.
◦ One payment was returned by USPS on January 25, 2020.
◦ Another was returned by USPS on June 8, 2020.
◦ Other payments were picked up late on various dates.
◦ For each instance where the payment was received late, the Petitioner was assessed a late fee and his residence was placed in danger of foreclosure.
The Disputed Provision: CC&Rs Section 14.8
The legal basis for the Petitioner’s claim rested on his interpretation of Section 14.8 of the Association’s Bylaws.
• Full Text of Section 14.8, Notices:
• Respondent’s Argument: The Association argued that this section was “inapplicable to the facts as presented” because it governs the Association’s obligation when sending notices to homeowners, not the other way around.
IV. Administrative Law Judge’s Findings and Conclusions
Across two separate decisions, the Administrative Law Judge (ALJ) consistently found that the Petitioner failed to meet his burden of proof and that his interpretation of the governing documents was incorrect.
Initial Decision (August 3, 2020)
• Inapplicability of Section 14.8: The ALJ’s primary conclusion was a complete rejection of the Petitioner’s legal argument.
• Petitioner’s Culpability: The ALJ placed the responsibility for the late payments squarely on the Petitioner.
• Outcome: The petition was denied.
Rehearing Decision (March 8, 2021)
The rehearing was granted on the Petitioner’s grounds of an alleged “Error in the admission or rejection of evidence or other errors of law” and that the initial decision was “arbitrary, capricious, or an abuse of discretion.” The ALJ found no merit in these claims.
• Reaffirmation of Core Finding: The ALJ reiterated and strengthened the conclusion regarding Section 14.8.
• Jurisdictional Ruling: The ALJ explicitly addressed the Petitioner’s “bad faith” claim by citing ARIZ. REV. STAT. § 10-3842, which concerns standards of conduct for officers of nonprofit corporations.
• Failure to Support Rehearing Claims: The ALJ noted a complete lack of new evidence to justify the rehearing.
• Final Outcome: The petition was again denied. The order was made final and binding, with any further appeal requiring judicial review in superior court.
Study Guide – 20F-H2020049-REL-RHG
Study Guide: Stoltenberg v. Rancho Del Oro Homeowners Association
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 complete sentences, based entirely on the provided legal documents.
1. Who are the two primary parties in case No. 20F-H2020049-REL, and what are their respective roles?
2. What was the specific allegation Michael Stoltenberg made against the Rancho Del Oro Homeowners Association in his petition?
3. Why did the Petitioner, beginning in November 2019, change the way he mailed his monthly assessment payments?
4. What is the specific subject of Section 14.8 of the Association’s Covenants, Conditions, and Restrictions (CC&Rs)?
5. What were the consequences for the Petitioner each time the Association received his monthly assessment payment late?
6. According to the Administrative Law Judge, why was Section 14.8 of the CC&Rs inapplicable to the facts of this case?
7. What was the legal standard of proof the Petitioner was required to meet, and what is its definition?
8. On what grounds did the Petitioner request and receive a rehearing after the initial decision was issued?
9. Why did the Administrative Law Judge dismiss the Petitioner’s argument regarding Arizona Revised Statutes § 10-3842 during the rehearing?
10. What was the final outcome of both the initial hearing on July 14, 2020, and the rehearing on February 16, 2021?
——————————————————————————–
Quiz Answer Key
1. The primary parties are Michael J Stoltenberg, the “Petitioner,” and the Rancho Del Oro Homeowners Association, the “Respondent.” The Petitioner is a condominium owner and member of the Association who filed a petition alleging violations, while the Respondent is the homeowners’ association that governs the development.
2. The Petitioner alleged that the Association was in violation of Arizona Revised Statutes §§ 10-3842 and 10-801, and section 14.8 of the Association’s CC&Rs. Specifically, he alleged that the Association “fail to do their job, and are acting in bad faith.”
3. The Petitioner changed his mailing method because he believed an agent of the Association’s property management company had thrown away one of his mailed payments. As a result, he began sending payments via restricted delivery by the USPS, for board member Rhea Carlisle’s pickup only.
4. Section 14.8, titled “Notices,” pertains to any notice permitted or required by the Declaration or Bylaws. It specifically addresses the Association’s notice obligation to its members when mailing them information, outlining when such notices are deemed delivered.
5. Each time the Petitioner’s monthly assessment was received late, he was assessed a late fee by the Association. Additionally, each late payment occurrence put his residence in danger of foreclosure by the Association.
6. The Judge concluded Section 14.8 was inapplicable because its language speaks specifically to the Association’s obligation to provide notice to its members. The section has no binding authority or control over homeowners sending mail to the Association.
7. The Petitioner was required to prove his case by a “preponderance of the evidence.” This standard is defined as “proof as convinces the trier of fact that the contention is more probably true than not,” or evidence with the most convincing force that inclines an impartial mind to one side of an issue.
8. The Petitioner’s rehearing request was granted on the grounds that there was an alleged “Error in the admission or rejection of evidence or other errors of law occurring during the proceeding.” He also claimed that the initial findings of fact or decision were “arbitrary, capricious, or an abuse of discretion.”
9. The argument regarding ARIZ. REV. STAT. § 10-3842, which concerns standards of conduct for officers, was dismissed because it falls outside of the Department of Real Estate’s jurisdiction. The Petitioner had been advised of the Department’s jurisdictional limitations when he first filed his petition.
10. In both the initial decision (dated August 03, 2020) and the final order after the rehearing (dated March 08, 2021), the Administrative Law Judge denied the Petitioner’s petition. The Judge concluded in both instances that the Petitioner failed to sustain his burden of proof.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed to be answered in a detailed essay format, synthesizing information from across the provided documents. Answers are not provided.
1. Analyze the legal reasoning used by Administrative Law Judge Jenna Clark to deny the Petitioner’s claims in both the initial hearing and the rehearing. Discuss the interpretation of CC&R Section 14.8, the concept of burden of proof, and jurisdictional limitations.
2. Trace the complete procedural history of case No. 20F-H2020049-REL from the filing of the petition to the final order. Include all key dates, actions taken by the parties and the Department, and the specific reasons for each major step, such as the granting of the rehearing.
3. Evaluate the actions taken by the Petitioner, Michael Stoltenberg, regarding his assessment payments. Explain why his unilateral decision to use restricted mail delivery, despite being aware of the Association’s procedures, ultimately caused the negative outcomes he sought to avoid.
4. Explain the contractual relationship between a homeowners’ association and a property owner as described in the legal documents. How do the CC&Rs function as an enforceable contract, and how was this concept central to the dispute?
5. Discuss the roles and authorities of the Arizona Department of Real Estate and the Office of Administrative Hearings (OAH) in resolving HOA disputes, as demonstrated by this case. What are their powers, and what specific limitations on their jurisdiction are identified in the text?
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official who presides over the evidentiary hearing at the Office of Administrative Hearings and issues findings of fact, conclusions of law, and an order. In this case, the ALJ was Jenna Clark.
Arizona Department of Real Estate (Department)
The state agency authorized by statute to receive and decide petitions for hearings from members of homeowners’ associations in Arizona.
ARIZ. REV. STAT.
Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona.
Association
The Rancho Del Oro Homeowners Association, a condominium association whose membership is comprised of the condominium owners in the Rancho Del Oro residential real estate development in Yuma, Arizona.
Board of Directors (the Board)
The body that oversees the Homeowners Association.
Burden of Proof
The obligation of a party in a legal proceeding to prove their contention. In this case, the Petitioner bore the burden of proving the Respondent violated the CC&Rs.
An abbreviation for the Declaration of Covenants, Conditions and Restrictions. These governing documents form an enforceable contract between the Association and each property owner, empowering the Association to control certain aspects of property use.
Office of Administrative Hearings (OAH)
An independent state agency to which the Department of Real Estate refers matters for an evidentiary hearing. The OAH has the authority to hear and decide contested cases and interpret the contract (CC&Rs) between parties.
Petitioner
The party who files a petition initiating a legal action. In this case, Michael J Stoltenberg, a homeowner and member of the Association.
Preponderance of the Evidence
The standard of proof required in this proceeding. It is defined as “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 case, the Rancho Del Oro Homeowners Association.
Statutory Agent
An individual listed as an official agent for an entity. For the years 2019 and 2020, Diana Crites was listed as the Association’s Statutory Agent.
Abbreviation for the United States Postal Service.
Blog Post – 20F-H2020049-REL-RHG
Study Guide: Stoltenberg v. Rancho Del Oro Homeowners Association
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 complete sentences, based entirely on the provided legal documents.
1. Who are the two primary parties in case No. 20F-H2020049-REL, and what are their respective roles?
2. What was the specific allegation Michael Stoltenberg made against the Rancho Del Oro Homeowners Association in his petition?
3. Why did the Petitioner, beginning in November 2019, change the way he mailed his monthly assessment payments?
4. What is the specific subject of Section 14.8 of the Association’s Covenants, Conditions, and Restrictions (CC&Rs)?
5. What were the consequences for the Petitioner each time the Association received his monthly assessment payment late?
6. According to the Administrative Law Judge, why was Section 14.8 of the CC&Rs inapplicable to the facts of this case?
7. What was the legal standard of proof the Petitioner was required to meet, and what is its definition?
8. On what grounds did the Petitioner request and receive a rehearing after the initial decision was issued?
9. Why did the Administrative Law Judge dismiss the Petitioner’s argument regarding Arizona Revised Statutes § 10-3842 during the rehearing?
10. What was the final outcome of both the initial hearing on July 14, 2020, and the rehearing on February 16, 2021?
——————————————————————————–
Quiz Answer Key
1. The primary parties are Michael J Stoltenberg, the “Petitioner,” and the Rancho Del Oro Homeowners Association, the “Respondent.” The Petitioner is a condominium owner and member of the Association who filed a petition alleging violations, while the Respondent is the homeowners’ association that governs the development.
2. The Petitioner alleged that the Association was in violation of Arizona Revised Statutes §§ 10-3842 and 10-801, and section 14.8 of the Association’s CC&Rs. Specifically, he alleged that the Association “fail to do their job, and are acting in bad faith.”
3. The Petitioner changed his mailing method because he believed an agent of the Association’s property management company had thrown away one of his mailed payments. As a result, he began sending payments via restricted delivery by the USPS, for board member Rhea Carlisle’s pickup only.
4. Section 14.8, titled “Notices,” pertains to any notice permitted or required by the Declaration or Bylaws. It specifically addresses the Association’s notice obligation to its members when mailing them information, outlining when such notices are deemed delivered.
5. Each time the Petitioner’s monthly assessment was received late, he was assessed a late fee by the Association. Additionally, each late payment occurrence put his residence in danger of foreclosure by the Association.
6. The Judge concluded Section 14.8 was inapplicable because its language speaks specifically to the Association’s obligation to provide notice to its members. The section has no binding authority or control over homeowners sending mail to the Association.
7. The Petitioner was required to prove his case by a “preponderance of the evidence.” This standard is defined as “proof as convinces the trier of fact that the contention is more probably true than not,” or evidence with the most convincing force that inclines an impartial mind to one side of an issue.
8. The Petitioner’s rehearing request was granted on the grounds that there was an alleged “Error in the admission or rejection of evidence or other errors of law occurring during the proceeding.” He also claimed that the initial findings of fact or decision were “arbitrary, capricious, or an abuse of discretion.”
9. The argument regarding ARIZ. REV. STAT. § 10-3842, which concerns standards of conduct for officers, was dismissed because it falls outside of the Department of Real Estate’s jurisdiction. The Petitioner had been advised of the Department’s jurisdictional limitations when he first filed his petition.
10. In both the initial decision (dated August 03, 2020) and the final order after the rehearing (dated March 08, 2021), the Administrative Law Judge denied the Petitioner’s petition. The Judge concluded in both instances that the Petitioner failed to sustain his burden of proof.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed to be answered in a detailed essay format, synthesizing information from across the provided documents. Answers are not provided.
1. Analyze the legal reasoning used by Administrative Law Judge Jenna Clark to deny the Petitioner’s claims in both the initial hearing and the rehearing. Discuss the interpretation of CC&R Section 14.8, the concept of burden of proof, and jurisdictional limitations.
2. Trace the complete procedural history of case No. 20F-H2020049-REL from the filing of the petition to the final order. Include all key dates, actions taken by the parties and the Department, and the specific reasons for each major step, such as the granting of the rehearing.
3. Evaluate the actions taken by the Petitioner, Michael Stoltenberg, regarding his assessment payments. Explain why his unilateral decision to use restricted mail delivery, despite being aware of the Association’s procedures, ultimately caused the negative outcomes he sought to avoid.
4. Explain the contractual relationship between a homeowners’ association and a property owner as described in the legal documents. How do the CC&Rs function as an enforceable contract, and how was this concept central to the dispute?
5. Discuss the roles and authorities of the Arizona Department of Real Estate and the Office of Administrative Hearings (OAH) in resolving HOA disputes, as demonstrated by this case. What are their powers, and what specific limitations on their jurisdiction are identified in the text?
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official who presides over the evidentiary hearing at the Office of Administrative Hearings and issues findings of fact, conclusions of law, and an order. In this case, the ALJ was Jenna Clark.
Arizona Department of Real Estate (Department)
The state agency authorized by statute to receive and decide petitions for hearings from members of homeowners’ associations in Arizona.
ARIZ. REV. STAT.
Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona.
Association
The Rancho Del Oro Homeowners Association, a condominium association whose membership is comprised of the condominium owners in the Rancho Del Oro residential real estate development in Yuma, Arizona.
Board of Directors (the Board)
The body that oversees the Homeowners Association.
Burden of Proof
The obligation of a party in a legal proceeding to prove their contention. In this case, the Petitioner bore the burden of proving the Respondent violated the CC&Rs.
An abbreviation for the Declaration of Covenants, Conditions and Restrictions. These governing documents form an enforceable contract between the Association and each property owner, empowering the Association to control certain aspects of property use.
Office of Administrative Hearings (OAH)
An independent state agency to which the Department of Real Estate refers matters for an evidentiary hearing. The OAH has the authority to hear and decide contested cases and interpret the contract (CC&Rs) between parties.
Petitioner
The party who files a petition initiating a legal action. In this case, Michael J Stoltenberg, a homeowner and member of the Association.
Preponderance of the Evidence
The standard of proof required in this proceeding. It is defined as “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 case, the Rancho Del Oro Homeowners Association.
Statutory Agent
An individual listed as an official agent for an entity. For the years 2019 and 2020, Diana Crites was listed as the Association’s Statutory Agent.
Abbreviation for the United States Postal Service.
Case Participants
Petitioner Side
Michael J Stoltenberg(petitioner) Rancho Del Oro condominium owner Appeared on his own behalf,
Respondent Side
Nicole Payne(HOA attorney) Carpenter, Hazlewood, Delgado & Bolen, LLP Appeared on behalf of Rancho Del Oro Homeowners Association,,
Rhea Carlisle(board member) Rancho Del Oro Homeowners Association Unpaid volunteer board member; Petitioner directed mail specifically to her,,,
Diana Crites(statutory agent) Rancho Del Oro Homeowners Association Statutory Agent for 2019 and 2020,
Lydia Peirce(HOA attorney staff/contact) Linsmeier Carpenter, Hazlewood, Delgado & Bolen, LLP Listed as contact for Respondent in 2020 decision transmission
Neutral Parties
Jenna Clark(ALJ) Office of Administrative Hearings
Judy Lowe(ADRE commissioner) Arizona Department of Real Estate Commissioner receiving the OAH order,
Dan Gardner(HOA coordinator) Arizona Department of Real Estate HOA Coordinator contact for the Commissioner
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
20F-H2020049-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2021-03-08
Administrative Law Judge
Jenna Clark
Outcome
loss
Filing Fees Refunded
$500.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Michael J Stoltenberg
Counsel
—
Respondent
Rancho Del Oro Homeowners Association
Counsel
Nicole Payne, Esq.
Alleged Violations
CC&Rs Section 14.8
Outcome Summary
The Administrative Law Judge denied the Petitioner's petition following a rehearing. The ALJ concluded that the Petitioner failed to sustain the burden of proof that the Association violated CC&Rs Section 14.8, as that section applies only to the Association's notice obligation to members and not to assessment payments sent by members to the Association.
Why this result: The Petitioner failed to meet the burden of proof because the CC&R provision cited was inapplicable to the dispute. Additionally, the Petitioner was found to have inadvertently caused delays in payment receipt by using restricted delivery, contrary to instructions.
Key Issues & Findings
Whether the Association violated CC&Rs 14.8.
Petitioner alleged the Association violated CC&Rs Section 14.8 by failing to handle his monthly assessment payments correctly, resulting in late fees and threats of foreclosure. The ALJ found that Section 14.8 governs the Association's notice obligations to members and is inapplicable to the Petitioner's delivery of assessment payments to the Association.
Orders: Petitioner's petition was denied on rehearing.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 33-1243
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Analytics Highlights
Topics: CC&Rs, Assessments, Late Fees, Notice Provision, Burden of Proof, Rehearing
Additional Citations:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 33-1243
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
Briefing Document: Stoltenberg v. Rancho Del Oro Homeowners Association
Executive Summary
This document synthesizes the findings and conclusions from two administrative law judge decisions concerning a dispute between homeowner Michael J. Stoltenberg (Petitioner) and the Rancho Del Oro Homeowners Association (Respondent). The Petitioner’s complaint, alleging the Association violated its governing documents and acted in bad faith regarding the handling of his monthly assessment payments, was comprehensively reviewed and ultimately denied. This denial was subsequently affirmed in a rehearing.
The core of the dispute centered on the Petitioner’s unilateral decision to send his monthly payments via restricted U.S. Postal Service delivery to a specific, unpaid volunteer board member. This action, taken despite clear instructions to mail payments to the Association’s P.O. Box, resulted in delayed receipt and returned mail, leading to the imposition of late fees and threats of foreclosure against the Petitioner.
The Administrative Law Judge’s central finding was that the Petitioner fundamentally misinterpreted Section 14.8 of the Association’s Covenants, Conditions, and Restrictions (CC&Rs). The judge concluded this section is unambiguously applicable only to notices sent from the Association to its members, and imposes no obligations on the Association regarding mail received from members. The payment delays and resulting penalties were determined to be the direct consequence of the Petitioner’s own “volitionally took” actions, for which the Association bore no responsibility. Furthermore, the Petitioner’s claims of “bad faith” under Arizona’s nonprofit corporation statutes were dismissed as falling outside the jurisdictional authority of the Arizona Department of Real Estate and the Office of Administrative Hearings.
I. Case Overview
The legal matter concerns a petition filed by a homeowner against his condominium association, alleging violations of the community’s governing documents and state law.
Case Number
20F-H2020049-REL / 20F-H2020049-REL-RHG
Petitioner
Michael J. Stoltenberg
Respondent
Rancho Del Oro Homeowners Association
Adjudicating Body
Arizona Office of Administrative Hearings (OAH)
Administrative Law Judge
Jenna Clark
The Petitioner’s initial complaint, filed on March 2, 2020, alleged that the Association “fail to do their job, and are acting in bad faith,” specifically citing violations of ARIZ. REV. STAT. §§ 10-3842 and 10-801, and Section 14.8 of the Association’s CC&Rs. He sought an order compelling the Association’s compliance and the issuance of a civil penalty.
II. Procedural History and Timeline
The dispute progressed through an initial hearing, a decision, a granted request for rehearing, and a final binding order.
• March 2, 2020: Petitioner files a single-issue petition with the Arizona Department of Real Estate (“Department”).
• March 24, 2020: Respondent files an ANSWER, denying all complaint items.
• April 1, 2020: The Department refers the matter to the Office of Administrative Hearings (OAH) for an evidentiary hearing.
• July 14, 2020: The initial evidentiary hearing is held.
• August 3, 2020: An AMENDED ADMINISTRATIVE LAW JUDGE DECISION is issued, denying the Petitioner’s petition.
• August 28, 2020: Petitioner submits a request for a rehearing.
• September 9, 2020: The Petitioner’s request for a rehearing is granted.
• February 16, 2021: A rehearing is held before the same Administrative Law Judge.
• March 8, 2021: A final ADMINISTRATIVE LAW JUDGE DECISION is issued, again denying the Petitioner’s petition.
III. Central Dispute: Assessment Payments and CC&R Section 14.8
The conflict originated from the Petitioner’s method of submitting monthly assessment payments and his interpretation of the Association’s obligations under its CC&Rs.
The Petitioner’s Actions and Their Consequences
• Instruction: On January 4, 2016, the Petitioner was advised that the Association’s “primary address for receiving all correspondence and all assessment payments from its members” was PO Box 4333, Yuma, Arizona 85366.
• Unilateral Change in Method: Beginning in November 2019, the Petitioner began sending his monthly payments via restricted delivery through the United States Postal Service (USPS), designated for “board member Rhea Carlisle’s pickup only.”
• Petitioner’s Rationale: He took this action based on a belief that an agent of the Association’s property management company had previously thrown away one of his mailed payments.
• Petitioner’s Acknowledged Awareness: The Petitioner was aware that the Association employed a property management company to collect mail and that Ms. Carlisle was an “unpaid volunteer board member,” not an employee of that company.
• Resulting Delays and Penalties: This restricted delivery method caused significant issues.
◦ One payment was returned by USPS on January 25, 2020.
◦ Another was returned by USPS on June 8, 2020.
◦ Other payments were picked up late on various dates.
◦ For each instance where the payment was received late, the Petitioner was assessed a late fee and his residence was placed in danger of foreclosure.
The Disputed Provision: CC&Rs Section 14.8
The legal basis for the Petitioner’s claim rested on his interpretation of Section 14.8 of the Association’s Bylaws.
• Full Text of Section 14.8, Notices:
• Respondent’s Argument: The Association argued that this section was “inapplicable to the facts as presented” because it governs the Association’s obligation when sending notices to homeowners, not the other way around.
IV. Administrative Law Judge’s Findings and Conclusions
Across two separate decisions, the Administrative Law Judge (ALJ) consistently found that the Petitioner failed to meet his burden of proof and that his interpretation of the governing documents was incorrect.
Initial Decision (August 3, 2020)
• Inapplicability of Section 14.8: The ALJ’s primary conclusion was a complete rejection of the Petitioner’s legal argument.
• Petitioner’s Culpability: The ALJ placed the responsibility for the late payments squarely on the Petitioner.
• Outcome: The petition was denied.
Rehearing Decision (March 8, 2021)
The rehearing was granted on the Petitioner’s grounds of an alleged “Error in the admission or rejection of evidence or other errors of law” and that the initial decision was “arbitrary, capricious, or an abuse of discretion.” The ALJ found no merit in these claims.
• Reaffirmation of Core Finding: The ALJ reiterated and strengthened the conclusion regarding Section 14.8.
• Jurisdictional Ruling: The ALJ explicitly addressed the Petitioner’s “bad faith” claim by citing ARIZ. REV. STAT. § 10-3842, which concerns standards of conduct for officers of nonprofit corporations.
• Failure to Support Rehearing Claims: The ALJ noted a complete lack of new evidence to justify the rehearing.
• Final Outcome: The petition was again denied. The order was made final and binding, with any further appeal requiring judicial review in superior court.
Study Guide – 20F-H2020049-REL-RHG
Study Guide: Stoltenberg v. Rancho Del Oro Homeowners Association
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 complete sentences, based entirely on the provided legal documents.
1. Who are the two primary parties in case No. 20F-H2020049-REL, and what are their respective roles?
2. What was the specific allegation Michael Stoltenberg made against the Rancho Del Oro Homeowners Association in his petition?
3. Why did the Petitioner, beginning in November 2019, change the way he mailed his monthly assessment payments?
4. What is the specific subject of Section 14.8 of the Association’s Covenants, Conditions, and Restrictions (CC&Rs)?
5. What were the consequences for the Petitioner each time the Association received his monthly assessment payment late?
6. According to the Administrative Law Judge, why was Section 14.8 of the CC&Rs inapplicable to the facts of this case?
7. What was the legal standard of proof the Petitioner was required to meet, and what is its definition?
8. On what grounds did the Petitioner request and receive a rehearing after the initial decision was issued?
9. Why did the Administrative Law Judge dismiss the Petitioner’s argument regarding Arizona Revised Statutes § 10-3842 during the rehearing?
10. What was the final outcome of both the initial hearing on July 14, 2020, and the rehearing on February 16, 2021?
——————————————————————————–
Quiz Answer Key
1. The primary parties are Michael J Stoltenberg, the “Petitioner,” and the Rancho Del Oro Homeowners Association, the “Respondent.” The Petitioner is a condominium owner and member of the Association who filed a petition alleging violations, while the Respondent is the homeowners’ association that governs the development.
2. The Petitioner alleged that the Association was in violation of Arizona Revised Statutes §§ 10-3842 and 10-801, and section 14.8 of the Association’s CC&Rs. Specifically, he alleged that the Association “fail to do their job, and are acting in bad faith.”
3. The Petitioner changed his mailing method because he believed an agent of the Association’s property management company had thrown away one of his mailed payments. As a result, he began sending payments via restricted delivery by the USPS, for board member Rhea Carlisle’s pickup only.
4. Section 14.8, titled “Notices,” pertains to any notice permitted or required by the Declaration or Bylaws. It specifically addresses the Association’s notice obligation to its members when mailing them information, outlining when such notices are deemed delivered.
5. Each time the Petitioner’s monthly assessment was received late, he was assessed a late fee by the Association. Additionally, each late payment occurrence put his residence in danger of foreclosure by the Association.
6. The Judge concluded Section 14.8 was inapplicable because its language speaks specifically to the Association’s obligation to provide notice to its members. The section has no binding authority or control over homeowners sending mail to the Association.
7. The Petitioner was required to prove his case by a “preponderance of the evidence.” This standard is defined as “proof as convinces the trier of fact that the contention is more probably true than not,” or evidence with the most convincing force that inclines an impartial mind to one side of an issue.
8. The Petitioner’s rehearing request was granted on the grounds that there was an alleged “Error in the admission or rejection of evidence or other errors of law occurring during the proceeding.” He also claimed that the initial findings of fact or decision were “arbitrary, capricious, or an abuse of discretion.”
9. The argument regarding ARIZ. REV. STAT. § 10-3842, which concerns standards of conduct for officers, was dismissed because it falls outside of the Department of Real Estate’s jurisdiction. The Petitioner had been advised of the Department’s jurisdictional limitations when he first filed his petition.
10. In both the initial decision (dated August 03, 2020) and the final order after the rehearing (dated March 08, 2021), the Administrative Law Judge denied the Petitioner’s petition. The Judge concluded in both instances that the Petitioner failed to sustain his burden of proof.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed to be answered in a detailed essay format, synthesizing information from across the provided documents. Answers are not provided.
1. Analyze the legal reasoning used by Administrative Law Judge Jenna Clark to deny the Petitioner’s claims in both the initial hearing and the rehearing. Discuss the interpretation of CC&R Section 14.8, the concept of burden of proof, and jurisdictional limitations.
2. Trace the complete procedural history of case No. 20F-H2020049-REL from the filing of the petition to the final order. Include all key dates, actions taken by the parties and the Department, and the specific reasons for each major step, such as the granting of the rehearing.
3. Evaluate the actions taken by the Petitioner, Michael Stoltenberg, regarding his assessment payments. Explain why his unilateral decision to use restricted mail delivery, despite being aware of the Association’s procedures, ultimately caused the negative outcomes he sought to avoid.
4. Explain the contractual relationship between a homeowners’ association and a property owner as described in the legal documents. How do the CC&Rs function as an enforceable contract, and how was this concept central to the dispute?
5. Discuss the roles and authorities of the Arizona Department of Real Estate and the Office of Administrative Hearings (OAH) in resolving HOA disputes, as demonstrated by this case. What are their powers, and what specific limitations on their jurisdiction are identified in the text?
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official who presides over the evidentiary hearing at the Office of Administrative Hearings and issues findings of fact, conclusions of law, and an order. In this case, the ALJ was Jenna Clark.
Arizona Department of Real Estate (Department)
The state agency authorized by statute to receive and decide petitions for hearings from members of homeowners’ associations in Arizona.
ARIZ. REV. STAT.
Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona.
Association
The Rancho Del Oro Homeowners Association, a condominium association whose membership is comprised of the condominium owners in the Rancho Del Oro residential real estate development in Yuma, Arizona.
Board of Directors (the Board)
The body that oversees the Homeowners Association.
Burden of Proof
The obligation of a party in a legal proceeding to prove their contention. In this case, the Petitioner bore the burden of proving the Respondent violated the CC&Rs.
An abbreviation for the Declaration of Covenants, Conditions and Restrictions. These governing documents form an enforceable contract between the Association and each property owner, empowering the Association to control certain aspects of property use.
Office of Administrative Hearings (OAH)
An independent state agency to which the Department of Real Estate refers matters for an evidentiary hearing. The OAH has the authority to hear and decide contested cases and interpret the contract (CC&Rs) between parties.
Petitioner
The party who files a petition initiating a legal action. In this case, Michael J Stoltenberg, a homeowner and member of the Association.
Preponderance of the Evidence
The standard of proof required in this proceeding. It is defined as “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 case, the Rancho Del Oro Homeowners Association.
Statutory Agent
An individual listed as an official agent for an entity. For the years 2019 and 2020, Diana Crites was listed as the Association’s Statutory Agent.
Abbreviation for the United States Postal Service.
Blog Post – 20F-H2020049-REL-RHG
Study Guide: Stoltenberg v. Rancho Del Oro Homeowners Association
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 complete sentences, based entirely on the provided legal documents.
1. Who are the two primary parties in case No. 20F-H2020049-REL, and what are their respective roles?
2. What was the specific allegation Michael Stoltenberg made against the Rancho Del Oro Homeowners Association in his petition?
3. Why did the Petitioner, beginning in November 2019, change the way he mailed his monthly assessment payments?
4. What is the specific subject of Section 14.8 of the Association’s Covenants, Conditions, and Restrictions (CC&Rs)?
5. What were the consequences for the Petitioner each time the Association received his monthly assessment payment late?
6. According to the Administrative Law Judge, why was Section 14.8 of the CC&Rs inapplicable to the facts of this case?
7. What was the legal standard of proof the Petitioner was required to meet, and what is its definition?
8. On what grounds did the Petitioner request and receive a rehearing after the initial decision was issued?
9. Why did the Administrative Law Judge dismiss the Petitioner’s argument regarding Arizona Revised Statutes § 10-3842 during the rehearing?
10. What was the final outcome of both the initial hearing on July 14, 2020, and the rehearing on February 16, 2021?
——————————————————————————–
Quiz Answer Key
1. The primary parties are Michael J Stoltenberg, the “Petitioner,” and the Rancho Del Oro Homeowners Association, the “Respondent.” The Petitioner is a condominium owner and member of the Association who filed a petition alleging violations, while the Respondent is the homeowners’ association that governs the development.
2. The Petitioner alleged that the Association was in violation of Arizona Revised Statutes §§ 10-3842 and 10-801, and section 14.8 of the Association’s CC&Rs. Specifically, he alleged that the Association “fail to do their job, and are acting in bad faith.”
3. The Petitioner changed his mailing method because he believed an agent of the Association’s property management company had thrown away one of his mailed payments. As a result, he began sending payments via restricted delivery by the USPS, for board member Rhea Carlisle’s pickup only.
4. Section 14.8, titled “Notices,” pertains to any notice permitted or required by the Declaration or Bylaws. It specifically addresses the Association’s notice obligation to its members when mailing them information, outlining when such notices are deemed delivered.
5. Each time the Petitioner’s monthly assessment was received late, he was assessed a late fee by the Association. Additionally, each late payment occurrence put his residence in danger of foreclosure by the Association.
6. The Judge concluded Section 14.8 was inapplicable because its language speaks specifically to the Association’s obligation to provide notice to its members. The section has no binding authority or control over homeowners sending mail to the Association.
7. The Petitioner was required to prove his case by a “preponderance of the evidence.” This standard is defined as “proof as convinces the trier of fact that the contention is more probably true than not,” or evidence with the most convincing force that inclines an impartial mind to one side of an issue.
8. The Petitioner’s rehearing request was granted on the grounds that there was an alleged “Error in the admission or rejection of evidence or other errors of law occurring during the proceeding.” He also claimed that the initial findings of fact or decision were “arbitrary, capricious, or an abuse of discretion.”
9. The argument regarding ARIZ. REV. STAT. § 10-3842, which concerns standards of conduct for officers, was dismissed because it falls outside of the Department of Real Estate’s jurisdiction. The Petitioner had been advised of the Department’s jurisdictional limitations when he first filed his petition.
10. In both the initial decision (dated August 03, 2020) and the final order after the rehearing (dated March 08, 2021), the Administrative Law Judge denied the Petitioner’s petition. The Judge concluded in both instances that the Petitioner failed to sustain his burden of proof.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed to be answered in a detailed essay format, synthesizing information from across the provided documents. Answers are not provided.
1. Analyze the legal reasoning used by Administrative Law Judge Jenna Clark to deny the Petitioner’s claims in both the initial hearing and the rehearing. Discuss the interpretation of CC&R Section 14.8, the concept of burden of proof, and jurisdictional limitations.
2. Trace the complete procedural history of case No. 20F-H2020049-REL from the filing of the petition to the final order. Include all key dates, actions taken by the parties and the Department, and the specific reasons for each major step, such as the granting of the rehearing.
3. Evaluate the actions taken by the Petitioner, Michael Stoltenberg, regarding his assessment payments. Explain why his unilateral decision to use restricted mail delivery, despite being aware of the Association’s procedures, ultimately caused the negative outcomes he sought to avoid.
4. Explain the contractual relationship between a homeowners’ association and a property owner as described in the legal documents. How do the CC&Rs function as an enforceable contract, and how was this concept central to the dispute?
5. Discuss the roles and authorities of the Arizona Department of Real Estate and the Office of Administrative Hearings (OAH) in resolving HOA disputes, as demonstrated by this case. What are their powers, and what specific limitations on their jurisdiction are identified in the text?
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official who presides over the evidentiary hearing at the Office of Administrative Hearings and issues findings of fact, conclusions of law, and an order. In this case, the ALJ was Jenna Clark.
Arizona Department of Real Estate (Department)
The state agency authorized by statute to receive and decide petitions for hearings from members of homeowners’ associations in Arizona.
ARIZ. REV. STAT.
Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona.
Association
The Rancho Del Oro Homeowners Association, a condominium association whose membership is comprised of the condominium owners in the Rancho Del Oro residential real estate development in Yuma, Arizona.
Board of Directors (the Board)
The body that oversees the Homeowners Association.
Burden of Proof
The obligation of a party in a legal proceeding to prove their contention. In this case, the Petitioner bore the burden of proving the Respondent violated the CC&Rs.
An abbreviation for the Declaration of Covenants, Conditions and Restrictions. These governing documents form an enforceable contract between the Association and each property owner, empowering the Association to control certain aspects of property use.
Office of Administrative Hearings (OAH)
An independent state agency to which the Department of Real Estate refers matters for an evidentiary hearing. The OAH has the authority to hear and decide contested cases and interpret the contract (CC&Rs) between parties.
Petitioner
The party who files a petition initiating a legal action. In this case, Michael J Stoltenberg, a homeowner and member of the Association.
Preponderance of the Evidence
The standard of proof required in this proceeding. It is defined as “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 case, the Rancho Del Oro Homeowners Association.
Statutory Agent
An individual listed as an official agent for an entity. For the years 2019 and 2020, Diana Crites was listed as the Association’s Statutory Agent.
Abbreviation for the United States Postal Service.
Case Participants
Petitioner Side
Michael J Stoltenberg(petitioner) Rancho Del Oro condominium owner Appeared on his own behalf,
Respondent Side
Nicole Payne(HOA attorney) Carpenter, Hazlewood, Delgado & Bolen, LLP Appeared on behalf of Rancho Del Oro Homeowners Association,,
Rhea Carlisle(board member) Rancho Del Oro Homeowners Association Unpaid volunteer board member; Petitioner directed mail specifically to her,,,
Diana Crites(statutory agent) Rancho Del Oro Homeowners Association Statutory Agent for 2019 and 2020,
Lydia Peirce(HOA attorney staff/contact) Linsmeier Carpenter, Hazlewood, Delgado & Bolen, LLP Listed as contact for Respondent in 2020 decision transmission
Neutral Parties
Jenna Clark(ALJ) Office of Administrative Hearings
Judy Lowe(ADRE commissioner) Arizona Department of Real Estate Commissioner receiving the OAH order,
Dan Gardner(HOA coordinator) Arizona Department of Real Estate HOA Coordinator contact for the Commissioner
The Administrative Law Judge denied the petition, concluding that the Petitioner failed to prove the Association violated the CC&Rs regarding sewer maintenance or deductible apportionment, finding that the Association properly applied its 2012 Rules and Regulations.
Why this result: Petitioner failed to meet her burden of proof that the Respondent violated the CC&Rs in apportioning a proportionate share of the insurance deductible.
Key Issues & Findings
Dispute over apportionment of insurance deductible following sewer backup damage in a common area.
Petitioner challenged the Association's decision to apportion 43.84% ($10,958.96) of the insurance deductible to her unit following damage caused by a main sewer line blockage in a common area.
Orders: Petitioner’s petition is denied.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 41-1092
ARIZ. REV. STAT. § 41-1092.09
Title 33, Chapter 9 of the Arizona Revised Statutes
CC&Rs Sections 3.04, 3.07, 3.09
2012 Rules and Regulations Section 19
Analytics Highlights
Topics: Deductible Apportionment, Sewer Maintenance, Common Area, Condominium Documents, Rules and Regulations
Additional Citations:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 41-1092
ARIZ. REV. STAT. § 41-1092.09
Title 33, Chapter 9 of the Arizona Revised Statutes
Video Overview
Audio Overview
Decision Documents
21F-H2120014-REL Decision – 840033.pdf
Uploaded 2026-01-23T17:35:25 (138.3 KB)
Questions
Question
Can the HOA require a homeowner to pay a portion of the association's insurance deductible for damage caused by a common element failure?
Short Answer
Yes, if the community Rules and Regulations authorize the Board to apportion the deductible based on repair costs.
Detailed Answer
The ALJ found that the Association's Board had the authority to adopt rules regarding insurance deductibles. Specifically, the rules allowed the Board to apportion the deductible among unit owners and the association based on the proportion of repair costs when damage affects multiple units and common areas, even if the damage originated from a common element like a sewer line.
Alj Quote
Sections 19(b) and (c) appears to have anticipated the present scenario. There was damaged caused to two units and the common area, and Petitioner was apportioned 43.84% of the deductible. From the evidence presented, the Association also properly applied the applicable Rules and Regulations.
Legal Basis
Rules and Regulations Section 19
Topic Tags
insurance
deductible
assessments
common elements
Question
Who is responsible for ensuring insurance coverage for the 'gap' created by an HOA's insurance deductible?
Short Answer
The homeowner is responsible for obtaining personal insurance to cover the gap.
Detailed Answer
The decision highlights that governing documents or rules may explicitly state that owners must be aware of the deductible amount and secure their own coverage to handle that cost if assessed.
Alj Quote
Each Owner needs to be aware of the amount of the Association’s insurance deductible so that the Owner can determine that their personal insurance coverage will cover any gap.
Legal Basis
Rules and Regulations Section 19(e)
Topic Tags
insurance
homeowner responsibilities
Question
If the HOA fixes a maintenance issue after it occurs (like a sewer backup), can I still claim they violated their maintenance duty to avoid paying the deductible?
Short Answer
Likely no, as long as the HOA coordinated and accomplished the repairs.
Detailed Answer
The ALJ ruled that because the Association coordinated and completed the repairs once the issue occurred, the homeowner failed to prove that the Association neglected its maintenance duties under the CC&Rs. Therefore, the assessment of the deductible was not invalidated by a failure to maintain.
Alj Quote
Once the sewer backed up, the Association coordinated the repairs and accomplished the same. Petitioner failed to demonstrate that the Association failed to properly attend to the maintenance and/or repair of the sewer lines.
Legal Basis
CC&Rs Section 3.09
Topic Tags
maintenance
repairs
negligence
Question
What is the burden of proof for a homeowner challenging an HOA decision in an administrative hearing?
Short Answer
The homeowner must prove their case by a 'preponderance of the evidence'.
Detailed Answer
The homeowner (Petitioner) has the burden to prove that the HOA violated the governing documents or statutes. The standard is 'preponderance of the evidence,' meaning the claim must be shown to be more probably true than not.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated the CC&Rs… 'A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.'
Legal Basis
Standard of Evidence
Topic Tags
legal procedure
evidence
burden of proof
Question
Can the HOA Board create rules that change how financial liabilities (like deductibles) are handled without amending the CC&Rs?
Short Answer
Yes, if the CC&Rs grant the Board the authority to adopt rules for the regulation of the property.
Detailed Answer
The decision upheld the enforcement of a rule regarding insurance deductibles found in the 'Rules and Regulations,' noting that the CC&Rs granted the authority to adopt such rules.
Alj Quote
Section 4.10 of the CC&Rs granted authority to adopt rules 'for the regulation and operation of the Property…'
Legal Basis
CC&Rs Section 4.10
Topic Tags
rulemaking
board authority
governing documents
Case
Docket No
21F-H2120014-REL
Case Title
Lori & James Jordan vs. The Pines at Show Low Condominium Owners' Association, Inc.
Decision Date
2020-12-01
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Questions
Question
Can the HOA require a homeowner to pay a portion of the association's insurance deductible for damage caused by a common element failure?
Short Answer
Yes, if the community Rules and Regulations authorize the Board to apportion the deductible based on repair costs.
Detailed Answer
The ALJ found that the Association's Board had the authority to adopt rules regarding insurance deductibles. Specifically, the rules allowed the Board to apportion the deductible among unit owners and the association based on the proportion of repair costs when damage affects multiple units and common areas, even if the damage originated from a common element like a sewer line.
Alj Quote
Sections 19(b) and (c) appears to have anticipated the present scenario. There was damaged caused to two units and the common area, and Petitioner was apportioned 43.84% of the deductible. From the evidence presented, the Association also properly applied the applicable Rules and Regulations.
Legal Basis
Rules and Regulations Section 19
Topic Tags
insurance
deductible
assessments
common elements
Question
Who is responsible for ensuring insurance coverage for the 'gap' created by an HOA's insurance deductible?
Short Answer
The homeowner is responsible for obtaining personal insurance to cover the gap.
Detailed Answer
The decision highlights that governing documents or rules may explicitly state that owners must be aware of the deductible amount and secure their own coverage to handle that cost if assessed.
Alj Quote
Each Owner needs to be aware of the amount of the Association’s insurance deductible so that the Owner can determine that their personal insurance coverage will cover any gap.
Legal Basis
Rules and Regulations Section 19(e)
Topic Tags
insurance
homeowner responsibilities
Question
If the HOA fixes a maintenance issue after it occurs (like a sewer backup), can I still claim they violated their maintenance duty to avoid paying the deductible?
Short Answer
Likely no, as long as the HOA coordinated and accomplished the repairs.
Detailed Answer
The ALJ ruled that because the Association coordinated and completed the repairs once the issue occurred, the homeowner failed to prove that the Association neglected its maintenance duties under the CC&Rs. Therefore, the assessment of the deductible was not invalidated by a failure to maintain.
Alj Quote
Once the sewer backed up, the Association coordinated the repairs and accomplished the same. Petitioner failed to demonstrate that the Association failed to properly attend to the maintenance and/or repair of the sewer lines.
Legal Basis
CC&Rs Section 3.09
Topic Tags
maintenance
repairs
negligence
Question
What is the burden of proof for a homeowner challenging an HOA decision in an administrative hearing?
Short Answer
The homeowner must prove their case by a 'preponderance of the evidence'.
Detailed Answer
The homeowner (Petitioner) has the burden to prove that the HOA violated the governing documents or statutes. The standard is 'preponderance of the evidence,' meaning the claim must be shown to be more probably true than not.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated the CC&Rs… 'A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.'
Legal Basis
Standard of Evidence
Topic Tags
legal procedure
evidence
burden of proof
Question
Can the HOA Board create rules that change how financial liabilities (like deductibles) are handled without amending the CC&Rs?
Short Answer
Yes, if the CC&Rs grant the Board the authority to adopt rules for the regulation of the property.
Detailed Answer
The decision upheld the enforcement of a rule regarding insurance deductibles found in the 'Rules and Regulations,' noting that the CC&Rs granted the authority to adopt such rules.
Alj Quote
Section 4.10 of the CC&Rs granted authority to adopt rules 'for the regulation and operation of the Property…'
Legal Basis
CC&Rs Section 4.10
Topic Tags
rulemaking
board authority
governing documents
Case
Docket No
21F-H2120014-REL
Case Title
Lori & James Jordan vs. The Pines at Show Low Condominium Owners' Association, Inc.
Decision Date
2020-12-01
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Lori Jordan(petitioner) Appeared and testified at the hearing
James Jordan(petitioner)
Chuck Stewart(witness) The Pines at Show Low Condominium Owners' Association, Inc. Board Testified for Petitioner; later joined Board and voted against apportionment
Respondent Side
Sean Lissarrague(board member) The Pines at Show Low Condominium Owners' Association, Inc. Vice President of the Board; appeared and testified for Respondent
Neutral Parties
Adam D. Stone(ALJ) Office of Administrative Hearings Administrative Law Judge
Judy Lowe(Commissioner) Arizona Department of Real Estate Received electronic transmission of the decision
Other Participants
c. serrano(administrative staff) Transmitted the electronic decision
The Administrative Law Judge denied the Petitioner's single-issue petition, finding that the Petitioner failed to meet the burden of proof required to establish that the Respondent HOA violated the governing CC&R provisions.
Why this result: Petitioner failed to prove the alleged CC&R violations; specifically, the HOA was found to have the right to enter property for certain conditions (including emergencies or maintenance) but was under no obligation to do so, and the situation was not determined to be a true emergency by the ALJ.
Key Issues & Findings
Whether 10000 North Central Homeowners Association violated the CC&R's Article XII, Section 6 & Article XIII, Section 1(d) & 4.
Petitioner claimed the Association violated specified CC&R sections by refusing to grant access to the neighboring property to determine and resolve the source of a water leak. Petitioner requested an ORDER requiring the Association to allow access. The ALJ found that the CC&Rs grant the HOA the right to enter, but not the obligation, and Petitioner failed to prove an emergency situation or a violation of the CC&Rs.
Orders: Petitioner's petition in this matter was denied.
Briefing Document: Abbass v. 10000 North Central Homeowners Association
Executive Summary
This document synthesizes the findings from two Administrative Law Judge (ALJ) Decisions concerning a dispute between homeowner Susan E. Abbass (Petitioner) and the 10000 North Central Homeowners Association (Respondent). The core of the dispute was the Petitioner’s request for the Association to exercise its authority under the community’s Covenants, Conditions, and Restrictions (CC&Rs) to enter a neighboring property to inspect the source of a persistent water leak affecting the Petitioner’s home.
The ALJ ultimately denied the Petitioner’s petition and subsequent appeal. The central conclusion across both hearings was that while the Association’s CC&Rs grant it the right to enter a member’s property under specific circumstances (such as for inspections or emergencies), they do not impose an obligation or duty to do so. The Petitioner failed to meet the burden of proof required to demonstrate that the Association violated any provision of the CC&Rs. The ALJ characterized the situation as a “neighbor versus neighbor dispute” and determined that the Association acted within its business judgment by requiring more definitive proof of the leak’s source before authorizing entry, citing concerns over potential liability.
Case Overview
This matter involves a single-issue petition filed by a homeowner against her Homeowners Association (HOA) with the Arizona Department of Real Estate. The case was referred to the Office of Administrative Hearings for adjudication.
Case Details
Information
Case Number
20F-H2020057-REL
Petitioner
Susan E. Abbass
Respondent
10000 North Central Homeowners Association
Administrative Law Judge
Adam D. Stone
Initial Hearing Date
July 28, 2020
Rehearing Date
November 24, 2020
Core Allegation
The Association violated CC&Rs Article XII, Section 6 and Article XIII, Sections 1(d) & 4 by failing to grant access to a neighbor’s property to investigate a water leak.
Chronology of Key Events
1. November 14, 2019: Ronald Pick, residing with the Petitioner, discovers the home office carpet is “completely soaked with water.” He determines the drainage issue originates from the neighboring property.
2. November 2019: After the neighbor refuses to cooperate, the Petitioner contacts Robert Kersten, the Association’s Community Manager. Kersten sends a violation notice to the neighbor.
3. January 2020: The Association’s Board of Directors informs Kersten that they will handle the matter directly, and he ceases interaction with the Petitioner.
4. May 5, 2020: The Petitioner files a single-issue petition against the Association with the Arizona Department of Real Estate, paying a $500.00 fee.
5. July 28, 2020: The initial evidentiary hearing is held before an Administrative Law Judge.
6. August 17, 2020: The ALJ issues a decision denying the Petitioner’s petition, finding she failed to meet her burden of proof.
7. August 31, 2020: The Petitioner files a request for a rehearing.
8. October 14, 2020: The Commissioner of the Arizona Department of Real Estate grants the request for a rehearing.
9. November 24, 2020: The rehearing is conducted.
10. December 1, 2020: The ALJ issues a final decision, again finding for the Respondent and dismissing the Petitioner’s appeal.
Summary of Arguments
Petitioner’s Position (Susan E. Abbass)
• The Problem: A water leak originating from a neighboring property caused damage, with recurring water intrusion during rainfall.
• Attempted Resolution: The Petitioner and Mr. Pick attempted to work with the neighbor, who was uncooperative on the advice of her insurance company. They then sought the Association’s help to gain access for inspection.
• Core Argument: The Petitioner argued that the water leak constituted an “emergency situation” and that the Association had an obligation under the CC&Rs to grant access to the neighbor’s property for inspection.
• Evidence Provided: The Petitioner provided the Association with all available evidence, including a report from the City of Phoenix.
• Financial Responsibility: The Petitioner offered to pay for a geotechnical engineer and any associated costs for the inspection.
• Legal Basis: The Petitioner claimed the Association violated CC&Rs Article XII, Section 6 and Article XIII, Sections 1(d) and 4.
Respondent’s Position (10000 North Central HOA)
• Actions Taken: The Association, through its manager Robert Kersten, acknowledged the complaint and sent a violation notice to the neighbor regarding improper vegetation. They also contacted the neighbor to request access.
• Core Argument: The Association contended that the CC&Rs do not allow its manager to authorize entry “whenever they feel like it.” Entry requires “reasonable justification” and “some type of proof,” which the Board determined had not been provided by the Petitioner.
• Business Judgment and Liability: Respondent’s counsel argued the Board was exercising its business judgment to avoid potential liability that could arise from granting third-party access to a member’s property without sufficient cause.
• Neighbor’s Actions: The Association stated that, to its knowledge, the neighbor’s insurance company inspected the water flow and determined the neighbor was not at fault.
• Evidence Provided: At the rehearing, the Association submitted photographs (Exhibits K, L, M) purportedly showing a fixed pipe and drainage flowing away from the Petitioner’s property.
Analysis of CC&R Provisions
The dispute centered on the interpretation of specific articles within the Association’s Covenants, Conditions, and Restrictions.
Article
Provision Summary
XII, Section 6
Easement in Favor of Association: Grants the Association and its agents the right to enter Lots for specific purposes, including: (a) inspection of owner maintenance, (c) correction of emergency conditions, and (d) exercising its powers and duties.
XIII, Section 1(d)
Drainage Flow: States that “nothing shall be erected, planted or maintained to impede or interrupt said or normal drainage flow” in patio or yard areas that have been graded for drainage.
XIII, Section 4
Owner Maintenance and Association’s Right to Enter: Requires owners to keep their Lot in good order and repair. If an owner fails, the Association “shall have the right to enter upon said Lot or Patio to correct drainage and to repair, maintain and restore the Lot…” after providing notice to the owner and receiving approval from the Board.
Administrative Law Judge’s Findings and Rulings
The ALJ’s conclusions were consistent across both the initial decision and the rehearing. The Petitioner bore the burden of proving by a “preponderance of the evidence” that the Association violated the CC&Rs.
Key Findings from the Initial Decision (August 17, 2020)
• Right vs. Obligation: The judge’s central finding was that the Petitioner was “incorrect that the Respondent has an ‘obligation’ to enter the property.” The CC&Rs grant the Association a right to enter but do not impose a duty or obligation to do so.
• Lack of “True Emergency”: While Mr. Pick testified about water damage during rain, the judge noted a lack of testimony on the extent of the damage. The fact that over eight months had passed since the initial leak discovery indicated there was “no true emergency situation.”
• Stalemate and Business Judgment: The judge acknowledged the “stalemate” where the Petitioner could not obtain more proof without access, and the Association would not grant access without more proof. The Association’s decision was framed as an exercise of business judgment based on its determination that the submitted proof did not meet its standard for entry.
• Nature of the Dispute: The matter was characterized as a “neighbor versus neighbor dispute,” implying the Association was not the proper party to compel action.
• Conclusion: The Petitioner failed to meet her burden of proof.
Key Findings from the Rehearing Decision (December 1, 2020)
• No New Evidence: The Petitioner “failed to provide new evidence or witness testimony” that would alter the original conclusion.
• Petitioner’s Concession: During the rehearing, the Petitioner “agreed that Respondent does not have an obligation to enter the property, only the right.”
• Respondent’s Compliance: The ALJ concluded that the Association “acted in compliance with the CC&Rs.” It was “receptive to the information provided by Petitioner and requested the neighboring property owners cooperation.” The lack of the neighbor’s full cooperation did not constitute a violation by the Association.
• Jurisdictional Limits: The judge stated that under statute A.R.S. § 32-2199.02(A), an ALJ can only order a party to abide by the community documents. The judge “cannot force the neighbor or the Respondent to grant access to the property.”
• Incorrect Venue: The decision noted that “it appears that Petitioner has or the incorrect venue and possibly party to grant the relief for which it seeks.”
Final Disposition
IT IS ORDERED that Petitioner’s petition in this matter be denied. The final decision from the rehearing on December 1, 2020, named the Respondent as the prevailing party and dismissed the Petitioner’s appeal. This order is binding on the parties, with any further appeal requiring judicial review in the superior court within thirty-five days of the order being served.
Study Guide – 20F-H2020057-REL-RHG
Study Guide: Abbass v. 10000 North Central Homeowners Association
This study guide provides a review of the administrative case involving Petitioner Susan E. Abbass and Respondent 10000 North Central Homeowners Association. It covers the initial hearing and the subsequent rehearing concerning an alleged violation of the Association’s governing documents. The materials are designed to test and deepen understanding of the case facts, legal arguments, and final rulings.
——————————————————————————–
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 complete sentences, based on the information provided in the case documents.
1. Who are the primary parties in this case, and what are their respective roles?
2. What specific event on November 14, 2019, initiated the dispute between the Petitioner and her neighbor?
3. Identify the specific articles and sections of the Covenants, Conditions, and Restrictions (CC&Rs) that the Petitioner alleged the Respondent violated.
4. According to the Respondent’s property manager, Robert Kersten, what was required before the Association could authorize entry onto a member’s property?
5. What was the central legal distinction made by the Administrative Law Judge regarding the Association’s power to enter a property under the CC&Rs?
6. What was the outcome of the initial hearing on July 28, 2020, and what was the judge’s primary reason for this decision?
7. On what grounds did the Petitioner file her request for a rehearing after the initial decision?
8. Did the Petitioner present new evidence or testimony at the rehearing that changed the outcome? Explain briefly.
9. According to the Administrative Law Judge, what is the legal definition of “preponderance of the evidence”?
10. What limitations on the Administrative Law Judge’s authority are described in A.R.S. § 32-2199.02(A), and how did this affect the final order?
——————————————————————————–
Answer Key
1. The primary parties are Susan E. Abbass, the Petitioner, and the 10000 North Central Homeowners Association, the Respondent. The Petitioner is a property owner and Association member who filed a complaint, while the Respondent is the homeowners’ association responsible for governing the community.
2. On or about November 14, 2019, Ronald Pick, who resides with the Petitioner, discovered that the carpet in their home office was completely soaked with water. He ultimately determined the drainage problem originated from the neighboring property, which sparked the dispute.
3. The Petitioner alleged that the Respondent violated Article XII, Section 6, as well as Article XIII, Sections 1(d) and 4 of the CC&Rs. These sections relate to the Association’s easement rights for inspection and maintenance, rules against impeding drainage flow, and an owner’s duty to keep their lot in good repair.
4. Robert Kersten testified that the Association could not authorize entrance onto another’s property “whenever they feel like it.” He stated there must be “reasonable justification” and “some type of proof” to allow for access, which he determined the Petitioner had not provided.
5. The Administrative Law Judge determined that the CC&Rs give the Respondent the right to enter a property for specific purposes, but they do not impose an obligation to do so. This distinction was crucial, as the judge concluded the Association was not required to act, even if it had the authority.
6. In the initial hearing, the judge denied the Petitioner’s petition. The primary reason was that the Petitioner failed to meet her burden of proof, by a preponderance of the evidence, that the Respondent had violated a provision of the CC&Rs.
7. The Petitioner requested a rehearing on the grounds that the initial findings of fact were “arbitrary, capricious, or an abuse of discretion” and that the decision was “not supported by the evidence or is contrary to law.”
8. No, the Petitioner failed to provide new evidence or witness testimony at the rehearing that demonstrated a violation by the Respondent. The judge concluded that the Petitioner again failed to sustain her burden of proof, leading to the dismissal of her appeal.
9. The judge cites two definitions for “preponderance of the evidence.” The first is “such proof as convinces the trier of fact that the contention is more probably true than not.” The second, from Black’s Law Dictionary, is “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
10. A.R.S. § 32-2199.02(A) states that the judge “may order any party to abide by the statutes, condominium documents, community documents or contract provision at issue.” The judge interpreted this to mean he could not force the Respondent or the neighbor to grant access to the property, as his only power was to order compliance with the CC&Rs, which had not been violated.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for longer, essay-style responses. Use the details from the case documents to construct a thorough and well-supported argument for each prompt. (Answers not provided).
1. Analyze the concept of “burden of proof” as it applies to this case. Explain what the Petitioner needed to demonstrate to prevail and detail the specific reasons cited by the Administrative Law Judge for why she failed to meet this standard in both the initial hearing and the rehearing.
2. Discuss the legal and practical reasoning behind the Respondent’s decision not to grant access to the neighboring property. Evaluate the “business judgment” defense, the potential liability concerns, and the characterization of the issue as a “neighbor versus neighbor dispute.”
3. Examine the distinction between a “right” and an “obligation” as interpreted by the Administrative Law Judge from the CC&Rs. How did this interpretation become the central pillar of the decisions in this case, and what does it reveal about the scope of a homeowners’ association’s power?
4. Trace the procedural history of this case from the initial filing of the petition to the final order after the rehearing. Identify each key date and procedural step, and explain the purpose and outcome of each stage of the administrative hearing process.
5. Imagine you are advising the Petitioner after the final decision. Based on the judge’s conclusions that the Petitioner was in the “incorrect venue and possibly party,” what alternative legal avenues might she pursue to resolve the underlying water leak issue? Use evidence from the text to support your suggestions.
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings, hears evidence, and makes legal rulings and decisions, in this case for the Office of Administrative Hearings.
Arizona Department of Real Estate
The state agency in Arizona authorized by statute to receive and decide petitions for hearings involving disputes between homeowners and their homeowners’ associations.
Burden of Proof
The duty of a party in a legal proceeding to prove a disputed assertion or charge. In this case, the Petitioner had the burden to prove her claims by a preponderance of the evidence.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing legal documents that set up the rules for a planned community or subdivision. The Petitioner alleged the Respondent violated specific articles within these documents.
Easement
A legal right to use another person’s land for a specific, limited purpose. In this case, Article XII Section 6 of the CC&Rs granted an easement to the Association for purposes such as inspection, maintenance, and correction of emergencies.
Jurisdiction
The official power to make legal decisions and judgments. The Arizona Department of Real Estate and the Office of Administrative Hearings had jurisdiction to hear and decide this case pursuant to Arizona Revised Statutes.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona responsible for conducting evidentiary hearings for other state agencies, providing an impartial forum for disputes like the one in this case.
Petitioner
The party who files a petition initiating a legal action. In this matter, Susan E. Abbass was the Petitioner.
Preponderance of the Evidence
The standard of proof in most civil cases. It is defined in the text as “such proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with “the most convincing force.”
Prevailing Party
The party who wins a lawsuit or legal action. In the rehearing, the Administrative Law Judge concluded that the Respondent was the prevailing party.
Rehearing
A second hearing of a case to reconsider the issues and decision. A rehearing was granted in this case after the Petitioner claimed the initial decision was arbitrary, capricious, or not supported by evidence.
Respondent
The party against whom a petition is filed. In this matter, the 10000 North Central Homeowners Association was the Respondent.
Blog Post – 20F-H2020057-REL-RHG
Study Guide: Abbass v. 10000 North Central Homeowners Association
This study guide provides a review of the administrative case involving Petitioner Susan E. Abbass and Respondent 10000 North Central Homeowners Association. It covers the initial hearing and the subsequent rehearing concerning an alleged violation of the Association’s governing documents. The materials are designed to test and deepen understanding of the case facts, legal arguments, and final rulings.
——————————————————————————–
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 complete sentences, based on the information provided in the case documents.
1. Who are the primary parties in this case, and what are their respective roles?
2. What specific event on November 14, 2019, initiated the dispute between the Petitioner and her neighbor?
3. Identify the specific articles and sections of the Covenants, Conditions, and Restrictions (CC&Rs) that the Petitioner alleged the Respondent violated.
4. According to the Respondent’s property manager, Robert Kersten, what was required before the Association could authorize entry onto a member’s property?
5. What was the central legal distinction made by the Administrative Law Judge regarding the Association’s power to enter a property under the CC&Rs?
6. What was the outcome of the initial hearing on July 28, 2020, and what was the judge’s primary reason for this decision?
7. On what grounds did the Petitioner file her request for a rehearing after the initial decision?
8. Did the Petitioner present new evidence or testimony at the rehearing that changed the outcome? Explain briefly.
9. According to the Administrative Law Judge, what is the legal definition of “preponderance of the evidence”?
10. What limitations on the Administrative Law Judge’s authority are described in A.R.S. § 32-2199.02(A), and how did this affect the final order?
——————————————————————————–
Answer Key
1. The primary parties are Susan E. Abbass, the Petitioner, and the 10000 North Central Homeowners Association, the Respondent. The Petitioner is a property owner and Association member who filed a complaint, while the Respondent is the homeowners’ association responsible for governing the community.
2. On or about November 14, 2019, Ronald Pick, who resides with the Petitioner, discovered that the carpet in their home office was completely soaked with water. He ultimately determined the drainage problem originated from the neighboring property, which sparked the dispute.
3. The Petitioner alleged that the Respondent violated Article XII, Section 6, as well as Article XIII, Sections 1(d) and 4 of the CC&Rs. These sections relate to the Association’s easement rights for inspection and maintenance, rules against impeding drainage flow, and an owner’s duty to keep their lot in good repair.
4. Robert Kersten testified that the Association could not authorize entrance onto another’s property “whenever they feel like it.” He stated there must be “reasonable justification” and “some type of proof” to allow for access, which he determined the Petitioner had not provided.
5. The Administrative Law Judge determined that the CC&Rs give the Respondent the right to enter a property for specific purposes, but they do not impose an obligation to do so. This distinction was crucial, as the judge concluded the Association was not required to act, even if it had the authority.
6. In the initial hearing, the judge denied the Petitioner’s petition. The primary reason was that the Petitioner failed to meet her burden of proof, by a preponderance of the evidence, that the Respondent had violated a provision of the CC&Rs.
7. The Petitioner requested a rehearing on the grounds that the initial findings of fact were “arbitrary, capricious, or an abuse of discretion” and that the decision was “not supported by the evidence or is contrary to law.”
8. No, the Petitioner failed to provide new evidence or witness testimony at the rehearing that demonstrated a violation by the Respondent. The judge concluded that the Petitioner again failed to sustain her burden of proof, leading to the dismissal of her appeal.
9. The judge cites two definitions for “preponderance of the evidence.” The first is “such proof as convinces the trier of fact that the contention is more probably true than not.” The second, from Black’s Law Dictionary, is “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
10. A.R.S. § 32-2199.02(A) states that the judge “may order any party to abide by the statutes, condominium documents, community documents or contract provision at issue.” The judge interpreted this to mean he could not force the Respondent or the neighbor to grant access to the property, as his only power was to order compliance with the CC&Rs, which had not been violated.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for longer, essay-style responses. Use the details from the case documents to construct a thorough and well-supported argument for each prompt. (Answers not provided).
1. Analyze the concept of “burden of proof” as it applies to this case. Explain what the Petitioner needed to demonstrate to prevail and detail the specific reasons cited by the Administrative Law Judge for why she failed to meet this standard in both the initial hearing and the rehearing.
2. Discuss the legal and practical reasoning behind the Respondent’s decision not to grant access to the neighboring property. Evaluate the “business judgment” defense, the potential liability concerns, and the characterization of the issue as a “neighbor versus neighbor dispute.”
3. Examine the distinction between a “right” and an “obligation” as interpreted by the Administrative Law Judge from the CC&Rs. How did this interpretation become the central pillar of the decisions in this case, and what does it reveal about the scope of a homeowners’ association’s power?
4. Trace the procedural history of this case from the initial filing of the petition to the final order after the rehearing. Identify each key date and procedural step, and explain the purpose and outcome of each stage of the administrative hearing process.
5. Imagine you are advising the Petitioner after the final decision. Based on the judge’s conclusions that the Petitioner was in the “incorrect venue and possibly party,” what alternative legal avenues might she pursue to resolve the underlying water leak issue? Use evidence from the text to support your suggestions.
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings, hears evidence, and makes legal rulings and decisions, in this case for the Office of Administrative Hearings.
Arizona Department of Real Estate
The state agency in Arizona authorized by statute to receive and decide petitions for hearings involving disputes between homeowners and their homeowners’ associations.
Burden of Proof
The duty of a party in a legal proceeding to prove a disputed assertion or charge. In this case, the Petitioner had the burden to prove her claims by a preponderance of the evidence.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing legal documents that set up the rules for a planned community or subdivision. The Petitioner alleged the Respondent violated specific articles within these documents.
Easement
A legal right to use another person’s land for a specific, limited purpose. In this case, Article XII Section 6 of the CC&Rs granted an easement to the Association for purposes such as inspection, maintenance, and correction of emergencies.
Jurisdiction
The official power to make legal decisions and judgments. The Arizona Department of Real Estate and the Office of Administrative Hearings had jurisdiction to hear and decide this case pursuant to Arizona Revised Statutes.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona responsible for conducting evidentiary hearings for other state agencies, providing an impartial forum for disputes like the one in this case.
Petitioner
The party who files a petition initiating a legal action. In this matter, Susan E. Abbass was the Petitioner.
Preponderance of the Evidence
The standard of proof in most civil cases. It is defined in the text as “such proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with “the most convincing force.”
Prevailing Party
The party who wins a lawsuit or legal action. In the rehearing, the Administrative Law Judge concluded that the Respondent was the prevailing party.
Rehearing
A second hearing of a case to reconsider the issues and decision. A rehearing was granted in this case after the Petitioner claimed the initial decision was arbitrary, capricious, or not supported by evidence.
Respondent
The party against whom a petition is filed. In this matter, the 10000 North Central Homeowners Association was the Respondent.
Case Participants
Petitioner Side
Susan E Abbass(petitioner)
Ronald Pick(witness) witness for Petitioner
Respondent Side
Blake Johnson(HOA attorney) Brown Olcott, PLLC
Robert Kersten(property manager) witness for Respondent
Kelly Oetinger(HOA attorney) Brown Olcott, PLLC
Neutral Parties
Adam D. Stone(ALJ)
Judy Lowe(Commissioner) Arizona Department of Real Estate
The Administrative Law Judge denied the Petitioner's single-issue petition, finding that the Petitioner failed to meet the burden of proof required to establish that the Respondent HOA violated the governing CC&R provisions.
Why this result: Petitioner failed to prove the alleged CC&R violations; specifically, the HOA was found to have the right to enter property for certain conditions (including emergencies or maintenance) but was under no obligation to do so, and the situation was not determined to be a true emergency by the ALJ.
Key Issues & Findings
Whether 10000 North Central Homeowners Association violated the CC&R's Article XII, Section 6 & Article XIII, Section 1(d) & 4.
Petitioner claimed the Association violated specified CC&R sections by refusing to grant access to the neighboring property to determine and resolve the source of a water leak. Petitioner requested an ORDER requiring the Association to allow access. The ALJ found that the CC&Rs grant the HOA the right to enter, but not the obligation, and Petitioner failed to prove an emergency situation or a violation of the CC&Rs.
Orders: Petitioner's petition in this matter was denied.
Briefing Document: Abbass vs. 10000 North Central Homeowners Association
Executive Summary
This document synthesizes the findings and final order from the Administrative Law Judge (ALJ) in case number 20F-H2020057-REL-RHG, a dispute between homeowner Susan E. Abbass (Petitioner) and the 10000 North Central Homeowners Association (Respondent). The core of the dispute was the Petitioner’s request for the HOA to compel an inspection of a neighboring property, believed to be the source of a recurring water leak into her home.
The ALJ ultimately dismissed the Petitioner’s case, ruling in favor of the Respondent. The decision hinged on a critical distinction within the community’s governing documents (CCR’s): while the HOA possesses the right to enter a property under certain conditions, it does not have an explicit obligation to do so. The Petitioner failed to provide sufficient evidence to prove the HOA had violated the CCR’s. The ALJ concluded that the HOA acted reasonably by contacting the neighbor and reviewing the provided information, and that forcing access without more definitive proof could expose the HOA to legal risk. The decision suggests the Petitioner may be pursuing relief in an incorrect venue or against the incorrect party.
Case Overview
Case Name
Susan E Abbass vs. 10000 North Central Homeowners Association
Case Number
20F-H2020057-REL-RHG
Jurisdiction
In the Office of Administrative Hearings (Arizona)
Administrative Law Judge
Adam D. Stone
Petitioner
Susan E. Abbass
Respondent
10000 North Central Homeowners Association (represented by Blake Johnson, Esq.)
Hearing Date
November 24, 2020 (Rehearing)
Decision Date
December 1, 2020
Core Dispute and Allegations
Petitioner’s Central Claim
The Petitioner, Susan E. Abbass, alleged that the HOA violated its Covenants, Conditions, and Restrictions (CCR’s) by failing to authorize an inspection on a neighboring property. The Petitioner’s home was experiencing water intrusion every time it rained, and she believed the leak originated from the adjacent lot.
• Alleged Violations: The petition cited violations of the CCR’s Article XII, Section 6 and Article XIII, Sections 1(d) and 4.
• Argument: The Petitioner contended that the recurring water leak constituted an “emergency” situation, obligating the HOA to act.
Petitioner’s Position and Evidence
• Financial Responsibility: The Petitioner stated she was “ready, willing and able to be financially responsible for the cost of any inspections/surveys which needed to be performed on the neighboring property.”
• Due Diligence: Inspections and surveys conducted on her own property determined that the leak was not originating from there.
• Frustration: The Petitioner noted that over a year had passed since the leaking first occurred with no resolution from the HOA or the neighbor.
• Key Concession: During the rehearing, the Petitioner “agreed that Respondent does not have an obligation to enter the property, only the right.”
Respondent’s Defense and Actions
Respondent’s Position
The HOA argued that it did not have sufficient evidence to justify compelling access to the neighboring property. The property manager, Robert Kersten, testified for the Respondent.
• Lack of Proof: The HOA determined that the information provided by the Petitioner did not meet the criteria for forcing entry onto the neighbor’s property.
• Legal Risk: The Respondent expressed concern that if it “overstepped its authority, it could open itself up to other causes of action.”
Actions Taken by the HOA
Despite denying the Petitioner’s request to force an inspection, the HOA took the following steps:
• It reached out to the neighboring property owner to request access.
• It sent a warning letter to the neighbor regarding “improper vegetation” on the property.
• It contacted the neighbor, who, upon information and belief, had her insurance company inspect the water flow. The insurance company reportedly determined the neighbor was not at fault.
• At the rehearing, the Respondent submitted photographic evidence (Exhibits K, L, and M) purportedly showing a fixed pipe and drainage moving away from the Petitioner’s property.
Procedural History and Rehearing
1. Petition Filed (May 5, 2020): Petitioner filed a single-issue petition with the Arizona Department of Real Estate.
2. Initial Hearing (July 28, 2020): The first hearing was conducted.
3. Initial Decision (August 17, 2020): The ALJ issued a decision concluding the Petitioner failed to meet her burden of proof, as the HOA only had the right to enter the property, not an obligation.
4. Rehearing Request (August 31, 2020): Petitioner requested a rehearing, claiming the decision was “arbitrary, capricious, or an abuse of discretion” and “not supported by the evidence or is contrary to law.”
5. Rehearing Granted (October 14, 2020): The Commissioner of the Arizona Department of Real Estate granted the rehearing request.
6. Rehearing Conducted (November 24, 2020): The ALJ conducted a new hearing to reconsider the evidence.
Administrative Law Judge’s Findings and Conclusions
Burden of Proof
The ALJ reiterated that the Petitioner bears the burden to prove the alleged violations by a “preponderance of the evidence,” defined as evidence with “the most convincing force” that is “sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
• Conclusion on Evidence: The ALJ found that on rehearing, the “Petitioner failed to provide new evidence or witness testimony demonstrating that Respondent violated Article XII and Article XIII of the CCR’s.”
Key Judicial Determinations
• Right vs. Obligation: The central legal conclusion is that the HOA’s authority is discretionary. The CCR’s grant a right to enter property but do not impose an obligation to do so upon a homeowner’s request.
• HOA’s Conduct: The judge determined that the HOA had acted appropriately and in compliance with the CCR’s. The decision notes, “Respondent was receptive to the information provided by Petitioner and requested the neighboring property owners cooperation. While the neighboring owner may not have fully cooperated to the liking of Petitioner, Respondent still followed the CCR’s to the best of its ability at this point.”
• Statutory Limitations on ALJ: The ALJ is bound by Arizona statute A.R.S. § 32-2199.02(A), which limits the judge’s authority to ordering a party to “abide by the statutes, condominium documents, community documents or contract provision at issue.” The ALJ concluded, “it too cannot force the neighbor or the Respondent to grant access to the property.”
• Incorrect Venue: The decision strongly suggests the Petitioner is pursuing the wrong legal remedy: “While the possibility of future leaking is certainly frustrating, it appears that Petitioner has or the incorrect venue and possibly party to grant the relief for which it seeks.”
Final Order and Implications
• Ruling: The ALJ ordered that “the Respondent is the prevailing party with regard to the rehearing, and Petitioner’s appeal is dismissed.”
• Binding Nature: As a result of a rehearing, the administrative law judge order is binding on the parties.
• Appeal Process: Any party wishing to appeal the order must seek judicial review by filing with the superior court within thirty-five days from the date the order was served.
Study Guide – 20F-H2020057-REL
Study Guide: Abbass v. 10000 North Central Homeowners Association
This study guide provides a comprehensive review of the Administrative Law Judge Decision in case number 20F-H2020057-REL-RHG, involving Petitioner Susan E. Abbass and Respondent 10000 North Central Homeowners Association. It includes a short-answer quiz with an answer key, suggested essay questions, and a glossary of key terms to facilitate a thorough understanding of the case’s facts, legal arguments, and procedural history.
——————————————————————————–
Short Answer Quiz
Instructions: Answer the following questions in 2-3 sentences based on the information provided in the case document.
1. Who were the primary parties in this case, and what was the central dispute?
2. What specific articles of the community documents did the Petitioner allege the Respondent had violated?
3. What was the outcome of the initial administrative hearing held on July 28, 2020?
4. On what legal grounds did the Petitioner successfully request a rehearing of the case?
5. What was the Respondent’s main argument for not forcing an inspection of the neighboring property?
6. What key point regarding the Respondent’s authority did the Petitioner concede during the rehearing?
7. According to the decision, who bears the burden of proof, and what is the evidentiary standard required to meet it?
8. What evidence did the Respondent introduce during the rehearing on November 24, 2020?
9. What was the final ruling of the Administrative Law Judge, and what did the order state?
10. What specific limitation on the Administrative Law Judge’s power is cited in the Conclusions of Law?
——————————————————————————–
Answer Key
1. The primary parties were the Petitioner, Susan E. Abbass, and the Respondent, 10000 North Central Homeowners Association. The central dispute was the Petitioner’s claim that the Respondent failed to fulfill its duty by not allowing an inspection on a neighboring property to find the source of a water leak affecting the Petitioner’s home.
2. The Petitioner alleged that the Respondent had violated Article XII, Section 6 and Article XIII, Sections 1(d) and 4 of the Covenants, Conditions, and Restrictions (CCR’s).
3. Following the July 28, 2020 hearing, the Administrative Law Judge issued a decision on August 17, 2020, concluding that the Petitioner had failed to meet her burden of proof. The judge found that the Respondent only had the right to enter the neighboring property, not an obligation to do so.
4. The Petitioner’s request for rehearing was granted based on her claims that the initial findings of fact were “arbitrary, capricious, or an abuse of discretion” and that the decision was “not supported by the evidence or is contrary to law.”
5. The Respondent argued that the Petitioner had not provided sufficient proof of the neighbor’s fault to justify forcing access. The Respondent was also concerned that overstepping its authority could expose the association to other legal actions.
6. During the rehearing, the Petitioner agreed with the Respondent’s position that the association does not have an obligation to enter the neighboring property, only the right to do so.
7. The Petitioner bears the burden of proof. The evidentiary standard is “preponderance of the evidence,” which is defined as proof that convinces the trier of fact that a contention is more probably true than not.
8. At the rehearing, the Respondent introduced Exhibits K, L, and M. These were photographs that purportedly showed where a pipe was fixed and how drainage moves away from the Petitioner’s property.
9. The final ruling concluded that the Respondent had not violated the CCR’s and was the prevailing party. The order dismissed the Petitioner’s appeal.
10. The decision cites A.R.S. § 32-2199.02(A), which states that an Administrative Law Judge may only order a party to abide by the statutes, community documents, or contract provisions at issue. The judge cannot force the Respondent or the neighbor to grant access to the property.
——————————————————————————–
Suggested Essay Questions
Instructions: The following questions are designed for a more in-depth, essay-format response. Answers are not provided.
1. Analyze the legal distinction between a “right” and an “obligation” as it pertains to the Homeowners Association’s authority under the CCR’s in this case. How was this distinction central to the Administrative Law Judge’s final decision?
2. Discuss the concept of “preponderance of the evidence” as defined in the legal decision. Detail the evidence and arguments presented by both the Petitioner and Respondent, and explain why the judge ultimately concluded that the Petitioner failed to meet this standard.
3. Trace the complete procedural history of this case, from the filing of the initial petition to the final order. Identify the key dates, actions taken by each party, and the rulings made at each stage of the administrative process.
4. Evaluate the actions taken by the Respondent (10000 North Central Homeowners Association) in response to the Petitioner’s complaint. Based on the Findings of Fact, did the association act reasonably and in compliance with the CCR’s?
5. Explain the jurisdiction and statutory limitations of the Office of Administrative Hearings in resolving disputes between homeowners and their associations, as outlined in the decision. What remedies were available to the Petitioner through this venue, and why was the specific relief she sought beyond the judge’s power to grant?
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official who presides over administrative hearings, considers evidence, and issues a legal decision. In this case, the ALJ was Adam D. Stone.
A.R.S.
Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona.
Arizona Department of Real Estate
The state agency authorized by statute to receive and decide petitions for hearings involving homeowners’ associations in Arizona.
Burden of Proof
The legal obligation of a party in a dispute to provide sufficient evidence to prove their claim. In this case, the burden of proof was on the Petitioner.
An abbreviation for Covenants, Conditions, and Restrictions. These are the governing legal documents that set out the rules for a planned community or subdivision.
Office of Administrative Hearings
The government office where administrative law judges hear disputes concerning state agencies.
Order Granting Rehearing
A formal order issued by the Commissioner of the Arizona Department of Real Estate that approved the Petitioner’s request for a second hearing.
Petitioner
The party who initiates a legal action or files a petition. In this case, the Petitioner was Susan E. Abbass.
Planned Community
A real estate development that includes common property and is governed by a homeowners’ association.
Preponderance of the Evidence
The standard of proof required in this 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.”
Prevailing Party
The party who wins a legal case or dispute. In the final decision, the Respondent was named the prevailing party.
Respondent
The party against whom a petition is filed. In this case, the Respondent was the 10000 North Central Homeowners Association.
Tribunal
A body established to settle certain types of disputes. In this context, it refers to the Office of Administrative Hearings where the case was heard.
Blog Post – 20F-H2020057-REL
Briefing Document: Abbass vs. 10000 North Central Homeowners Association
Executive Summary
This document synthesizes the findings and final order from the Administrative Law Judge (ALJ) in case number 20F-H2020057-REL-RHG, a dispute between homeowner Susan E. Abbass (Petitioner) and the 10000 North Central Homeowners Association (Respondent). The core of the dispute was the Petitioner’s request for the HOA to compel an inspection of a neighboring property, believed to be the source of a recurring water leak into her home.
The ALJ ultimately dismissed the Petitioner’s case, ruling in favor of the Respondent. The decision hinged on a critical distinction within the community’s governing documents (CCR’s): while the HOA possesses the right to enter a property under certain conditions, it does not have an explicit obligation to do so. The Petitioner failed to provide sufficient evidence to prove the HOA had violated the CCR’s. The ALJ concluded that the HOA acted reasonably by contacting the neighbor and reviewing the provided information, and that forcing access without more definitive proof could expose the HOA to legal risk. The decision suggests the Petitioner may be pursuing relief in an incorrect venue or against the incorrect party.
Case Overview
Case Name
Susan E Abbass vs. 10000 North Central Homeowners Association
Case Number
20F-H2020057-REL-RHG
Jurisdiction
In the Office of Administrative Hearings (Arizona)
Administrative Law Judge
Adam D. Stone
Petitioner
Susan E. Abbass
Respondent
10000 North Central Homeowners Association (represented by Blake Johnson, Esq.)
Hearing Date
November 24, 2020 (Rehearing)
Decision Date
December 1, 2020
Core Dispute and Allegations
Petitioner’s Central Claim
The Petitioner, Susan E. Abbass, alleged that the HOA violated its Covenants, Conditions, and Restrictions (CCR’s) by failing to authorize an inspection on a neighboring property. The Petitioner’s home was experiencing water intrusion every time it rained, and she believed the leak originated from the adjacent lot.
• Alleged Violations: The petition cited violations of the CCR’s Article XII, Section 6 and Article XIII, Sections 1(d) and 4.
• Argument: The Petitioner contended that the recurring water leak constituted an “emergency” situation, obligating the HOA to act.
Petitioner’s Position and Evidence
• Financial Responsibility: The Petitioner stated she was “ready, willing and able to be financially responsible for the cost of any inspections/surveys which needed to be performed on the neighboring property.”
• Due Diligence: Inspections and surveys conducted on her own property determined that the leak was not originating from there.
• Frustration: The Petitioner noted that over a year had passed since the leaking first occurred with no resolution from the HOA or the neighbor.
• Key Concession: During the rehearing, the Petitioner “agreed that Respondent does not have an obligation to enter the property, only the right.”
Respondent’s Defense and Actions
Respondent’s Position
The HOA argued that it did not have sufficient evidence to justify compelling access to the neighboring property. The property manager, Robert Kersten, testified for the Respondent.
• Lack of Proof: The HOA determined that the information provided by the Petitioner did not meet the criteria for forcing entry onto the neighbor’s property.
• Legal Risk: The Respondent expressed concern that if it “overstepped its authority, it could open itself up to other causes of action.”
Actions Taken by the HOA
Despite denying the Petitioner’s request to force an inspection, the HOA took the following steps:
• It reached out to the neighboring property owner to request access.
• It sent a warning letter to the neighbor regarding “improper vegetation” on the property.
• It contacted the neighbor, who, upon information and belief, had her insurance company inspect the water flow. The insurance company reportedly determined the neighbor was not at fault.
• At the rehearing, the Respondent submitted photographic evidence (Exhibits K, L, and M) purportedly showing a fixed pipe and drainage moving away from the Petitioner’s property.
Procedural History and Rehearing
1. Petition Filed (May 5, 2020): Petitioner filed a single-issue petition with the Arizona Department of Real Estate.
2. Initial Hearing (July 28, 2020): The first hearing was conducted.
3. Initial Decision (August 17, 2020): The ALJ issued a decision concluding the Petitioner failed to meet her burden of proof, as the HOA only had the right to enter the property, not an obligation.
4. Rehearing Request (August 31, 2020): Petitioner requested a rehearing, claiming the decision was “arbitrary, capricious, or an abuse of discretion” and “not supported by the evidence or is contrary to law.”
5. Rehearing Granted (October 14, 2020): The Commissioner of the Arizona Department of Real Estate granted the rehearing request.
6. Rehearing Conducted (November 24, 2020): The ALJ conducted a new hearing to reconsider the evidence.
Administrative Law Judge’s Findings and Conclusions
Burden of Proof
The ALJ reiterated that the Petitioner bears the burden to prove the alleged violations by a “preponderance of the evidence,” defined as evidence with “the most convincing force” that is “sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
• Conclusion on Evidence: The ALJ found that on rehearing, the “Petitioner failed to provide new evidence or witness testimony demonstrating that Respondent violated Article XII and Article XIII of the CCR’s.”
Key Judicial Determinations
• Right vs. Obligation: The central legal conclusion is that the HOA’s authority is discretionary. The CCR’s grant a right to enter property but do not impose an obligation to do so upon a homeowner’s request.
• HOA’s Conduct: The judge determined that the HOA had acted appropriately and in compliance with the CCR’s. The decision notes, “Respondent was receptive to the information provided by Petitioner and requested the neighboring property owners cooperation. While the neighboring owner may not have fully cooperated to the liking of Petitioner, Respondent still followed the CCR’s to the best of its ability at this point.”
• Statutory Limitations on ALJ: The ALJ is bound by Arizona statute A.R.S. § 32-2199.02(A), which limits the judge’s authority to ordering a party to “abide by the statutes, condominium documents, community documents or contract provision at issue.” The ALJ concluded, “it too cannot force the neighbor or the Respondent to grant access to the property.”
• Incorrect Venue: The decision strongly suggests the Petitioner is pursuing the wrong legal remedy: “While the possibility of future leaking is certainly frustrating, it appears that Petitioner has or the incorrect venue and possibly party to grant the relief for which it seeks.”
Final Order and Implications
• Ruling: The ALJ ordered that “the Respondent is the prevailing party with regard to the rehearing, and Petitioner’s appeal is dismissed.”
• Binding Nature: As a result of a rehearing, the administrative law judge order is binding on the parties.
• Appeal Process: Any party wishing to appeal the order must seek judicial review by filing with the superior court within thirty-five days from the date the order was served.
Case Participants
Petitioner Side
Susan E Abbass(petitioner)
Ronald Pick(witness) Witness for Petitioner
Respondent Side
Blake Johnson(attorney) Brown Olcott, PLLC Represented Respondent
Robert Kersten(property manager) Property manager, appeared as a witness for Respondent
The Administrative Law Judge denied the petition, concluding that the Association did not violate CC&Rs Section 14.8. The provision was determined to be inapplicable, governing the Association’s obligation to provide notice, not the methods homeowners must use to send payments.
Why this result: Petitioner failed to meet the burden of proof. CC&Rs Section 14.8 was inapplicable, and Petitioner's chosen restricted delivery method for assessment payments caused delays, which were not the responsibility of the Respondent.
Key Issues & Findings
Whether the Association violated CC&Rs 14.8 concerning notice obligations.
Petitioner alleged the Association violated CC&Rs 14.8 by improperly handling or failing to receive his monthly assessment payments, which he sent via restricted delivery to a board member despite receiving instructions to mail payments to the Association's designated P.O. Box address.
Orders: Petitioner's petition was denied because he failed to sustain his burden of proof that the Association violated CC&Rs Section 14.8.
The Administrative Law Judge denied the petition, concluding that the Association did not violate CC&Rs Section 14.8. The provision was determined to be inapplicable, governing the Association’s obligation to provide notice, not the methods homeowners must use to send payments.
Why this result: Petitioner failed to meet the burden of proof. CC&Rs Section 14.8 was inapplicable, and Petitioner's chosen restricted delivery method for assessment payments caused delays, which were not the responsibility of the Respondent.
Key Issues & Findings
Whether the Association violated CC&Rs 14.8 concerning notice obligations.
Petitioner alleged the Association violated CC&Rs 14.8 by improperly handling or failing to receive his monthly assessment payments, which he sent via restricted delivery to a board member despite receiving instructions to mail payments to the Association's designated P.O. Box address.
Orders: Petitioner's petition was denied because he failed to sustain his burden of proof that the Association violated CC&Rs Section 14.8.
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Video Overview
Audio Overview
Decision Documents
20F-H2020049-REL Decision – 811290.pdf
Uploaded 2025-10-09T03:35:01 (131.7 KB)
Briefing Doc – 20F-H2020049-REL
Stoltenberg v. Rancho Del Oro HOA: Case Analysis and Legal Findings
Executive Summary
This document provides a comprehensive analysis of the administrative legal case Michael J Stoltenberg v. Rancho Del Oro Homeowners Association (Case No. 20F-H2020049-REL). The central dispute arose when Mr. Stoltenberg, a homeowner, was assessed late fees on his monthly dues after unilaterally altering his payment method. He began sending payments via restricted U.S. Postal Service delivery to a specific volunteer board member, which resulted in significant processing delays and non-deliveries.
The petitioner alleged the Association was acting in “bad faith” and violating Section 14.8 of its Covenants, Conditions, and Restrictions (CC&Rs). An Administrative Law Judge (ALJ) conclusively found that Section 14.8, which governs notices sent from the Association to its members, was entirely inapplicable to payments sent by a member to the Association. The ALJ determined that the petitioner’s own “volitionally took” actions were the direct cause of the payment delays and subsequent late fees.
The petitioner’s initial petition was denied. A subsequent request for rehearing was granted, but the rehearing affirmed the original decision. The ALJ reiterated that the cited CC&R section was inapplicable, noted a lack of jurisdiction over other statutes the petitioner raised, and concluded that the petitioner had failed to meet his burden of proof in either proceeding.
Case Background and Procedural History
Parties and Governing Documents
• Petitioner: Michael J. Stoltenberg, a condominium owner within the Rancho Del Oro development and a member of the homeowners’ association.
• Respondent: Rancho Del Oro Homeowners Association (“the Association”), a condominium association in Yuma, Arizona, governed by its CC&Rs and overseen by a Board of Directors.
• Governing Authority: The CC&Rs form an enforceable contract between the Association and each property owner. The specific provision at the center of the dispute is Section 14.8 of the Bylaws, titled “Notices.” This section has remained unamended since the original CC&Rs were recorded on August 30, 1985.
Initial Petition and Jurisdictional Scope
On March 2, 2020, Mr. Stoltenberg filed a petition with the Arizona Department of Real Estate, alleging the Association “fail to do their job, and are acting in bad faith.” The petition cited violations of Arizona Revised Statutes (ARIZ. REV. STAT.) §§ 10-3842 and 10-801, as well as Section 14.8 of the Association’s CC&Rs. Mr. Stoltenberg sought an order compelling the Association to comply with these regulations and the issuance of a civil penalty.
Upon filing, the Department advised the petitioner that the HOA Dispute Process lacks jurisdiction over disputes arising from Title 10 of the Arizona Revised Statutes. Consequently, the case was narrowed to a single issue, and the petitioner was assessed a $500 filing fee. The sole issue for the hearing was formally defined as: “Whether the Association violated CC&Rs 14.8.”
Chronology of Legal Proceedings
Outcome
March 2, 2020
Petition filed by Michael Stoltenberg.
The case is initiated.
July 14, 2020
Initial evidentiary hearing is held.
Both parties present arguments.
August 3, 2020
Amended ALJ Decision is issued.
The petitioner’s petition is denied.
August 28, 2020
Petitioner submits a rehearing request.
Grounds cited: errors of law and an arbitrary decision.
September 9, 2020
Rehearing request is granted.
A new hearing is scheduled.
February 16, 2021
Rehearing is held.
The same issue is re-examined.
March 8, 2021
Final ALJ Decision is issued.
The petitioner’s petition is denied again; the order is binding.
Factual Analysis of the Dispute
Payment Instructions and Petitioner’s Actions
On January 4, 2016, the petitioner was advised that the Association’s “primary address for receiving all correspondence and all assessment payments from its members” was PO Box 4333, Yuma, Arizona 85366. The correspondence explicitly stated, “Please send your payments to the above address.”
Despite these clear instructions, beginning in November 2019, the petitioner began sending his monthly assessment payments to this P.O. Box via restricted delivery through the United States Postal Service (USPS), designated for pickup by board member Rhea Carlisle only.
The petitioner’s stated rationale for this change was a belief that an agent of the Association’s property management company (PMC) had previously thrown away one of his mailed payments. However, the petitioner was aware of several key facts:
• The Association employed a PMC to pick up its mail.
• Ms. Carlisle was an unpaid volunteer board member, not an employee of the PMC.
• Diana Crites was the Association’s listed Statutory Agent for 2019 and 2020.
Consequences of Restricted Delivery
The petitioner’s unilateral decision to restrict delivery caused significant disruption to the receipt of his payments. This led to his assessments being recorded as untimely, which in turn resulted in the Association assessing late fees against his account. Additionally, each late payment occurrence placed his residence “in danger of foreclosure by the Association.”
A timeline of payment delivery issues presented as evidence includes:
Payment Period
USPS Action
December 2019
Picked up.
January 25, 2020
Returned to petitioner by USPS.
January 30, 2020
Picked up.
February 26, 2020
Picked up.
April 17, 2020
Picked up.
June 8, 2020
Returned to petitioner by USPS.
Legal Rulings and Core Arguments
Central Legal Text: CC&Rs Section 14.8 (“Notices”)
The entire case hinged on the interpretation of Section 14.8 of the Association’s Bylaws. The text reads:
“Any notice permitted or required by this Declaration or the Bylaws may be delivered either personally or by mail. If delivery is by mail, it shall be deemed to have been delivered seventy-two (72) hours after a copy of the same has been deposited in the United States mail, postage prepaid, addressed to each person at the current address given by such person to the secretary of the Board or addressed to the Unit of such person if no address has been given to the secretary.”
ALJ’s Interpretation: In both the initial decision and the rehearing decision, the ALJ found the language of Section 14.8 to be clear, “neither vague nor ambiguous,” and definitively inapplicable to the case. The ruling stated that the “language of Section 14.8 speaks specifically to the Association’s notice obligation to its members when mailing them information. Section 14.8 has no binding authority or control over homeowners sending mail to the Association.”
Arguments Presented
• He had always technically mailed his monthly payments on time to the correct P.O. Box.
• He filed the petition out of concern over incurring late fees and the potential loss of his home.
• During the rehearing, he argued that the initial decision failed to properly interpret Section 14.8 and should have also applied ARIZ. REV. STAT. § 10-3842 (concerning standards of conduct for nonprofit officers).
• Section 14.8 of the CC&Rs was entirely inapplicable to the facts presented, as it governs the Association’s outbound notice obligations, not a member’s inbound payments.
• The Department and the Office of Administrative Hearings lack jurisdiction under Title 10 of the ARIZ. REV. STAT.
• The petitioner failed to sustain the burden of proof required to show a violation.
Final Conclusions and Order
The Administrative Law Judge’s decisions in both the initial hearing and the rehearing were definitive. The core conclusions of law were as follows:
1. Burden of Proof: The petitioner bore the burden of proving by a preponderance of the evidence that the Association violated the CC&Rs and failed to meet this burden.
2. Inapplicability of CC&Rs Section 14.8: The provision cited by the petitioner was found to be wholly irrelevant to the matter of a homeowner mailing payments to the Association.
3. Assignment of Responsibility: The ALJ concluded that the petitioner’s own choices were the cause of the issue. The decision states, “By restricting the delivery of his monthly assessment payments, Petitioner inadvertently caused delay in their ability to be picked up by the Association.” There was “no credible evidence in the record to suggest that the action(s) Petitioner volitionally took are Respondent’s responsibility.”
4. Rehearing Findings: In the final decision, the ALJ noted that the petitioner “did not introduce any evidence tending to suggest that there was an ‘error in the admission or rejection of evidence or other errors of law…'” or that the prior decision was arbitrary or capricious.
Final Order: Based on the foregoing, the ALJ ordered that the petitioner’s petition be denied. The order issued on March 8, 2021, was binding on the parties, with any further appeal requiring judicial review in superior court within 35 days.
Study Guide – 20F-H2020049-REL
Study Guide: Stoltenberg v. Rancho Del Oro Homeowners Association
This guide provides a detailed review of the administrative case Michael J Stoltenberg v. Rancho Del Oro Homeowners Association, Case No. 20F-H2020049-REL, including the initial hearing and a subsequent rehearing. It is designed to test and deepen understanding of the facts, legal arguments, procedures, and outcomes presented in the official decisions.
Short-Answer Quiz
Instructions: Please answer the following questions in two to three complete sentences, drawing information exclusively from the provided legal documents.
1. Who were the primary parties in this legal dispute, and what was their relationship to one another?
2. What was the specific allegation Michael Stoltenberg made against the Rancho Del Oro Homeowners Association in his petition?
3. What specific action did the Petitioner take regarding his monthly assessment payments starting in November 2019?
4. According to the Association, why was Section 14.8 of the CC&Rs not applicable to the Petitioner’s complaint?
5. What were the negative consequences the Petitioner faced as a result of his payments being received late by the Association?
6. What was the legal standard of proof the Petitioner was required to meet, and did the judge find he had met it?
7. What were the two grounds upon which the Petitioner requested a rehearing after the initial decision?
8. Why was the Petitioner’s citation of Arizona Revised Statutes (ARIZ. REV. STAT.) § 10-3842 dismissed during the proceedings?
9. What was the final ruling in the Administrative Law Judge Decision issued on March 08, 2021, following the rehearing?
10. After the final order was issued, what was the Petitioner’s sole remaining avenue for appeal?
——————————————————————————–
Answer Key
1. The primary parties were Michael J Stoltenberg, the Petitioner, and the Rancho Del Oro Homeowners Association, the Respondent. Mr. Stoltenberg was a condominium owner and a member of the Association, which governed the residential development where he lived.
2. In his petition filed on March 2, 2020, Stoltenberg alleged the Association violated Section 14.8 of its CC&Rs and Arizona Revised Statutes §§ 10-3842 and 10-801. He specifically claimed the Association “fail to do their job, and are acting in bad faith.”
3. Beginning in November 2019, the Petitioner began sending his monthly assessment payments to the Association’s P.O. Box via restricted delivery from the United States Postal Service. He specified that the mail was for board member Rhea Carlisle’s pickup only, despite knowing she was a volunteer and not an employee of the property management company that handled mail.
4. The Association argued that Section 14.8 of the CC&Rs was inapplicable because it governs the Association’s notice obligations to its members. The judge agreed, stating the section has no binding authority over how homeowners send mail to the Association.
5. Each time the Petitioner’s monthly assessment was received late, he was assessed a late fee by the Association. Additionally, each late payment occurrence placed his residence in danger of foreclosure.
6. The Petitioner bore the burden of proving his case by a “preponderance of the evidence,” which means showing the contention is more probably true than not. The judge concluded in both decisions that the Petitioner failed to sustain this burden of proof.
7. The Petitioner requested a rehearing on the grounds that there was an alleged “Error in the admission or rejection of evidence or other errors of law occurring during the proceeding” and because “[t]he findings of fact or decision is arbitrary, capricious, or an abuse of discretion.”
8. The citation of ARIZ. REV. STAT. § 10-3842, which concerns standards of conduct for officers of nonprofit corporations, was dismissed because it falls outside the jurisdiction of the Arizona Department of Real Estate’s HOA Dispute Process. The Petitioner was advised of these jurisdictional limitations when he filed his petition.
9. The final ruling issued on March 8, 2021, denied the Petitioner’s petition once again. The judge affirmed the original findings, concluding there was no violation of Section 14.8 and that the Petitioner had not introduced any evidence to support his grounds for a rehearing.
10. After the final order resulting from the rehearing, the Petitioner’s only remaining recourse was to seek judicial review by filing an appeal with the superior court. This appeal had to be filed within thirty-five days from the date the order was served upon the parties.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for a more in-depth analysis. Formulate a comprehensive essay response for each prompt, using specific evidence and details from the source documents to support your arguments.
1. Analyze the legal reasoning of Administrative Law Judge Jenna Clark in her interpretation of Section 14.8 of the CC&Rs. Explain why this section was deemed inapplicable to the Petitioner’s situation and how this interpretation was central to the case’s outcome in both the hearing and rehearing.
2. Discuss the concept of “burden of proof” as it applied in this case. Explain who held the burden, what the “preponderance of the evidence” standard required, and why the Petitioner ultimately failed to meet this standard in the judgment of the court.
3. Trace the complete procedural history of this case, starting from the initial petition. Detail the key dates, filings (petition, answer, rehearing request), hearings, and decisions, explaining the significance of each step in the administrative legal process from March 2020 to March 2021.
4. Examine the actions of the Petitioner, Michael Stoltenberg, beginning in November 2019. Evaluate his rationale for unilaterally changing his payment method, the specific steps he took, and how his choices directly led to the late fees and risk of foreclosure he sought to avoid.
5. Explain the roles and jurisdictional limitations of the Arizona Department of Real Estate (the Department) and the Office of Administrative Hearings (OAH) in this dispute. Why were certain statutes cited by the Petitioner, such as those under Title 10 of the ARIZ. REV. STAT., dismissed by the court as being outside its purview?
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge, in this case Jenna Clark, who presides over administrative hearings, reviews evidence, and issues decisions for state agencies.
Answer
The formal written response filed by the Respondent (the Association) on March 24, 2020, denying all items in the Petitioner’s complaint.
Arizona Department of Real Estate (Department)
The state agency authorized by statute to receive and decide petitions for hearings regarding disputes within homeowners’ associations in Arizona.
Arizona Revised Statutes (ARIZ. REV. STAT.)
The collection of laws enacted by the Arizona state legislature. Specific statutes were cited by the Petitioner and referenced by the court.
Association
The Rancho Del Oro Homeowners Association, a condominium association responsible for governing the real estate development and enforcing its CC&Rs.
Board of Directors (the Board)
The governing body that oversees the Homeowners Association.
Burden of Proof
The legal obligation of a party in a trial (in this case, the Petitioner) to produce evidence that proves the claims they have made against the other party.
An acronym for the Declaration of Covenants, Conditions and Restrictions. These are the governing legal documents that form an enforceable contract between the Association and each property owner.
Conclusions of Law
The section of the judge’s decision that applies legal principles and statutes to the established facts of the case to reach a final judgment.
Findings of Fact
The section of the judge’s decision that details the factual background, procedural history, and evidence presented during the hearing.
Hearing
A formal proceeding before an administrative law judge where parties present evidence and arguments. In this case, hearings were held on July 14, 2020, and February 16, 2021.
Jurisdiction
The official power to make legal decisions and judgments. The Department’s jurisdiction was limited and did not extend to disputes arising from Title 10 of the Arizona Revised Statutes.
Office of Administrative Hearings (OAH)
An independent state agency that provides administrative law judges to conduct hearings for other state agencies, ensuring impartiality.
The final, binding command issued by the judge at the conclusion of the decision. In this case, the order was to deny the Petitioner’s petition.
Petitioner
The party who initiates a legal action by filing a petition. In this case, Michael J Stoltenberg.
Petition
The formal legal document filed by the Petitioner on March 2, 2020, to initiate the hearing process with the Department.
Preponderance of the Evidence
The standard of proof in this civil administrative case. It is defined as evidence that is sufficient to incline a fair and impartial mind to one side of the issue rather than the other.
Rehearing
A second hearing granted to a party to re-examine the issues of a case, typically requested on grounds of legal error or an unjust decision. The Petitioner’s request for a rehearing was granted.
Respondent
The party against whom a petition is filed. In this case, the Rancho Del Oro Homeowners Association.
Restricted Delivery
A service offered by the United States Postal Service (USPS) that ensures mail is delivered only to a specific addressee or their authorized agent.
Statutory Agent
An individual or entity designated to receive legal notices and service of process on behalf of a corporation or association. For the Association, this was Diana Crites.
Blog Post – 20F-H2020049-REL
Select all sources
811290.pdf
861466.pdf
No emoji found
Loading
20F-H2020049-REL-RHG
2 sources
These documents contain the Administrative Law Judge Decisions stemming from a dispute between a homeowner, Michael J. Stoltenberg, and the Rancho Del Oro Homeowners Association regarding the timely delivery of monthly assessment payments. The initial decision in August 2020 denied the homeowner’s petition, finding that the Association did not violate Section 14.8 of the Covenants, Conditions and Restrictions (CC&Rs), as that provision governs the Association’s notice obligation to members, not homeowners’ mail to the Association. Following a granted request for rehearing due to alleged errors of law, the subsequent March 2021 decision affirmed the original ruling, concluding that the homeowner’s self-imposed restriction on mail delivery caused the delays and that the relevant CC&R section was inapplicable to the petitioner’s complaint. Both decisions noted that the Office of Administrative Hearings (OAH) lacked jurisdiction over one of the statutes cited by the petitioner.
What were the legal and procedural reasons for granting the rehearing request?
How did the interpretation of CC&R Section 14.8 resolve the core dispute?
What was the Petitioner’s basis for claiming a violation against the Association?
Based on 2 sources
Case Participants
Petitioner Side
Michael J Stoltenberg(petitioner) Appeared on his own behalf
Respondent Side
Nicole Payne(HOA attorney) Carpenter, Hazlewood, Delgado & Bolen, LLP Appeared telephonically for Respondent
Rhea Carlisle(board member) Rancho Del Oro Homeowners Association Unpaid volunteer board member
Diana Crites(statutory agent) Rancho Del Oro Homeowners Association Statutory Agent for 2019 and 2020
Lydia Peirce Linsmeier(attorney contact) Carpenter, Hazlewood, Delgado & Bolen, LLP Recipient of electronic transmission for Respondent in initial decision
Neutral Parties
Jenna Clark(ALJ) OAH
Judy Lowe(Commissioner) ADRE Commissioner of the Arizona Department of Real Estate
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
20F-H2019026-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2020-07-14
Administrative Law Judge
Jenna Clark
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Werner A Reis
Counsel
—
Respondent
Canyon Mesa Townhouse Association
Counsel
Edward O’Brien, Esq.
Alleged Violations
CC&Rs Article III, section 1
Outcome Summary
The Administrative Law Judge issued a Final Order denying the Petitioner's claim on rehearing. The ALJ found that the Association did not violate CC&Rs Article III section 1 when its Board painted pickleball lines on one of the two existing tennis courts, as the action was within the Board's authority to manage Common Areas and did not infringe on members' nonexclusive perpetual easement rights.
Why this result: Petitioner failed to meet the burden of proof by a preponderance of the evidence, and the undisputed material facts supported the finding that the Association's actions were authorized by the governing documents (CC&Rs Articles II and VI) and did not deny or impede member access or use of the Common Areas.
Key Issues & Findings
Whether Canyon Mesa Townhouse Association violated community documents CC&Rs Article III, sec. 1.
Petitioner alleged that the Board's decision to paint pickleball lines on one of two tennis courts constituted an infringement or impediment of enjoyment rights for tennis players, thereby violating CC&Rs Article III section 1.
Orders: The ALJ denied the petition (on rehearing), concluding that Petitioner failed to sustain the burden of proof. The Association was authorized to manage and maintain Common Areas, and members' nonexclusive perpetual easement rights were not violated.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. §§ 32-2199.01(A)
ARIZ. REV. STAT. §§ 32-2199.01(D)
ARIZ. REV. STAT. §§ 32-2199.02
ARIZ. REV. STAT. § 33-1243
ARIZ. REV. STAT. §§ 41-1092 et seq.
ARIZ. REV. STAT. § 41-1092.08(H)
ARIZ. REV. STAT. § 12-904(A)
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
ARIZ. ADMIN. CODE R2-19-119
Analytics Highlights
Topics: HOA Governance, CC&Rs Interpretation, Common Area Use, Easement Rights, Recreational Facilities, Pickleball
Additional Citations:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. §§ 32-2199.01(A)
ARIZ. REV. STAT. §§ 32-2199.01(D)
ARIZ. REV. STAT. §§ 32-2199.02
ARIZ. REV. STAT. § 33-1243
ARIZ. REV. STAT. §§ 41-1092 et seq.
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Briefing Document: Reis v. Canyon Mesa Townhouse Association
Executive Summary
This document synthesizes the legal dispute between homeowner Werner A. Reis (Petitioner) and the Canyon Mesa Townhouse Association (Respondent) concerning the modification of a common area tennis court. The core of the dispute, adjudicated under case numbers 20F-H2019026-REL and 20F-H2019026-REL-RHG, was the Association’s decision in June 2019 to paint pickleball lines on one of its two community tennis courts. The Petitioner alleged this action violated Article III, section 1 of the community’s Covenants, Conditions, and Restrictions (CC&Rs), infringing upon his nonexclusive perpetual easement of use and enjoyment. The Association contended that its Board of Directors acted within its authority, as granted by the CC&Rs, to manage, maintain, and improve common areas for the benefit of all members.
Following an evidentiary hearing and a subsequent rehearing, Administrative Law Judge Jenna Clark ruled decisively in favor of the Association. The Judge found that the Petitioner failed to meet his burden of proof by a preponderance of the evidence. Key findings established that the Board was fully authorized to make the modification without a member vote, that tennis play was not restricted, and that the Petitioner’s easement rights were not violated. The Petitioner’s arguments, based on a potential future conflict rather than an actual experienced impediment, were deemed “unfounded” and “without merit.” The final order, issued on July 14, 2020, denied the petition, affirming the Association’s right to manage the recreational facilities in this manner.
——————————————————————————–
I. Case Overview
This matter involves a formal complaint by a homeowner against his townhouse association, brought before the Arizona Department of Real Estate and adjudicated by the Office of Administrative Hearings (OAH).
Whether the Canyon Mesa Townhouse Association violated community documents (CC&Rs Article III, section 1) by adding pickleball lines to one of two community tennis courts.
——————————————————————————–
II. Procedural History
The dispute progressed through a formal administrative hearing process, including a petition, a hearing, a decision, a request for rehearing, and a final order.
• November 18, 2019: Werner Reis files a single-issue petition with the Arizona Department of Real Estate.
• December 4, 2019: The Association files its ANSWER, denying all complaint items.
• January 31, 2020: An evidentiary hearing is held before ALJ Jenna Clark.
• February 20, 2020: The ALJ issues a decision denying the Petitioner’s petition, finding he failed to sustain his burden of proof.
• March 26, 2020: The Petitioner submits a REQUEST FOR REHEARING to the Department.
• April 22, 2020: The Department grants the Petitioner’s request for a rehearing.
• May 20, 2020: During a prehearing conference, both parties stipulate that no factual dispute exists and agree to adopt the prior hearing record and submit written closing arguments in lieu of a new hearing.
• June 24, 2020: Deadline for written closing arguments. The Association submits a 17-page argument; the OAH receives no closing argument from the Petitioner.
• July 14, 2020: The ALJ issues a final decision, again denying the petition and ordering that the initial decision from February be the final order in the matter.
——————————————————————————–
III. Analysis of the Dispute
The central conflict was the interpretation of the Association’s CC&Rs regarding the Board’s authority to modify common areas versus a member’s right to their use and enjoyment.
Petitioner’s Position (Werner A. Reis)
The Petitioner’s case was built on the premise that adding pickleball as a competing use for a tennis court fundamentally diminished the rights of tennis-playing members.
• Core Allegation: The Association violated Article III, section 1 of the CC&Rs, which grants every member a “nonexclusive perpetual easement of use and enjoyment in and to the Common Areas.”
• Argument on Infringement: The Petitioner argued the Association created a situation where “Members have the right to play tennis unless pickleball is in play,” which he claimed “constitutes an infringement of tennis players’ right of use and enjoyment.”
• Impediment of Enjoyment: He contended that reducing the number of exclusively available tennis courts from two to one amounts to “an impediment of enjoyment rights.”
• Creation of Competition: He accused the Association of “creating a new class of people” (pickleball players) who could access the courts, creating new competition for members on a first-come, first-served basis.
• Hypothetical Conflict: The “crux” of his complaint was the possible future conflict between his desire to play two singles matches simultaneously and up to sixteen “outsiders playing a raucous game of pickleball on the other designated tennis court.”
• Requested Remedy: The Petitioner requested an order requiring the Association to designate the courts for tennis playing only.
Respondent’s Position (Canyon Mesa Townhouse Association)
The Association defended its decision as a reasonable exercise of the Board’s authority to manage community property for the benefit of all residents.
• Board Authority: The Board asserted that its decision was permitted by Article II, section 1 of the CC&Rs, which grants it the authority to “manage, maintain, repair, replace and improve the Common Areas” without requiring a member vote. Article VI further requires the Board to maintain and manage recreational facilities.
• Benefit to Community: The decision was made to offer pickleball as an additional recreational feature to satisfy growing interest from owners, renters, and guests, and was also considered as a potential means to generate revenue.
• No Restriction of Use: The Association maintained that tennis play was not restricted. Both courts remained available seven days a week on a first-come, first-served basis, with no changes to the reservation system. One court remained available exclusively for tennis at all times.
• Nature of Modification: The modification involved painting lines and using portable nets, which must be detached after play. The permanent tennis nets on both courts remained in place.
——————————————————————————–
IV. Summary of Evidence and Testimony
Testimony from the Association’s representatives and the Petitioner established the key undisputed facts of the case.
Testimony for the Association (Charles Mitchell & Arland Averell)
• Board Authority Confirmed: Charles Mitchell, the Board Director, testified that CC&Rs Articles II and VI, along with the Association’s Articles of Incorporation, authorize the Board to manage and improve common areas, including painting lines on the tennis courts.
• Historical Context: Arland Averell, a 20-year Board member, explained that a taped pickleball court had existed in 2015 but was damaged. The Board decided in April 2019 to reestablish it with painted lines in response to requests from several families.
• Practical Use: Pickleball is generally played only by a few families, typically on Saturday mornings. When pickleball is being played on the modified court, the other tennis court is always available.
• No Denial of Access: Director Mitchell confirmed that the Petitioner had never been denied access to the tennis courts at any time.
Testimony of the Petitioner (Werner A. Reis)
• Recent Homeowner: The Petitioner described himself as a “snowbird” who had purchased his townhouse in November 2019, shortly before filing his complaint.
• Conflict is Hypothetical: He admitted that he “has not played tennis in ‘years'” and, as a result, “has not yet found himself facing any such actual conflict.”
• No Direct Observation: The Petitioner testified that he had not personally observed contemporaneous tennis and pickleball games being played. His concerns about safety and inconvenience were speculative.
——————————————————————————–
V. Administrative Law Judge’s Findings and Final Order
The Administrative Law Judge’s decisions consistently found the Petitioner’s arguments to be legally and factually unsupported.
Conclusions of Law
• Undisputed Facts: The Judge concluded that the material facts were not in dispute. The Association’s governing documents clearly authorize the Board to maintain, manage, and improve the Common Areas, including the recreational facilities.
• No Violation of Easement Rights: The ruling stated, “What the evidence of record reflects is that Petitioner’s easement rights have not been violated by the Association because the Board painted blue pickleball lines on one of two tennis courts.”
• Petitioner’s Arguments Dismissed: The Judge found the Petitioner’s arguments to be “unfounded” and “without merit.” Specifically, the claim that the availability of only one dedicated court was an “impediment of enjoyment rights” was rejected.
• Failure to Meet Burden of Proof: In both the initial decision and the final order, the Judge concluded that the “Petitioner has failed to sustain his burden of proof” by a preponderance of the evidence that the Association violated Article III, section 1 of the CC&Rs.
• Failure to Prosecute Rehearing: The final decision noted that the Petitioner “did not provide OAH with a closing argument in support of his request for rehearing.”
Final Disposition
IT IS ORDERED that Petitioner’s petition is denied.
The decision issued on July 14, 2020, affirmed the initial February 24, 2020, decision and was designated as the FINAL ORDER in the matter, binding on both parties.
Study Guide – 20F-H2019026-REL-RHG
Study Guide: Reis vs. Canyon Mesa Townhouse Association
Short-Answer Quiz
Instructions: Answer the following questions in two to three sentences, drawing exclusively from the information provided in the case documents.
1. What was the specific allegation made by the Petitioner, Werner A. Reis, in his petition filed on November 18, 2019?
2. On what grounds did the Canyon Mesa Townhouse Association’s Board of Directors justify its decision to add pickleball lines to a tennis court?
3. According to the testimony of Arland Averell, what prompted the Board to reestablish a pickleball court in April 2019, and what was a prior experience with a pickleball court?
4. Describe the central, or “crux,” of the Petitioner’s complaint as summarized in the hearing evidence.
5. What key admissions did the Petitioner make during his testimony regarding his own tennis activity and his personal experience with the alleged conflict?
6. According to Director Charles Mitchell’s testimony, what is the physical setup of the nets on the courts, and how does this differ between tennis and pickleball?
7. What was the legal standard of proof the Petitioner was required to meet, and how is that standard defined in the legal documents?
8. What was the outcome of the initial evidentiary hearing held on January 31, 2020, and on what basis did the Administrative Law Judge reach this conclusion?
9. Describe the procedural change that occurred for the rehearing after the parties’ prehearing conference on May 20, 2020.
10. What action, or lack thereof, by the Petitioner on June 24, 2020, contributed to the final ruling in the rehearing?
——————————————————————————–
Answer Key
1. The Petitioner alleged that the Association violated Article III, section 1 of the Covenants, Conditions, and Restrictions (CC&Rs). The specific violation claimed was the modification of one of the two existing tennis courts for use as a pickleball court.
2. The Association’s Board of Directors justified the decision as an improvement to the Common Areas for the benefit of the Association, which it was permitted to do under Article II, section 1 of the CC&Rs. The decision was made to offer pickleball as an additional recreational feature to satisfy growing interest from owners, renters, and guests.
3. Arland Averell testified that in April 2019, the Board decided to reestablish the pickleball court with painted lines after several families requested it, and the Board also saw it as a way to generate additional revenue. A previous pickleball court established in 2015 had lines made of tape which were damaged approximately four months after being applied.
4. The crux of the Petitioner’s complaint was the possible future conflict between his personal desire to play two singles tennis matches on both courts simultaneously and the potential for up to sixteen “outsiders” to be playing a “raucous game of pickleball” on the modified court.
5. The Petitioner admitted that he had not played tennis in “years” and, as a result, had never actually faced the conflict he was complaining about. He also stated he had never been denied access to the courts and had not observed contemporaneous games of tennis and pickleball being played.
6. Director Mitchell testified that both tennis courts have fixed tennis nets. The pickleball court, however, has portable nets which must be attached for use and then detached at the end of play.
7. The Petitioner was required to prove his case by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that the contention is more probably true than not, representing the greater weight of evidence.
8. Following the January 31, 2020, hearing, the Administrative Law Judge denied the Petitioner’s petition. The judge concluded that the Petitioner had failed to sustain his burden of proof and that the evidence showed his easement rights had not been violated, as one tennis court always remained available.
9. During the prehearing conference, the parties stipulated that no factual dispute existed. They agreed to vacate the scheduled rehearing, adopt the evidentiary record from the first hearing without presenting new evidence, and submit written closing arguments instead.
10. On the deadline of June 24, 2020, the Office of Administrative Hearings received a 17-page closing argument from the Respondent (the Association). The Petitioner, Werner A. Reis, failed to submit a closing argument, which was noted in the final decision denying his petition again.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for longer, essay-style responses. Formulate your answers by synthesizing information from across the case documents. Answers are not provided.
1. Analyze the conflict between the rights granted to members under CC&Rs Article III, section 1 (“easement of use and enjoyment”) and the powers granted to the Board under CC&Rs Article II, section 1 (“manage, maintain, repair, replace and improve the Common Areas”). How did the Administrative Law Judge resolve this apparent tension in the final decision?
2. Discuss the concept of the “burden of proof” as it applied in this case. Explain why Werner Reis’s testimony and arguments ultimately failed to meet the “preponderance of the evidence” standard.
3. Trace the procedural history of this case from the initial petition on November 18, 2019, to the final order on July 14, 2020. Identify the key events and decisions at each stage, including the initial hearing, the request for rehearing, and the final disposition.
4. Evaluate the strength of the Petitioner’s case. Focus specifically on the evidence he presented versus the evidence presented by the Association’s witnesses, Charles Mitchell and Arland Averell.
5. The Petitioner argued that the availability of only one tennis court when pickleball is in play constituted an “impediment of enjoyment rights.” Explain the Association’s counter-arguments and why the Administrative Law Judge ultimately found the Petitioner’s argument to be “unfounded” and “without merit.”
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The presiding official (Jenna Clark) at the Office of Administrative Hearings who reviews evidence, makes Findings of Fact and Conclusions of Law, and issues orders and decisions.
ARIZ. REV. STAT.
Abbreviation for the Arizona Revised Statutes, the laws enacted by the Arizona state legislature that regulate planned communities and govern the administrative hearing process.
Association
The Canyon Mesa Townhouse Association, a non-profit Arizona corporation serving as the property owner’s association for the development. In this case, it is the Respondent.
Board of Directors (Board)
The governing body of the Association, empowered by the CC&Rs and Articles of Incorporation to manage, maintain, and improve the Common Areas.
Burden of Proof
The obligation of a party in a trial (in this case, the Petitioner) to produce the degree of evidence required to prove their case. The standard required here was “preponderance of the evidence.”
CC&Rs (Covenants, Conditions, and Restrictions)
The governing documents that form an enforceable contract between the Association and each property owner, controlling property use within the development. The Restated Declaration was recorded on June 8, 2015.
Common Areas
Property within the development, such as the tennis courts, for the mutual benefit of all owners. The Association’s Board is granted authority to manage and improve these areas.
Department
The Arizona Department of Real Estate, the state agency authorized to receive and decide on petitions for hearings regarding disputes in planned communities.
Easement of use and enjoyment
A non-exclusive, perpetual right granted to every member of the Association to use and enjoy the Common Areas, as established in CC&Rs Article III, section 1.
OAH (Office of Administrative Hearings)
An independent state agency to which the Department refers cases for evidentiary hearings.
Petitioner
The party who filed the petition initiating the legal action. In this case, Werner A. Reis, a townhouse owner and member of the Association.
Preponderance of the evidence
The standard of proof in this case, defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and representing the “greater weight of the evidence.”
Respondent
The party against whom the petition is filed. In this case, the Canyon Mesa Townhouse Association.
Snowbird
A colloquial term used by the Petitioner to describe himself as an out-of-state retiree who resides in Arizona during the winter months.
Blog Post – 20F-H2019026-REL-RHG
5 Surprising Lessons from a Bizarre HOA Lawsuit Over a Pickleball Court
Introduction: The Battle for the Tennis Court
Disputes with a homeowner association (HOA) are a common feature of suburban life, often revolving around landscaping, paint colors, or parking. But when you combine the rigid world of HOA rules with the explosive popularity of pickleball, you get a conflict that is uniquely modern. In a real-life legal case from Sedona, Arizona, one homeowner took his HOA to court over the decision to add pickleball lines to one of the community’s two tennis courts.
What might seem like a minor neighborhood squabble became a formal legal challenge, complete with hearings, testimony, and an official judicial decision. The court documents from this case offer a surprisingly revealing look into community rules, personal grievances, and the peculiar nature of legal battles. More importantly, they reveal several counter-intuitive lessons for anyone living in a planned community.
——————————————————————————–
1. You Can Sue Over a Problem That Doesn’t Exist (But You Probably Won’t Win)
The core of the legal challenge was filed by Werner Reis, a new homeowner in the Canyon Mesa Townhouse Association. His complaint was over the modification of one of two community tennis courts to accommodate pickleball. The “crux” of his complaint was a concern over a possible future conflict: a hypothetical scenario where he might want to play two singles tennis matches while a large group of “outsiders” played a “raucous game of pickleball.”
This seems like a specific, if forward-thinking, concern. But the timeline and testimony revealed a truly bizarre situation. According to court records, Reis purchased his townhouse in November 2019 and filed his lawsuit on or about November 18, 2019—meaning he initiated a formal legal action within days or weeks of becoming a member of the community. Even more stunning was this fact from his own testimony:
Petitioner has not played tennis in “years.” As such, Petitioner has not yet found himself facing any such actual conflict.
The entire legal challenge—filed almost immediately upon moving in—was based on a hypothetical grievance for a sport the petitioner hadn’t even played in years. Unsurprisingly, the Administrative Law Judge found his argument “unfounded.” The lesson is clear: a legal claim based on “what if” is unlikely to succeed without any actual harm.
2. Your HOA’s Governing Documents Are a Legally Binding Contract
Many homeowners view their HOA’s rules as guidelines, but legally, they are a binding contract called Covenants, Conditions, and Restrictions (CC&Rs). When you buy a property, you agree to their terms.
In its defense, the HOA pointed directly to its governing documents. Article VI requires the Board to manage all recreational facilities, and Article II, section 1, gives it the explicit authority to “manage, maintain, repair, replace and improve the Common Areas” for the “general welfare and benefit of the Owners”—all without a member vote. This clause was the legal bedrock of the Board’s defense; in the eyes of the law, painting lines to accommodate a popular new sport is not a degradation of an amenity, but an improvement of it, squarely within the Board’s mandate.
The tennis courts are legally defined as “Common Areas.” This gave the Board the unambiguous right to paint new lines on them. This is an impactful takeaway for all homeowners: while you may feel a sense of personal ownership over shared amenities, the Board has broad, legally-defined powers to manage them for the entire community.
3. A Board’s Duty Is to Adapt to the Community’s Evolving Interests
The HOA Board’s decision wasn’t a whim; it was a response to a persistent community interest with a history. Testimony from a 20-year Board member, Arland Averell, revealed that in April 2019, the Board decided to reestablish a pickleball court “after several families requested they do so.” As a secondary benefit, the Board also saw it as a way to “generate additional revenue.”
But this wasn’t the community’s first foray into the sport. Court records show that back in 2015, the association had a pickleball court with taped lines, but it was damaged after only four months. This context is crucial. The 2019 decision to paint permanent lines was not just a reaction to new requests but an institutional lesson learned. It shows the Board was responding to a long-term, evolving interest and choosing a more durable solution, fulfilling its duty to adapt common resources to meet new demands.
4. An “Infringement” Requires an Actual Impediment
The petitioner’s legal argument was very specific. He claimed that adding pickleball “constitutes an infringement of tennis players’ right of use and enjoyment” and that having only one guaranteed tennis court is an “impediment of enjoyment rights.” He summarized his grievance with the line:
“Members have the right to play tennis unless pickleball is in play.”
However, the facts presented in court systematically dismantled this argument. The evidence showed:
• One of the two courts remained exclusively for tennis at all times.
• Both courts were still available for tennis on a first-come, first-served basis.
• The pickleball nets were portable and had to be detached at the end of play, leaving the court ready for tennis.
• Most critically, the petitioner himself testified that he had “never been denied access to the tennis courts at issue at any time.”
The judge determined that no violation occurred because the petitioner’s rights were never actually impeded. This reveals the critical legal distinction between an inconvenience and an infringement. The petitioner’s entire case rested on a hypothetical future inconvenience, but the law requires an actual, demonstrable impediment to rights. Since his own testimony confirmed one had never occurred, his claim was impossible to prove.
5. If You Demand a Rehearing, You Should Probably Show Up with an Argument
In a final, bizarre twist, the story doesn’t end with the initial ruling in February 2020. The petitioner filed a “REQUEST FOR REHEARING,” which the court granted, giving him a second chance to make his case.
To streamline the process, both parties agreed to skip a new evidentiary hearing and instead submit written “Closing Arguments” to the judge. The HOA’s legal team submitted a detailed, 17-page argument. What happened next was documented in the final court order:
OAH did not receive a closing argument from Petitioner.
The petitioner, who had initiated the entire legal process and successfully demanded a second chance, was given the final word. He had the opportunity to submit a closing argument that could have vindicated his entire complaint. Instead, he offered only silence. By ghosting his own rehearing, he left the judge with no choice but to conclude that he had once again “failed to sustain his burden of proof” and make the original ruling against him final.
——————————————————————————–
Conclusion: The Court of Community Opinion
This case is a fascinating lesson in the difference between a personal annoyance and an actual legal violation. It demonstrates that in the world of HOAs, feelings and hypothetical concerns carry little weight compared to the cold, hard text of the governing documents. Those documents give boards significant power, but also charge them with the difficult task of balancing the desires of all residents, not just the grievance of one.
As pickleball courts continue to replace shuffleboard courts and community gardens pop up in unused green spaces, this story leaves us with a critical question: As our communities change, how do we balance protecting the familiar traditions we love with making space for the new ones our neighbors are asking for?
Case Participants
Petitioner Side
Werner A Reis(petitioner) Appeared on his own behalf
Respondent Side
Edward O’Brien(attorney) Carpenter, Hazlewood, Delgado & Bolen, LLP Counsel for Canyon Mesa Townhouse Association
Mark Sall(attorney) Carpenter, Hazlewood, Delgado & Bolen, LLP Counsel for Canyon Mesa Townhouse Association (Also cited as Mark Sahl)
Charles Mitchell(board member, witness) Canyon Mesa Townhouse Association Current Director of the Association's Board
Arland Averell(board member, witness) Canyon Mesa Townhouse Association Served on the Board for the past twenty years
Neutral Parties
Jenna Clark(ALJ) OAH
Judy Lowe(commissioner) ADRE Commissioner of the Arizona Department of Real Estate
DGardner(department contact) ADRE Electronic contact for ADRE
c. serrano(staff) OAH Administrative staff/Clerk noted on document transmission
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
20F-H2019026-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2020-07-14
Administrative Law Judge
Jenna Clark
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Werner A Reis
Counsel
—
Respondent
Canyon Mesa Townhouse Association
Counsel
Edward O’Brien, Esq.
Alleged Violations
CC&Rs Article III, section 1
Outcome Summary
The Administrative Law Judge denied the Petitioner's claim (on rehearing) finding that the Canyon Mesa Townhouse Association did not violate CC&Rs Article III section 1 when its Board painted pickleball lines on one of the two existing tennis courts, as the Board acted within its authority to maintain and manage Common Areas, and members' nonexclusive perpetual easement rights were not infringed.
Why this result: Petitioner failed to prove by a preponderance of the evidence that the Association violated Article III section 1 of the CC&Rs. The undisputed facts showed the Association had authority to paint the lines, access was maintained for all members, and one tennis court was always available for tennis use.
Key Issues & Findings
Whether Canyon Mesa Townhouse Association violated community documents CC&Rs Article III, sec. 1.
Petitioner alleged the Association violated CC&Rs Article III section 1 by painting pickleball lines on one tennis court, arguing this constituted an infringement or impediment of enjoyment rights for tennis players by restricting use of the Common Area easement.
Orders: The Administrative Law Judge concluded that Petitioner failed to sustain the burden of proof that the Association violated CC&Rs Article III section 1, and the petition was denied. The Association's governing documents authorized the Board to maintain and manage Common Areas, and Petitioner's easement rights were not violated.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 33-1243
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Analytics Highlights
Topics: HOA Governance, Common Area Use, Easement Rights, CC&Rs Interpretation, Recreational Facilities, Pickleball
Additional Citations:
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. §§ 32-2199.01(A)
ARIZ. REV. STAT. §§ 32-2199.01(D)
ARIZ. REV. STAT. §§ 32-2199.02
ARIZ. REV. STAT. § 33-1243
ARIZ. REV. STAT. §§ 41-1092 et seq.
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Briefing Document: Reis v. Canyon Mesa Townhouse Association
Executive Summary
This document synthesizes the legal dispute between homeowner Werner A. Reis (Petitioner) and the Canyon Mesa Townhouse Association (Respondent) concerning the modification of a common area tennis court. The core of the dispute, adjudicated under case numbers 20F-H2019026-REL and 20F-H2019026-REL-RHG, was the Association’s decision in June 2019 to paint pickleball lines on one of its two community tennis courts. The Petitioner alleged this action violated Article III, section 1 of the community’s Covenants, Conditions, and Restrictions (CC&Rs), infringing upon his nonexclusive perpetual easement of use and enjoyment. The Association contended that its Board of Directors acted within its authority, as granted by the CC&Rs, to manage, maintain, and improve common areas for the benefit of all members.
Following an evidentiary hearing and a subsequent rehearing, Administrative Law Judge Jenna Clark ruled decisively in favor of the Association. The Judge found that the Petitioner failed to meet his burden of proof by a preponderance of the evidence. Key findings established that the Board was fully authorized to make the modification without a member vote, that tennis play was not restricted, and that the Petitioner’s easement rights were not violated. The Petitioner’s arguments, based on a potential future conflict rather than an actual experienced impediment, were deemed “unfounded” and “without merit.” The final order, issued on July 14, 2020, denied the petition, affirming the Association’s right to manage the recreational facilities in this manner.
——————————————————————————–
I. Case Overview
This matter involves a formal complaint by a homeowner against his townhouse association, brought before the Arizona Department of Real Estate and adjudicated by the Office of Administrative Hearings (OAH).
Whether the Canyon Mesa Townhouse Association violated community documents (CC&Rs Article III, section 1) by adding pickleball lines to one of two community tennis courts.
——————————————————————————–
II. Procedural History
The dispute progressed through a formal administrative hearing process, including a petition, a hearing, a decision, a request for rehearing, and a final order.
• November 18, 2019: Werner Reis files a single-issue petition with the Arizona Department of Real Estate.
• December 4, 2019: The Association files its ANSWER, denying all complaint items.
• January 31, 2020: An evidentiary hearing is held before ALJ Jenna Clark.
• February 20, 2020: The ALJ issues a decision denying the Petitioner’s petition, finding he failed to sustain his burden of proof.
• March 26, 2020: The Petitioner submits a REQUEST FOR REHEARING to the Department.
• April 22, 2020: The Department grants the Petitioner’s request for a rehearing.
• May 20, 2020: During a prehearing conference, both parties stipulate that no factual dispute exists and agree to adopt the prior hearing record and submit written closing arguments in lieu of a new hearing.
• June 24, 2020: Deadline for written closing arguments. The Association submits a 17-page argument; the OAH receives no closing argument from the Petitioner.
• July 14, 2020: The ALJ issues a final decision, again denying the petition and ordering that the initial decision from February be the final order in the matter.
——————————————————————————–
III. Analysis of the Dispute
The central conflict was the interpretation of the Association’s CC&Rs regarding the Board’s authority to modify common areas versus a member’s right to their use and enjoyment.
Petitioner’s Position (Werner A. Reis)
The Petitioner’s case was built on the premise that adding pickleball as a competing use for a tennis court fundamentally diminished the rights of tennis-playing members.
• Core Allegation: The Association violated Article III, section 1 of the CC&Rs, which grants every member a “nonexclusive perpetual easement of use and enjoyment in and to the Common Areas.”
• Argument on Infringement: The Petitioner argued the Association created a situation where “Members have the right to play tennis unless pickleball is in play,” which he claimed “constitutes an infringement of tennis players’ right of use and enjoyment.”
• Impediment of Enjoyment: He contended that reducing the number of exclusively available tennis courts from two to one amounts to “an impediment of enjoyment rights.”
• Creation of Competition: He accused the Association of “creating a new class of people” (pickleball players) who could access the courts, creating new competition for members on a first-come, first-served basis.
• Hypothetical Conflict: The “crux” of his complaint was the possible future conflict between his desire to play two singles matches simultaneously and up to sixteen “outsiders playing a raucous game of pickleball on the other designated tennis court.”
• Requested Remedy: The Petitioner requested an order requiring the Association to designate the courts for tennis playing only.
Respondent’s Position (Canyon Mesa Townhouse Association)
The Association defended its decision as a reasonable exercise of the Board’s authority to manage community property for the benefit of all residents.
• Board Authority: The Board asserted that its decision was permitted by Article II, section 1 of the CC&Rs, which grants it the authority to “manage, maintain, repair, replace and improve the Common Areas” without requiring a member vote. Article VI further requires the Board to maintain and manage recreational facilities.
• Benefit to Community: The decision was made to offer pickleball as an additional recreational feature to satisfy growing interest from owners, renters, and guests, and was also considered as a potential means to generate revenue.
• No Restriction of Use: The Association maintained that tennis play was not restricted. Both courts remained available seven days a week on a first-come, first-served basis, with no changes to the reservation system. One court remained available exclusively for tennis at all times.
• Nature of Modification: The modification involved painting lines and using portable nets, which must be detached after play. The permanent tennis nets on both courts remained in place.
——————————————————————————–
IV. Summary of Evidence and Testimony
Testimony from the Association’s representatives and the Petitioner established the key undisputed facts of the case.
Testimony for the Association (Charles Mitchell & Arland Averell)
• Board Authority Confirmed: Charles Mitchell, the Board Director, testified that CC&Rs Articles II and VI, along with the Association’s Articles of Incorporation, authorize the Board to manage and improve common areas, including painting lines on the tennis courts.
• Historical Context: Arland Averell, a 20-year Board member, explained that a taped pickleball court had existed in 2015 but was damaged. The Board decided in April 2019 to reestablish it with painted lines in response to requests from several families.
• Practical Use: Pickleball is generally played only by a few families, typically on Saturday mornings. When pickleball is being played on the modified court, the other tennis court is always available.
• No Denial of Access: Director Mitchell confirmed that the Petitioner had never been denied access to the tennis courts at any time.
Testimony of the Petitioner (Werner A. Reis)
• Recent Homeowner: The Petitioner described himself as a “snowbird” who had purchased his townhouse in November 2019, shortly before filing his complaint.
• Conflict is Hypothetical: He admitted that he “has not played tennis in ‘years'” and, as a result, “has not yet found himself facing any such actual conflict.”
• No Direct Observation: The Petitioner testified that he had not personally observed contemporaneous tennis and pickleball games being played. His concerns about safety and inconvenience were speculative.
——————————————————————————–
V. Administrative Law Judge’s Findings and Final Order
The Administrative Law Judge’s decisions consistently found the Petitioner’s arguments to be legally and factually unsupported.
Conclusions of Law
• Undisputed Facts: The Judge concluded that the material facts were not in dispute. The Association’s governing documents clearly authorize the Board to maintain, manage, and improve the Common Areas, including the recreational facilities.
• No Violation of Easement Rights: The ruling stated, “What the evidence of record reflects is that Petitioner’s easement rights have not been violated by the Association because the Board painted blue pickleball lines on one of two tennis courts.”
• Petitioner’s Arguments Dismissed: The Judge found the Petitioner’s arguments to be “unfounded” and “without merit.” Specifically, the claim that the availability of only one dedicated court was an “impediment of enjoyment rights” was rejected.
• Failure to Meet Burden of Proof: In both the initial decision and the final order, the Judge concluded that the “Petitioner has failed to sustain his burden of proof” by a preponderance of the evidence that the Association violated Article III, section 1 of the CC&Rs.
• Failure to Prosecute Rehearing: The final decision noted that the Petitioner “did not provide OAH with a closing argument in support of his request for rehearing.”
Final Disposition
IT IS ORDERED that Petitioner’s petition is denied.
The decision issued on July 14, 2020, affirmed the initial February 24, 2020, decision and was designated as the FINAL ORDER in the matter, binding on both parties.
Study Guide – 20F-H2019026-REL-RHG
Study Guide: Reis vs. Canyon Mesa Townhouse Association
Short-Answer Quiz
Instructions: Answer the following questions in two to three sentences, drawing exclusively from the information provided in the case documents.
1. What was the specific allegation made by the Petitioner, Werner A. Reis, in his petition filed on November 18, 2019?
2. On what grounds did the Canyon Mesa Townhouse Association’s Board of Directors justify its decision to add pickleball lines to a tennis court?
3. According to the testimony of Arland Averell, what prompted the Board to reestablish a pickleball court in April 2019, and what was a prior experience with a pickleball court?
4. Describe the central, or “crux,” of the Petitioner’s complaint as summarized in the hearing evidence.
5. What key admissions did the Petitioner make during his testimony regarding his own tennis activity and his personal experience with the alleged conflict?
6. According to Director Charles Mitchell’s testimony, what is the physical setup of the nets on the courts, and how does this differ between tennis and pickleball?
7. What was the legal standard of proof the Petitioner was required to meet, and how is that standard defined in the legal documents?
8. What was the outcome of the initial evidentiary hearing held on January 31, 2020, and on what basis did the Administrative Law Judge reach this conclusion?
9. Describe the procedural change that occurred for the rehearing after the parties’ prehearing conference on May 20, 2020.
10. What action, or lack thereof, by the Petitioner on June 24, 2020, contributed to the final ruling in the rehearing?
——————————————————————————–
Answer Key
1. The Petitioner alleged that the Association violated Article III, section 1 of the Covenants, Conditions, and Restrictions (CC&Rs). The specific violation claimed was the modification of one of the two existing tennis courts for use as a pickleball court.
2. The Association’s Board of Directors justified the decision as an improvement to the Common Areas for the benefit of the Association, which it was permitted to do under Article II, section 1 of the CC&Rs. The decision was made to offer pickleball as an additional recreational feature to satisfy growing interest from owners, renters, and guests.
3. Arland Averell testified that in April 2019, the Board decided to reestablish the pickleball court with painted lines after several families requested it, and the Board also saw it as a way to generate additional revenue. A previous pickleball court established in 2015 had lines made of tape which were damaged approximately four months after being applied.
4. The crux of the Petitioner’s complaint was the possible future conflict between his personal desire to play two singles tennis matches on both courts simultaneously and the potential for up to sixteen “outsiders” to be playing a “raucous game of pickleball” on the modified court.
5. The Petitioner admitted that he had not played tennis in “years” and, as a result, had never actually faced the conflict he was complaining about. He also stated he had never been denied access to the courts and had not observed contemporaneous games of tennis and pickleball being played.
6. Director Mitchell testified that both tennis courts have fixed tennis nets. The pickleball court, however, has portable nets which must be attached for use and then detached at the end of play.
7. The Petitioner was required to prove his case by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that the contention is more probably true than not, representing the greater weight of evidence.
8. Following the January 31, 2020, hearing, the Administrative Law Judge denied the Petitioner’s petition. The judge concluded that the Petitioner had failed to sustain his burden of proof and that the evidence showed his easement rights had not been violated, as one tennis court always remained available.
9. During the prehearing conference, the parties stipulated that no factual dispute existed. They agreed to vacate the scheduled rehearing, adopt the evidentiary record from the first hearing without presenting new evidence, and submit written closing arguments instead.
10. On the deadline of June 24, 2020, the Office of Administrative Hearings received a 17-page closing argument from the Respondent (the Association). The Petitioner, Werner A. Reis, failed to submit a closing argument, which was noted in the final decision denying his petition again.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for longer, essay-style responses. Formulate your answers by synthesizing information from across the case documents. Answers are not provided.
1. Analyze the conflict between the rights granted to members under CC&Rs Article III, section 1 (“easement of use and enjoyment”) and the powers granted to the Board under CC&Rs Article II, section 1 (“manage, maintain, repair, replace and improve the Common Areas”). How did the Administrative Law Judge resolve this apparent tension in the final decision?
2. Discuss the concept of the “burden of proof” as it applied in this case. Explain why Werner Reis’s testimony and arguments ultimately failed to meet the “preponderance of the evidence” standard.
3. Trace the procedural history of this case from the initial petition on November 18, 2019, to the final order on July 14, 2020. Identify the key events and decisions at each stage, including the initial hearing, the request for rehearing, and the final disposition.
4. Evaluate the strength of the Petitioner’s case. Focus specifically on the evidence he presented versus the evidence presented by the Association’s witnesses, Charles Mitchell and Arland Averell.
5. The Petitioner argued that the availability of only one tennis court when pickleball is in play constituted an “impediment of enjoyment rights.” Explain the Association’s counter-arguments and why the Administrative Law Judge ultimately found the Petitioner’s argument to be “unfounded” and “without merit.”
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The presiding official (Jenna Clark) at the Office of Administrative Hearings who reviews evidence, makes Findings of Fact and Conclusions of Law, and issues orders and decisions.
ARIZ. REV. STAT.
Abbreviation for the Arizona Revised Statutes, the laws enacted by the Arizona state legislature that regulate planned communities and govern the administrative hearing process.
Association
The Canyon Mesa Townhouse Association, a non-profit Arizona corporation serving as the property owner’s association for the development. In this case, it is the Respondent.
Board of Directors (Board)
The governing body of the Association, empowered by the CC&Rs and Articles of Incorporation to manage, maintain, and improve the Common Areas.
Burden of Proof
The obligation of a party in a trial (in this case, the Petitioner) to produce the degree of evidence required to prove their case. The standard required here was “preponderance of the evidence.”
CC&Rs (Covenants, Conditions, and Restrictions)
The governing documents that form an enforceable contract between the Association and each property owner, controlling property use within the development. The Restated Declaration was recorded on June 8, 2015.
Common Areas
Property within the development, such as the tennis courts, for the mutual benefit of all owners. The Association’s Board is granted authority to manage and improve these areas.
Department
The Arizona Department of Real Estate, the state agency authorized to receive and decide on petitions for hearings regarding disputes in planned communities.
Easement of use and enjoyment
A non-exclusive, perpetual right granted to every member of the Association to use and enjoy the Common Areas, as established in CC&Rs Article III, section 1.
OAH (Office of Administrative Hearings)
An independent state agency to which the Department refers cases for evidentiary hearings.
Petitioner
The party who filed the petition initiating the legal action. In this case, Werner A. Reis, a townhouse owner and member of the Association.
Preponderance of the evidence
The standard of proof in this case, defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and representing the “greater weight of the evidence.”
Respondent
The party against whom the petition is filed. In this case, the Canyon Mesa Townhouse Association.
Snowbird
A colloquial term used by the Petitioner to describe himself as an out-of-state retiree who resides in Arizona during the winter months.
Blog Post – 20F-H2019026-REL-RHG
5 Surprising Lessons from a Bizarre HOA Lawsuit Over a Pickleball Court
Introduction: The Battle for the Tennis Court
Disputes with a homeowner association (HOA) are a common feature of suburban life, often revolving around landscaping, paint colors, or parking. But when you combine the rigid world of HOA rules with the explosive popularity of pickleball, you get a conflict that is uniquely modern. In a real-life legal case from Sedona, Arizona, one homeowner took his HOA to court over the decision to add pickleball lines to one of the community’s two tennis courts.
What might seem like a minor neighborhood squabble became a formal legal challenge, complete with hearings, testimony, and an official judicial decision. The court documents from this case offer a surprisingly revealing look into community rules, personal grievances, and the peculiar nature of legal battles. More importantly, they reveal several counter-intuitive lessons for anyone living in a planned community.
——————————————————————————–
1. You Can Sue Over a Problem That Doesn’t Exist (But You Probably Won’t Win)
The core of the legal challenge was filed by Werner Reis, a new homeowner in the Canyon Mesa Townhouse Association. His complaint was over the modification of one of two community tennis courts to accommodate pickleball. The “crux” of his complaint was a concern over a possible future conflict: a hypothetical scenario where he might want to play two singles tennis matches while a large group of “outsiders” played a “raucous game of pickleball.”
This seems like a specific, if forward-thinking, concern. But the timeline and testimony revealed a truly bizarre situation. According to court records, Reis purchased his townhouse in November 2019 and filed his lawsuit on or about November 18, 2019—meaning he initiated a formal legal action within days or weeks of becoming a member of the community. Even more stunning was this fact from his own testimony:
Petitioner has not played tennis in “years.” As such, Petitioner has not yet found himself facing any such actual conflict.
The entire legal challenge—filed almost immediately upon moving in—was based on a hypothetical grievance for a sport the petitioner hadn’t even played in years. Unsurprisingly, the Administrative Law Judge found his argument “unfounded.” The lesson is clear: a legal claim based on “what if” is unlikely to succeed without any actual harm.
2. Your HOA’s Governing Documents Are a Legally Binding Contract
Many homeowners view their HOA’s rules as guidelines, but legally, they are a binding contract called Covenants, Conditions, and Restrictions (CC&Rs). When you buy a property, you agree to their terms.
In its defense, the HOA pointed directly to its governing documents. Article VI requires the Board to manage all recreational facilities, and Article II, section 1, gives it the explicit authority to “manage, maintain, repair, replace and improve the Common Areas” for the “general welfare and benefit of the Owners”—all without a member vote. This clause was the legal bedrock of the Board’s defense; in the eyes of the law, painting lines to accommodate a popular new sport is not a degradation of an amenity, but an improvement of it, squarely within the Board’s mandate.
The tennis courts are legally defined as “Common Areas.” This gave the Board the unambiguous right to paint new lines on them. This is an impactful takeaway for all homeowners: while you may feel a sense of personal ownership over shared amenities, the Board has broad, legally-defined powers to manage them for the entire community.
3. A Board’s Duty Is to Adapt to the Community’s Evolving Interests
The HOA Board’s decision wasn’t a whim; it was a response to a persistent community interest with a history. Testimony from a 20-year Board member, Arland Averell, revealed that in April 2019, the Board decided to reestablish a pickleball court “after several families requested they do so.” As a secondary benefit, the Board also saw it as a way to “generate additional revenue.”
But this wasn’t the community’s first foray into the sport. Court records show that back in 2015, the association had a pickleball court with taped lines, but it was damaged after only four months. This context is crucial. The 2019 decision to paint permanent lines was not just a reaction to new requests but an institutional lesson learned. It shows the Board was responding to a long-term, evolving interest and choosing a more durable solution, fulfilling its duty to adapt common resources to meet new demands.
4. An “Infringement” Requires an Actual Impediment
The petitioner’s legal argument was very specific. He claimed that adding pickleball “constitutes an infringement of tennis players’ right of use and enjoyment” and that having only one guaranteed tennis court is an “impediment of enjoyment rights.” He summarized his grievance with the line:
“Members have the right to play tennis unless pickleball is in play.”
However, the facts presented in court systematically dismantled this argument. The evidence showed:
• One of the two courts remained exclusively for tennis at all times.
• Both courts were still available for tennis on a first-come, first-served basis.
• The pickleball nets were portable and had to be detached at the end of play, leaving the court ready for tennis.
• Most critically, the petitioner himself testified that he had “never been denied access to the tennis courts at issue at any time.”
The judge determined that no violation occurred because the petitioner’s rights were never actually impeded. This reveals the critical legal distinction between an inconvenience and an infringement. The petitioner’s entire case rested on a hypothetical future inconvenience, but the law requires an actual, demonstrable impediment to rights. Since his own testimony confirmed one had never occurred, his claim was impossible to prove.
5. If You Demand a Rehearing, You Should Probably Show Up with an Argument
In a final, bizarre twist, the story doesn’t end with the initial ruling in February 2020. The petitioner filed a “REQUEST FOR REHEARING,” which the court granted, giving him a second chance to make his case.
To streamline the process, both parties agreed to skip a new evidentiary hearing and instead submit written “Closing Arguments” to the judge. The HOA’s legal team submitted a detailed, 17-page argument. What happened next was documented in the final court order:
OAH did not receive a closing argument from Petitioner.
The petitioner, who had initiated the entire legal process and successfully demanded a second chance, was given the final word. He had the opportunity to submit a closing argument that could have vindicated his entire complaint. Instead, he offered only silence. By ghosting his own rehearing, he left the judge with no choice but to conclude that he had once again “failed to sustain his burden of proof” and make the original ruling against him final.
——————————————————————————–
Conclusion: The Court of Community Opinion
This case is a fascinating lesson in the difference between a personal annoyance and an actual legal violation. It demonstrates that in the world of HOAs, feelings and hypothetical concerns carry little weight compared to the cold, hard text of the governing documents. Those documents give boards significant power, but also charge them with the difficult task of balancing the desires of all residents, not just the grievance of one.
As pickleball courts continue to replace shuffleboard courts and community gardens pop up in unused green spaces, this story leaves us with a critical question: As our communities change, how do we balance protecting the familiar traditions we love with making space for the new ones our neighbors are asking for?
Case Participants
Petitioner Side
Werner A Reis(petitioner) Appeared on his own behalf
Respondent Side
Edward O’Brien(attorney) Carpenter, Hazlewood, Delgado & Bolen, LLP Counsel for Canyon Mesa Townhouse Association
Mark Sall(attorney) Carpenter, Hazlewood, Delgado & Bolen, LLP Counsel for Canyon Mesa Townhouse Association (Also cited as Mark Sahl)
Charles Mitchell(board member, witness) Canyon Mesa Townhouse Association Current Director of the Association's Board
Arland Averell(board member, witness) Canyon Mesa Townhouse Association Served on the Board for the past twenty years
Neutral Parties
Jenna Clark(ALJ) OAH
Judy Lowe(commissioner) ADRE Commissioner of the Arizona Department of Real Estate
DGardner(department contact) ADRE Electronic contact for ADRE
c. serrano(staff) OAH Administrative staff/Clerk noted on document transmission
