The Administrative Law Judge concluded that the Association's conduct did not violate ARIZ. REV. STAT. § 33-1805 because the Petitioner did not prove by a preponderance of the evidence that the requested records were in existence and subject to disclosure.
Why this result: Petitioner failed to establish that the requested records (communications) were in existence and subject to disclosure.
Key Issues & Findings
Failing to fulfill Petitioner’s records request
Petitioner claimed the HOA failed to provide copies of all communications (written/electronic) related to information requests, open meeting law compliance, and changes to bylaws, arguing they were not exempt from disclosure under ARIZ. REV. STAT. § 33-1805(B). The HOA asserted no disclosable records existed.
Orders: Petitioner's petition and request for civil penalty are denied. Respondent shall not reimburse Petitioner's filing fee.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 33-1805
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.02(A)
Analytics Highlights
Topics: HOA Records Request, Records Disclosure, ARIZ. REV. STAT. 33-1805, Burden of Proof, Preponderance of Evidence
Additional Citations:
ARIZ. REV. STAT. § 33-1805
ARIZ. REV. STAT. § 32-2199 et al.
ARIZ. REV. STAT. § 32-2199.01
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092
Video Overview
Audio Overview
Decision Documents
21F-H2120006-REL Decision – 834142.pdf
Uploaded 2026-01-23T17:34:55 (147.6 KB)
Briefing Doc – 21F-H2120006-REL
Administrative Law Judge Decision: Kupel vs. Hidden Valley Association
Executive Summary
The Administrative Law Judge (ALJ) for the Arizona Office of Administrative Hearings denied a petition filed by homeowner Douglas E. Kupel against the Hidden Valley Association (HVA). The core of the dispute was Kupel’s allegation that HVA violated Arizona statute ARIZ. REV. STAT. § 33-1805 by failing to completely fulfill a comprehensive records request. While HVA provided its records retention policy and legal invoices, it withheld two categories of electronic and hard copy communications, claiming no such disclosable records existed.
Kupel argued that statements made in emails by HVA Board President Gary Freed—specifically that certain communications would be “filed as an HVA business record”—proved the existence of the requested records. HVA countered that this statement was a mistake on Freed’s part, resulting from an initial misunderstanding of retention requirements, and that no records subject to disclosure actually existed.
The ALJ ultimately concluded that Kupel failed to meet the “preponderance of the evidence” standard required to prove his claim. The judge found that the evidence presented was not sufficient to prove that the requested records existed and were being improperly withheld. Consequently, the petition was denied, and Kupel’s requests for reimbursement of his filing fee and the imposition of a civil penalty against HVA were also denied.
Case Overview
Case Name
Douglas E Kupel, Petitioner, vs. Hidden Valley Association, Respondent
Case Number
21F-H2120006-REL
Jurisdiction
Arizona Office of Administrative Hearings (OAH)
Presiding Judge
Administrative Law Judge Adam D. Stone
Hearing Date
October 22, 2020
Decision Date
October 30, 2020
Key Parties
Douglas E. Kupel (Petitioner), Hidden Valley Association (Respondent), Gary Freed (HVA Board President)
Core Dispute: The Records Request
The central issue of the hearing was whether the Hidden Valley Association violated ARIZ. REV. STAT. § 33-1805 by failing to fully comply with a records request submitted by Kupel on June 22, 2020. HVA, through its community manager HOAMCO, provided a partial response on July 1, 2020.
Breakdown of the Records Request:
• Request 1 (Fulfilled): A copy of the HVA records retention policy adopted on January 15, 2020.
• Request 2 (Denied): Copies of all communications (email and hard copy) to or from current and former HVA Board and committee members regarding “information requests or open meeting law compliance” from July 2019 to the present.
• Request 3 (Denied): Copies of all communications (email and hard copy) to or from current and former HVA Board and committee members regarding any proposed, discussed, or adopted changes to the Association bylaws from January 2019 to the present.
• Request 4 (Fulfilled): Copies of invoices, billing statements, and payment records for legal services associated with revisions to the Association bylaws from January 2019 to the present.
HVA and its President, Gary Freed, asserted that the denied communications were not subject to disclosure under the exceptions outlined in ARIZ. REV. STAT. § 33-1805(B).
Petitioner’s Position and Evidence (Douglas E. Kupel)
• Allegation: Kupel accused HVA of willfully failing to fulfill his request, alleging that non-exempt records did exist and should have been disclosed.
• Primary Evidence: Kupel submitted several email messages from HVA President Gary Freed which contained the statement: “This communication has been received, and will be filed as an HVA business record in the files maintained by HOAMCO for the benefit of HVA” or substantially similar language.
• Argument: Kupel testified that these emails proved the existence of communications that did not meet the statutory exclusions and, therefore, HVA had failed to fully respond to his request.
• Requested Relief:
1. An order compelling HVA to abide by ARIZ. REV. STAT. § 33-1805.
2. Reimbursement of the $500 filing fee.
3. The levying of a civil penalty against HVA.
Respondent’s Position and Evidence (Hidden Valley Association)
• Witness Testimony: HVA Board President Gary Freed testified on behalf of the association.
• Core Defense: Freed testified that based on HVA’s records retention policy and his understanding of open meeting laws, “no records existed which were subject to disclosure.”
• Explanation of Contested Emails: Freed explained that his prior email statements about filing all communications were a mistake. He testified that he initially believed all communications needed to be retained but later learned this was incorrect.
• Search Process: Freed admitted that neither he nor other board members conducted a one-by-one search of every single email. However, he testified that he “may have scanned his personal e-mail” and did not dismiss the petitioner’s request “out-of-hand.”
• Association Practices: Freed asserted that HVA business was conducted via open meetings, with the exception of a single emergency situation, implying that no discoverable email correspondence regarding official business would exist.
Administrative Law Judge’s Analysis and Conclusion
The ALJ’s decision rested on the legal standard of “preponderance of the evidence,” defined as proof convincing the trier of fact that a contention is more probably true than not. The petitioner, Kupel, bore the burden of meeting this standard.
• Evaluation of Evidence: The judge found Kupel’s primary argument unpersuasive. The decision states, “Essentially, Petitioner is claiming that there must be other records in existence because of the language that Mr. Freed used… This is not persuasive as there was no evidence presented by Petitioner to prove that the records were in existence.”
• Credibility of Testimony: The judge gave weight to Freed’s testimony that he had been mistaken about record-keeping protocols. The decision also noted that HVA’s official records retention policy, adopted six months prior to the request, specifically outlined which communications were to be kept.
• Lack of Proof: The judge concluded that Freed believed any documents that might have existed were subject to statutory exemptions and that all relevant business was conducted in open meetings. Ultimately, Kupel failed to provide sufficient proof that discoverable records actually existed.
• Final Ruling: The ALJ concluded that “the Association’s conduct, as outlined above, did not violate the charged provisions of ARIZ. REV. STAT. § 33-1805.”
Final Order
Based on the findings of fact and conclusions of law, the Administrative Law Judge issued the following orders:
Outcome
Petitioner’s Petition
Denied
Request for Civil Penalty
Denied
Reimbursement of Filing Fee
Denied (Respondent shall not reimburse Petitioner’s fee)
The decision is binding on the parties unless a request for rehearing is filed with the Commissioner of the Arizona Department of Real Estate within thirty days of the order’s service.
Study Guide – 21F-H2120006-REL
Study Guide: Kupel v. Hidden Valley Association, No. 21F-H2120006-REL
This study guide provides a review of the administrative hearing decision in the matter of Douglas E. Kupel versus the Hidden Valley Association. It includes a quiz with an answer key to test comprehension of the facts, a set of essay questions for deeper analysis, and a glossary of key terms.
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Quiz: Short-Answer Questions
Answer the following questions in 2-3 sentences based on the provided source document.
1. Who were the primary parties involved in this hearing, and what were their respective roles?
2. What was the specific violation alleged by the Petitioner in his petition to the Department of Real Estate?
3. What four categories of records did the Petitioner request from the Hidden Valley Association (HVA) on June 22, 2020?
4. Which parts of the Petitioner’s records request did the HVA fulfill, and which parts did it deny?
5. What was the Petitioner’s central piece of evidence to argue that the HVA was improperly withholding existing communications?
6. How did HVA Board President Gary Freed explain the discrepancy between his email statements and the association’s refusal to provide the requested communications?
7. What is the “preponderance of the evidence” standard, and which party was required to meet this standard?
8. According to Mr. Freed’s testimony, where was all official HVA business conducted?
9. What was the Administrative Law Judge’s final conclusion regarding the HVA’s conduct in this matter?
10. What three specific outcomes were mandated by the final ORDER issued on October 30, 2020?
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Answer Key
1. The primary parties were the Petitioner, Douglas E. Kupel, a property owner and member of the Hidden Valley Association, and the Respondent, the Hidden Valley Association (HVA). The Petitioner brought the complaint against the Respondent, alleging a violation of state law.
2. The Petitioner alleged that the Hidden Valley Association violated ARIZ. REV. STAT. § 33-1805 by failing to completely fulfill his records request. Specifically, he claimed the association improperly withheld communications records.
3. The Petitioner requested: (1) the records retention policy; (2) communications regarding information requests or open meeting law compliance; (3) communications regarding proposed changes to the association bylaws; and (4) legal invoices and payment records related to bylaw revisions.
4. The HVA fulfilled the request for the records retention policy and the legal invoices. It denied the two requests for communications between board and committee members, claiming the requested records were not subject to disclosure.
5. The Petitioner’s central evidence consisted of several emails from HVA Board President Gary Freed in which Mr. Freed stated, “[t]his communication has been received, and will be filed as an HVA business record.” The Petitioner argued this proved that such communications existed and were official records.
6. Mr. Freed testified that he was initially mistaken in his belief that all communications needed to be retained and that this was why he included that language in his emails. He clarified that based on the HVA’s records retention policy and open meeting laws, no disclosable records of the type requested existed.
7. “Preponderance of the evidence” is the standard of proof requiring the evidence to convince the trier of fact that a contention is more probably true than not. The Petitioner, Douglas E. Kupel, bore the burden of proving his case by this standard.
8. Mr. Freed testified that all HVA business was conducted via open meetings. He stated that there were no meetings conducted solely by email, with the exception of a single emergency situation.
9. The Administrative Law Judge concluded that the Petitioner failed to establish by a preponderance of the evidence that the HVA was in violation of ARIZ. REV. STAT. § 33-1805. The judge found the HVA’s conduct did not violate the charged statute.
10. The final ORDER (1) denied the Petitioner’s petition, (2) denied the Petitioner’s request for a civil penalty against the Respondent, and (3) ordered that the Respondent shall not be required to reimburse the Petitioner’s $500.00 filing fee.
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Essay Questions
The following questions are designed for in-depth analysis and discussion. Answers are not provided.
1. Analyze the legal arguments presented by both the Petitioner, Douglas E. Kupel, and the Respondent, Hidden Valley Association. How did each party use the evidence and ARIZ. REV. STAT. § 33-1805 to support their position?
2. Discuss the significance of the “preponderance of the evidence” standard in this case. Explain how the Administrative Law Judge determined that the Petitioner failed to meet this burden of proof.
3. Evaluate the testimony of HVA Board President Gary Freed. How did his explanations regarding his email statements and the association’s record-keeping practices influence the judge’s final decision?
4. Examine ARIZ. REV. STAT. § 33-1805(B), which outlines the exceptions for withholding records. Based on the case details, explain why the communications requested by the Petitioner were ultimately deemed non-disclosable or non-existent under this statute.
5. Describe the complete procedural history of the case, from the initial filing of the petition to the final order. Include key dates, entities involved (such as the Department of Real Estate and the Office of Administrative Hearings), and the final remedies sought by the Petitioner versus the actual outcome.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official who presides over administrative hearings and makes decisions on behalf of a government agency. In this case, the ALJ was Adam D. Stone.
ARIZ. REV. STAT. § 33-1805
The Arizona Revised Statute that governs the examination and disclosure of a homeowners’ association’s financial and other records by its members. It outlines the process for requests, a ten-business-day fulfillment window, and specific exemptions allowing an association to withhold certain records.
ARIZ. REV. STAT. § 32-2199.01(A)
The Arizona Revised Statute cited by the Petitioner that allows an administrative law judge to levy a civil penalty against a party found to be in violation of the law.
Burden of Proof
The obligation on a party in a legal case to provide sufficient evidence to prove their allegations. In this case, the Petitioner bore the burden of proof.
Covenants, Conditions, and Restrictions (CC&Rs)
The official governing documents that establish the rules and obligations for a homeowners’ association and its members.
Department of Real Estate (“Department”)
The Arizona state agency authorized to receive and decide petitions for hearings involving disputes between homeowners and their associations.
Hidden Valley Association (HVA)
The Respondent in the case; a homeowners’ association for the Hidden Valley Ranch subdivision in Prescott, Arizona, governed by CC&Rs and a Board of Directors.
HOAMCO
The company that served as the Community Manager for the Hidden Valley Association and initially responded to the Petitioner’s records request.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona to which the Department of Real Estate referred this matter for an evidentiary hearing.
Petitioner
The party who files a petition to initiate a legal proceeding. In this case, the Petitioner was Douglas E. Kupel, a homeowner and member of the HVA.
Preponderance of the Evidence
The standard of proof required in this hearing. 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, making the contention more probably true than not.
Respondent
The party against whom a petition is filed and who is required to respond to the allegations. In this case, the Respondent was the Hidden Valley Association.
Blog Post – 21F-H2120006-REL
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The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings in Arizona, concerning a dispute between Petitioner Douglas E. Kupel and the Hidden Valley Association (HVA), a homeowners’ association. The core issue of the hearing, held on October 22, 2020, was whether the HVA violated ARIZ. REV. STAT. § 33-1805 by failing to fulfill Kupel’s records request for communications regarding open meeting law compliance and bylaw changes. Petitioner Kupel argued that undisclosed records existed based on emails sent by HVA Board President Gary Freed, while Freed testified that no disclosable records existed due to statutory exceptions and a mistaken belief about record retention. Ultimately, the Administrative Law Judge denied the Petitioner’s claim, concluding that Kupel failed to prove by a preponderance of the evidence that the Association violated the statute, thereby also denying his request for reimbursement and civil penalties.
What are the legal requirements governing homeowner association record disclosure in Arizona?
What was the core dispute between the petitioner and the homeowner association?
How did the Administrative Law Judge decide the outcome of this specific case?
Audio Overview
Video Overview Video Overview
Mind Map Mind Map
Reports Reports
Flashcards Flashcards
Quiz Quiz
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Case Participants
Petitioner Side
Douglas E. Kupel(petitioner) Appeared on his own behalf
Respondent Side
Timothy Butterfield(HOA attorney) Hidden Valley Association Represented Respondent
Gary Freed(board member) Hidden Valley Association Hidden Valley Ranch Association Board President and witness for HVA
Mark K. Sahl(HOA attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Received service of the Order
Neutral Parties
Adam D. Stone(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate Recipient of the Administrative Law Judge Decision
ARIZ. REV. STAT. §§ 33-1804(A), 33-1804(B), 33-1804(F), and Association bylaws 2.3, 2.7, and 3.1
Outcome Summary
The Administrative Law Judge concluded that the Respondent HOA acted within the scope of its statutory authority during its April 02, 2020, annual meeting and elections, and denied the Petitioner's petition for failure to sustain the burden of proof regarding alleged statutory and bylaw violations.
Why this result: The ALJ found that notice of the meeting modification (to an online platform due to COVID-19) was timely and proper, and Petitioner's claimed denial of the right to speak was the result of user error of the online platform, not action by the Association. Furthermore, the decision to hold elections for all five open Board positions was deemed appropriate due to carryover vacancies resulting from a lack of quorum in the prior year (2019).
Key Issues & Findings
Alleged violations regarding Annual Meeting notice (change in venue), right to speak, proper call to order, and staggered board voting.
Petitioner filed a quadruple-issue petition alleging the Association violated statutes and bylaws concerning the April 02, 2020, annual meeting, specifically regarding insufficient notice for the venue change (due to COVID-19), denial of the right to speak (via online chat), improper chair delegation, and failure to stagger Board elections.
Orders: Petitioner’s petition is denied.
Filing fee: $2,000.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 33-1804(A)
ARIZ. REV. STAT. § 33-1804(B)
ARIZ. REV. STAT. § 33-1804(F)
ARIZ. REV. STAT. § 32-2199.05
ARIZ. ADMIN. CODE R4-9-117
Tierra Ranchos Homeowners Ass'n v. Kitchukov
Analytics Highlights
Topics: COVID-19, Virtual Meeting, Notice, Right to Speak, Elections, Bylaws, Quorum, User Error
Additional Citations:
ARIZ. REV. STAT. § 33-1804(A)
ARIZ. REV. STAT. § 33-1804(B)
ARIZ. REV. STAT. § 33-1804(F)
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199.02
ARIZ. ADMIN. CODE R4-9-117
Video Overview
Audio Overview
Decision Documents
20F-H2020061-REL Decision – 819907.pdf
Uploaded 2025-10-09T03:35:29 (149.3 KB)
Briefing Doc – 20F-H2020061-REL
Briefing Document: Paparazzo v. Coronado Ranch Community Association (Case No. 20F-H2020061-REL)
Executive Summary
This document synthesizes the findings from the Administrative Law Judge Decision in the matter of Samuel T. Paparazzo versus the Coronado Ranch Community Association. The central conclusion of the proceeding is the denial of the Petitioner’s claims. The Administrative Law Judge (ALJ) determined that the Petitioner failed to prove by a preponderance of the evidence that the Association violated Arizona state statutes or its own governing bylaws in the conduct of its April 2, 2020, annual meeting.
The critical takeaways from the decision are as follows:
• Meeting Format and Notice: The Association’s decision to move its annual meeting to a virtual platform (ClickMeeting) was deemed a lawful and appropriate response to the COVID-19 pandemic and the Arizona Governor’s related executive orders. The notification methods, which included physical signs and multiple emails, were found to be sufficient.
• Right to Speak: The Petitioner’s claim that he was denied the right to speak because he was “blocked” from the online chat feature was dismissed. The ALJ concluded the issue stemmed from “user error”—the Petitioner typed messages but failed to transmit them by pressing ‘enter’ or ‘send’. The fact that 26 other members successfully used the chat feature demonstrated its functionality.
• Meeting Conduct: The Association’s president properly called the meeting to order before delegating chairing responsibilities to the Association’s Managing Agent, an action the Petitioner conceded was within the president’s authority.
• Board Elections: The election of all five Board of Director positions simultaneously, rather than in staggered terms, was justified by unique circumstances. The Association’s 2019 annual meeting failed to achieve a quorum, preventing an election and resulting in a “carryover of open seats,” which necessitated filling all positions in the 2020 election.
Ultimately, the ALJ found that the Association and its Board acted within the scope of their statutory authority and that the challenges raised by the Petitioner were without merit.
I. Case Overview
This briefing analyzes the Administrative Law Judge Decision issued on September 3, 2020, following an evidentiary hearing held on August 18, 2020.
• Case Number: 20F-H2020061-REL
• Presiding Judge: Administrative Law Judge Jenna Clark
• Petitioner: Samuel T. Paparazzo (Homeowner and Association Member)
• Respondent: Coronado Ranch Community Association (HOA)
• Central Issue: The core of the dispute was whether the Coronado Ranch Community Association violated Arizona Revised Statutes and specific sections of its own bylaws during its annual meeting on April 2, 2020.
II. Petitioner’s Allegations
On May 15, 2020, Samuel Paparazzo filed a quadruple-issue petition alleging that the Association committed the following violations:
1. Improper Notice of Meeting: Providing less than 10-days’ notice regarding a “change in venue” for the annual meeting to only a small portion of the membership, in violation of ARIZ. REV. STAT. § 33-1804(B) and Association Bylaw 2.3.
2. Denial of Right to Speak: Preventing the Petitioner from exercising his right to speak by “blocking” or otherwise disabling his use of the online “chat feature” during the virtual meeting, in violation of ARIZ. REV. STAT. § 33-1804(A).
3. Improper Meeting Conduct: Failing to properly call the annual meeting to order, in violation of Association Bylaw 2.7.
4. Improper Board Election: Conducting the Board of Directors election without the “staggered” terms required by the bylaws, in violation of Association Bylaw 3.1.
III. Factual Chronology and Key Evidence
The decision outlines a clear sequence of events, heavily influenced by the onset of the COVID-19 pandemic.
Feb. 20, 2020
The Association issues its initial notice for the annual meeting, scheduled for April 2, 2020, at Coronado Elementary School.
Mar. 12, 2020
The Association mails election ballots to all Members.
Mar. 19, 2020
Arizona Governor Douglas Ducey issues Executive Order 2020-09, limiting certain business operations to slow the spread of COVID-19.
~Mar. 25, 2020
The Association’s President, Bob Hicks, officially moves the meeting to the virtual ClickMeeting platform.
Mar. 25 – Apr. 1
The Association notifies Members of the change via 12 signs at 6 community entrances and three separate email blasts to approximately 750 Members, which had an average open rate of 63.53%.
Mar. 30, 2020
Governor Ducey issues Executive Order 2020-18, the “Stay Home, Stay Healthy, Stay Connected” order.
Apr. 1, 2020
Two signs are placed at the entrance to the original meeting location, Coronado Elementary School, informing of the change.
Apr. 2, 2020
The Annual Meeting is held via ClickMeeting. • President Hicks calls the meeting to order and then appoints Managing Agent Kevin Bishop to chair the remainder of the meeting. • A quorum is achieved based on attendees and absentee ballots. • An election is held for all 5 open Board positions due to a lack of quorum at the 2019 meeting. • The Petitioner types messages in the chat window but fails to hit “enter” or click “send” to transmit them. He receives no response to an email for help sent during the meeting. • At least 26 other Members successfully use the chat feature.
IV. Analysis of Key Issues and Legal Conclusions
The Administrative Law Judge systematically addressed and dismissed each of the Petitioner’s four allegations, concluding that the Board acted lawfully and within its authority.
A. Meeting Notice and Venue Change
• Alleged Violation: ARIZ. REV. STAT. § 33-1804(B) and Bylaw 2.3 (Notice of Meetings).
• Finding: The petition was denied on this point. The ALJ concluded that the notice of the Association’s 2020 annual meeting was “timely and properly noticed.” The move to an online platform was not an arbitrary venue change but a necessary and reasonable measure to comply with the Governor’s executive orders related to the COVID-19 pandemic.
• Supporting Evidence:
◦ The Association made a multi-faceted effort to inform Members through physical signs and repeated emails.
◦ The Petitioner received notice of the modification and, crucially, “failed to raise an objection prior to or during the meeting at issue.”
◦ A Member’s attendance at a meeting waives objections to defective notice, as stated in Bylaw 2.3.
B. Right to Speak
• Alleged Violation: ARIZ. REV. STAT. § 33-1804(A) (Open Meetings and Member Participation).
• Finding: The petition was denied on this point. The ALJ determined the Petitioner’s inability to communicate during the meeting was the result of “user error” and not a deliberate act by the Association to silence him.
• Supporting Evidence:
◦ The Petitioner wrote messages but never finalized the action by hitting the “enter” key or clicking the “send” button.
◦ The chat feature was demonstrably functional, as it was “successfully used by no less than 26 other Members during the annual meeting.”
◦ The decision explicitly states, “The Association is not responsible for Petitioner’s lack of ClickMeeting proficiency.”
C. Conduct of Meeting
• Alleged Violation: Bylaw 2.7 (Organization and Conduct of Meeting).
• Finding: The petition was denied on this point. The meeting was lawfully conducted.
• Supporting Evidence:
◦ The Association President, Bob Hicks, called the meeting to order and took roll before appointing Managing Agent Kevin Bishop to chair the rest of the meeting.
◦ The Petitioner “conceded during cross-examination that President Hicks had the authority task Agent Bishop with chairing the annual meeting.”
D. Board of Directors Election
• Alleged Violation: Bylaw 3.1 (Number and Terms of Office).
• Finding: The petition was denied on this point. The election for all five Board seats was deemed “lawful and appropriate given the circumstances.”
• Supporting Evidence:
◦ The bylaw’s provision for staggered terms could not be implemented because the 2019 annual meeting lacked a quorum, which meant no election took place that year.
◦ This lack of a 2019 vote “resulted in a carryover of open seats,” necessitating a vote for all five Board positions in 2020.
◦ The Petitioner “admitted that it had not been possible for the Association to stagger Board electees in the 2020 vote because no quorum had been reached to vote in 2019.”
V. Final Order and Disposition
Based on the findings of fact and conclusions of law, the Administrative Law Judge issued a final order.
• Order: “IT IS ORDERED that Petitioner’s petition be denied.”
• Legal Standard: The Petitioner bore the burden of proving his case by a “preponderance of the evidence.” The ALJ concluded that the record did not establish any violations and that the Petitioner “failed to sustain his burden of proof in this matter.”
• Date of Order: The decision was issued on September 3, 2020.
Study Guide – 20F-H2020061-REL
Study Guide: Paparazzo v. Coronado Ranch Community Association
This guide is designed to review the key facts, legal arguments, and conclusions presented in the Administrative Law Judge Decision for case number 20F-H2020061-REL, Samuel T Paparazzo v. Coronado Ranch Community Association.
Short-Answer Quiz
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 were their roles?
2. What were the four specific allegations the Petitioner made against the Association regarding its Annual Meeting?
3. How did the Association notify its members of the change from an in-person meeting to a virtual one?
4. What was the legal justification for the Association’s decision to move the Annual Meeting to an online platform?
5. What evidence was presented to counter the Petitioner’s claim that he was “blocked” from using the online chat feature?
6. According to the Association’s bylaws, who has the authority to chair the annual meeting and delegate that responsibility?
7. Why did the 2020 Board of Directors election involve voting for all five open positions instead of being staggered?
8. What is the “preponderance of the evidence” standard, and who bore the burden of proof in this hearing?
9. What two key Arizona Revised Statutes (ARIZ. REV. STAT.) relate to member meeting notices and the right to speak?
10. What was the final order issued by the Administrative Law Judge, and what was the core reasoning behind it?
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Answer Key
1. The primary parties were Samuel T. Paparazzo, the Petitioner, who is a property owner and member of the Association, and the Coronado Ranch Community Association, the Respondent, which is the homeowners’ association for the subdivision. The Petitioner brought the complaint, and the Respondent defended its actions.
2. The Petitioner alleged that: (i) inadequate notice of the “change in venue” was given; (ii) he was denied his right to speak by being blocked from the online chat feature; (iii) the meeting was not properly called to order; and (iv) the Board of Directors vote was not properly “staggered.”
3. The Association notified members of the move to the ClickMeeting platform by placing 12 signs at 6 common entrances, sending three separate emails to approximately 750 members, and placing 2 signs at the entrance of the originally scheduled location, Coronado Elementary School.
4. The legal justification was the need to comply with executive orders issued by Arizona Governor Douglas Ducey (2020-09, 2020-12, and 2020-18) to slow the spread of COVID-19. The online platform was adopted to allow homeowners to safely access the meeting while adhering to physical distancing mandates.
5. The evidence showed that the Petitioner wrote messages but never hit the “enter” key or “send” button to transmit them. Furthermore, the record indicates that no less than 26 other members successfully used the chat feature during the meeting.
6. According to Bylaw Section 2.7, the President of the Association, Bob Hicks, has the authority to call the meeting to order and chair it. The Petitioner conceded during cross-examination that President Hicks had the authority to delegate the chairing of the meeting to the Association’s Managing Agent, Kevin Bishop.
7. The election involved all five positions because a quorum had not been achieved at the Association’s 2019 annual meeting. This lack of a quorum prevented a vote from taking place, resulting in a carryover of all open board seats to the 2020 election.
8. A “preponderance of the evidence” is the standard of proof required, meaning the evidence must be more probably true than not. In this proceeding, the Petitioner, Samuel Paparazzo, bore the burden of proving his allegations by this standard.
9. ARIZ. REV. STAT. § 33-1804(B) requires notice to be sent not fewer than 10 nor more than 50 days in advance of a meeting. ARIZ. REV. STAT. § 33-1804(A) ensures that all meetings are open to members and that members are permitted to attend and speak at an appropriate time.
10. The final order was that the Petitioner’s petition be denied. The judge reasoned that the Petitioner failed to sustain his burden of proof, as the evidence showed the Association’s actions were lawful and appropriate responses to the circumstances, and the Petitioner’s inability to participate was due to user error.
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Essay Questions
The following questions are designed for deeper analysis of the case. No answers are provided.
1. Analyze the role of the COVID-19 pandemic and the associated executive orders in the events of this case. How did these external factors influence the Association’s actions and the Administrative Law Judge’s final decision?
2. The judge concluded that the Petitioner’s inability to use the chat function was due to “user error.” Discuss the evidence that supports this conclusion and explore the legal line between an association’s responsibility to provide access and a member’s responsibility to utilize the provided tools correctly.
3. Explain the relationship between the Association’s governing documents (CC&Rs and Bylaws) and Arizona state law (ARIZ. REV. STAT.). How did the judge use both to evaluate the legality of the Association’s handling of the annual meeting and election?
4. The Petitioner argued that the online platform constituted a “change in venue” that required more extensive notice. Based on the judge’s decision, evaluate the legal merits of this argument in the context of a virtual meeting necessitated by a public health crisis.
5. Discuss the concept of “quorum” as it applied to both the 2019 and 2020 annual meetings. How did the failure to achieve quorum in one year directly impact the procedures and outcome of the election in the following year?
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Glossary of Key Terms
Definition from Context
Administrative Law Judge (ALJ)
An independent judicial officer (Jenna Clark in this case) from the Office of Administrative Hearings who conducts evidentiary hearings and issues decisions on matters referred by state agencies like the Department of Real Estate.
ARIZ. REV. STAT.
Abbreviation for Arizona Revised Statutes, the collection of laws for the state of Arizona. Title 33, Chapter 16, Article 1 specifically regulates planned communities (homeowners’ associations).
Association
The Coronado Ranch Community Association, the homeowners’ association for the residential development in Gilbert, Arizona. It is governed by its CC&Rs and overseen by a Board of Directors.
Bylaws
The governing documents of the Association that detail the structure of day-to-day governance, including voting processes, quorum requirements, meeting provisions, and other operating guidelines.
Covenants, Conditions, and Restrictions. These form an enforceable contract between the Association and each property owner, empowering the Association to control certain aspects of property use within the development.
Declarant Control Period
An initial period in an association’s history where the developer (the “Declarant”) controls the Board of Directors. In this case, this period ended for the Association in 2005.
Department
The Arizona Department of Real Estate, the state agency authorized by statute to receive and decide petitions for hearings from members of homeowners’ associations.
The Office of Administrative Hearings, an independent state agency that was referred this matter to conduct an evidentiary hearing and decide the case.
Petitioner
Samuel T. Paparazzo, the property owner and Association member who filed the petition with the Department, alleging violations by the Association.
Preponderance of the Evidence
The burden of proof required in this hearing. It is defined as proof that convinces the trier of fact that a contention is “more probably true than not,” representing the greater weight of evidence.
Quorum
The minimum number of members required to be present or represented by ballot for a meeting to be valid and for votes to be taken. The failure to achieve quorum at the 2019 meeting resulted in a carryover of open board seats.
Respondent
The Coronado Ranch Community Association, the party against whom the petition was filed. The Respondent denied all allegations and was represented by legal counsel.
Blog Post – 20F-H2020061-REL
He Sued His HOA Over a Virtual Meeting—The Judge’s Ruling Contains 4 Critical Lessons for Every Homeowner
Introduction: The New Battlefield for Neighborhood Disputes
Cast your mind back to the chaotic spring of 2020. The world was locking down, businesses were scrambling to go remote, and the delicate social contracts of our neighborhoods were fraying. For millions living in Homeowners’ Associations, this meant the abrupt cancellation of in-person meetings, replaced by a frantic pivot to unfamiliar virtual platforms. In this pressure cooker of uncertainty and technical glitches, minor grievances quickly escalated into major legal battles.
The case of Paparazzo vs. Coronado Ranch Community Association is a quintessential legal drama of that era. A frustrated homeowner, believing he was silenced and his rights ignored during a virtual meeting, took his HOA to court. The judge’s decision, however, serves as a powerful cautionary tale. It distills four surprising and impactful lessons that every homeowner should understand as community governance becomes increasingly digital.
1. The Takeaway: You Can’t Claim You Were Silenced If You Forgot to Hit ‘Send’
The petitioner, Samuel Paparazzo, leveled a serious charge: that the HOA had denied his right to speak by “blocking” him from using the online chat feature during the annual meeting. In his view, this was an intentional act of suppression.
The digital evidence, however, told a very different story. While Mr. Paparazzo had typed several messages, he had never actually transmitted them by hitting the “enter” key or clicking the “send” button. While he did email for assistance during the meeting without receiving a timely response, the court found the chat feature was fully functional, proven by the fact that at least 26 other members used it successfully. The judge’s ruling was a stark lesson in digital accountability:
Petitioner’s inability to effectively communicate with the Association during the annual meeting was the result of user error. … The Association is not responsible for Petitioner’s lack of ClickMeeting proficiency.
This establishes a critical precedent for our digital age. The analysis here goes beyond simple “user error.” It suggests that a baseline of digital literacy is becoming a prerequisite for effective civic participation. Courts may have little sympathy for claims of disenfranchisement that stem from a failure to master the basic tools of modern communication.
2. The Takeaway: An Emergency Can Justify Last-Minute Changes
Next, the petitioner challenged the HOA on procedural grounds—a classic move in community disputes. He argued that the association failed to provide proper notice for the virtual meeting. The HOA had correctly noticed its in-person meeting for April 2, 2020, back on February 20. But by late March, holding that meeting had become impossible.
The judge’s response to this claim is a masterclass in how legal “reasonableness” can override rigid bylaws during a crisis. The court noted the rapidly evolving timeline of the pandemic: Governor Ducey issued executive orders limiting business operations on March 19, prohibiting the closure of essential services on March 23, and issuing the “Stay Home” order on March 30. Faced with these superseding government mandates, the HOA moved the meeting online on March 25.
Crucially, the HOA’s communication efforts were extensive and documented. They didn’t just send a single email. The board notified its members by:
• Placing 12 signs at 6 common entrances to the community.
• Sending three separate email blasts to approximately 750 members, which had an average open rate of 63.53%.
• Placing 2 additional signs at the entrance to the originally scheduled location, Coronado Elementary School.
The judge concluded that the HOA’s actions were a justifiable response to an unprecedented emergency. This wasn’t a board ignoring its rules; it was a board taking necessary steps to comply with government orders and protect its members, legally justifying the short-notice change in format.
3. The Takeaway: Just Showing Up Can Waive Your Right to Complain
This lesson hinges on a legal concept every homeowner must understand: waiver by attendance. Buried in the association’s bylaws was Section 2.3, which states: “A Member’s attendance at a meeting waives objection to the lack of notice or defective notice of the meeting.”
This is not mere legalese; it’s a common and powerful clause designed to ensure the finality of meetings. It prevents a member from strategically attending a meeting, remaining silent about a potential procedural flaw, and then launching a lawsuit later if they don’t like the outcome. The judge noted that the petitioner attended the virtual meeting but did not object to the notice “prior to or during” the event. By participating without raising a formal objection at the time, he legally accepted the meeting’s procedures and waived his right to challenge them later.
4. The Takeaway: The Past Can Haunt the Present
The petitioner’s final major complaint appeared to be a slam dunk: the election for the Board of Directors was not “staggered” as explicitly required by Bylaws Section 3.1. Instead of a mix of one- and two-year terms to ensure continuity, all five open board positions were elected at once. On its face, this was a clear violation.
But the reason for this anomaly demonstrates the domino effect of governance. The judge found that in the previous year, 2019, the association had failed to achieve a quorum for its annual meeting. Because there was no quorum, no vote could occur, creating a “carryover of open seats.” This failure in 2019 created a governance debt that had to be paid in 2020. The only lawful way to do so was to elect members to all five vacant positions. This shows that an HOA is a continuous legal entity; one year’s procedural failure doesn’t just disappear—it creates unusual but legally necessary circumstances the next.
Conclusion: A Final Thought for the Digital Neighborhood
The case of Paparazzo vs. Coronado Ranch Community Association offers a clear and compelling look at the collision between established community rules, the new realities of digital life, and the chaos of unforeseen global events. It shows that while bylaws and statutes provide a framework, their application can be shaped by emergencies, past events, and even a single user’s technical skills.
As our communities increasingly operate online, who bears the greater responsibility for ensuring effective communication—the organization hosting the meeting, or the individual attending it?
Case Participants
Petitioner Side
Samuel Paparazzo(petitioner) Also referred to as Samuel T Paparazzo
Respondent Side
Mark Stahl(HOA attorney) Coronado Ranch Community Association Also spelled Mark Sahl in source
Timothy Butterfield(HOA attorney) Coronado Ranch Community Association
Kevin Bishop(community manager) Coronado Ranch Community Association Appeared as a witness for Respondent; Also referred to as 'Agent Bishop' and chaired part of the annual meeting
Bob Hicks(HOA Board President) Coronado Ranch Community Association Delegated chairing of the annual meeting
Neutral Parties
Jenna Clark(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
ARIZ. REV. STAT. §§ 33-1804(A), 33-1804(B), 33-1804(F), and Association bylaws 2.3, 2.7, and 3.1
Outcome Summary
The Administrative Law Judge concluded that the Respondent HOA acted within the scope of its statutory authority during its April 02, 2020, annual meeting and elections, and denied the Petitioner's petition for failure to sustain the burden of proof regarding alleged statutory and bylaw violations.
Why this result: The ALJ found that notice of the meeting modification (to an online platform due to COVID-19) was timely and proper, and Petitioner's claimed denial of the right to speak was the result of user error of the online platform, not action by the Association. Furthermore, the decision to hold elections for all five open Board positions was deemed appropriate due to carryover vacancies resulting from a lack of quorum in the prior year (2019).
Key Issues & Findings
Alleged violations regarding Annual Meeting notice (change in venue), right to speak, proper call to order, and staggered board voting.
Petitioner filed a quadruple-issue petition alleging the Association violated statutes and bylaws concerning the April 02, 2020, annual meeting, specifically regarding insufficient notice for the venue change (due to COVID-19), denial of the right to speak (via online chat), improper chair delegation, and failure to stagger Board elections.
Orders: Petitioner’s petition is denied.
Filing fee: $2,000.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 33-1804(A)
ARIZ. REV. STAT. § 33-1804(B)
ARIZ. REV. STAT. § 33-1804(F)
ARIZ. REV. STAT. § 32-2199.05
ARIZ. ADMIN. CODE R4-9-117
Tierra Ranchos Homeowners Ass'n v. Kitchukov
Analytics Highlights
Topics: COVID-19, Virtual Meeting, Notice, Right to Speak, Elections, Bylaws, Quorum, User Error
Additional Citations:
ARIZ. REV. STAT. § 33-1804(A)
ARIZ. REV. STAT. § 33-1804(B)
ARIZ. REV. STAT. § 33-1804(F)
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199.02
ARIZ. ADMIN. CODE R4-9-117
Video Overview
Audio Overview
Decision Documents
20F-H2020061-REL Decision – 819907.pdf
Uploaded 2026-01-23T17:33:45 (149.3 KB)
Briefing Doc – 20F-H2020061-REL
Briefing Document: Paparazzo v. Coronado Ranch Community Association (Case No. 20F-H2020061-REL)
Executive Summary
This document synthesizes the findings from the Administrative Law Judge Decision in the matter of Samuel T. Paparazzo versus the Coronado Ranch Community Association. The central conclusion of the proceeding is the denial of the Petitioner’s claims. The Administrative Law Judge (ALJ) determined that the Petitioner failed to prove by a preponderance of the evidence that the Association violated Arizona state statutes or its own governing bylaws in the conduct of its April 2, 2020, annual meeting.
The critical takeaways from the decision are as follows:
• Meeting Format and Notice: The Association’s decision to move its annual meeting to a virtual platform (ClickMeeting) was deemed a lawful and appropriate response to the COVID-19 pandemic and the Arizona Governor’s related executive orders. The notification methods, which included physical signs and multiple emails, were found to be sufficient.
• Right to Speak: The Petitioner’s claim that he was denied the right to speak because he was “blocked” from the online chat feature was dismissed. The ALJ concluded the issue stemmed from “user error”—the Petitioner typed messages but failed to transmit them by pressing ‘enter’ or ‘send’. The fact that 26 other members successfully used the chat feature demonstrated its functionality.
• Meeting Conduct: The Association’s president properly called the meeting to order before delegating chairing responsibilities to the Association’s Managing Agent, an action the Petitioner conceded was within the president’s authority.
• Board Elections: The election of all five Board of Director positions simultaneously, rather than in staggered terms, was justified by unique circumstances. The Association’s 2019 annual meeting failed to achieve a quorum, preventing an election and resulting in a “carryover of open seats,” which necessitated filling all positions in the 2020 election.
Ultimately, the ALJ found that the Association and its Board acted within the scope of their statutory authority and that the challenges raised by the Petitioner were without merit.
I. Case Overview
This briefing analyzes the Administrative Law Judge Decision issued on September 3, 2020, following an evidentiary hearing held on August 18, 2020.
• Case Number: 20F-H2020061-REL
• Presiding Judge: Administrative Law Judge Jenna Clark
• Petitioner: Samuel T. Paparazzo (Homeowner and Association Member)
• Respondent: Coronado Ranch Community Association (HOA)
• Central Issue: The core of the dispute was whether the Coronado Ranch Community Association violated Arizona Revised Statutes and specific sections of its own bylaws during its annual meeting on April 2, 2020.
II. Petitioner’s Allegations
On May 15, 2020, Samuel Paparazzo filed a quadruple-issue petition alleging that the Association committed the following violations:
1. Improper Notice of Meeting: Providing less than 10-days’ notice regarding a “change in venue” for the annual meeting to only a small portion of the membership, in violation of ARIZ. REV. STAT. § 33-1804(B) and Association Bylaw 2.3.
2. Denial of Right to Speak: Preventing the Petitioner from exercising his right to speak by “blocking” or otherwise disabling his use of the online “chat feature” during the virtual meeting, in violation of ARIZ. REV. STAT. § 33-1804(A).
3. Improper Meeting Conduct: Failing to properly call the annual meeting to order, in violation of Association Bylaw 2.7.
4. Improper Board Election: Conducting the Board of Directors election without the “staggered” terms required by the bylaws, in violation of Association Bylaw 3.1.
III. Factual Chronology and Key Evidence
The decision outlines a clear sequence of events, heavily influenced by the onset of the COVID-19 pandemic.
Feb. 20, 2020
The Association issues its initial notice for the annual meeting, scheduled for April 2, 2020, at Coronado Elementary School.
Mar. 12, 2020
The Association mails election ballots to all Members.
Mar. 19, 2020
Arizona Governor Douglas Ducey issues Executive Order 2020-09, limiting certain business operations to slow the spread of COVID-19.
~Mar. 25, 2020
The Association’s President, Bob Hicks, officially moves the meeting to the virtual ClickMeeting platform.
Mar. 25 – Apr. 1
The Association notifies Members of the change via 12 signs at 6 community entrances and three separate email blasts to approximately 750 Members, which had an average open rate of 63.53%.
Mar. 30, 2020
Governor Ducey issues Executive Order 2020-18, the “Stay Home, Stay Healthy, Stay Connected” order.
Apr. 1, 2020
Two signs are placed at the entrance to the original meeting location, Coronado Elementary School, informing of the change.
Apr. 2, 2020
The Annual Meeting is held via ClickMeeting. • President Hicks calls the meeting to order and then appoints Managing Agent Kevin Bishop to chair the remainder of the meeting. • A quorum is achieved based on attendees and absentee ballots. • An election is held for all 5 open Board positions due to a lack of quorum at the 2019 meeting. • The Petitioner types messages in the chat window but fails to hit “enter” or click “send” to transmit them. He receives no response to an email for help sent during the meeting. • At least 26 other Members successfully use the chat feature.
IV. Analysis of Key Issues and Legal Conclusions
The Administrative Law Judge systematically addressed and dismissed each of the Petitioner’s four allegations, concluding that the Board acted lawfully and within its authority.
A. Meeting Notice and Venue Change
• Alleged Violation: ARIZ. REV. STAT. § 33-1804(B) and Bylaw 2.3 (Notice of Meetings).
• Finding: The petition was denied on this point. The ALJ concluded that the notice of the Association’s 2020 annual meeting was “timely and properly noticed.” The move to an online platform was not an arbitrary venue change but a necessary and reasonable measure to comply with the Governor’s executive orders related to the COVID-19 pandemic.
• Supporting Evidence:
◦ The Association made a multi-faceted effort to inform Members through physical signs and repeated emails.
◦ The Petitioner received notice of the modification and, crucially, “failed to raise an objection prior to or during the meeting at issue.”
◦ A Member’s attendance at a meeting waives objections to defective notice, as stated in Bylaw 2.3.
B. Right to Speak
• Alleged Violation: ARIZ. REV. STAT. § 33-1804(A) (Open Meetings and Member Participation).
• Finding: The petition was denied on this point. The ALJ determined the Petitioner’s inability to communicate during the meeting was the result of “user error” and not a deliberate act by the Association to silence him.
• Supporting Evidence:
◦ The Petitioner wrote messages but never finalized the action by hitting the “enter” key or clicking the “send” button.
◦ The chat feature was demonstrably functional, as it was “successfully used by no less than 26 other Members during the annual meeting.”
◦ The decision explicitly states, “The Association is not responsible for Petitioner’s lack of ClickMeeting proficiency.”
C. Conduct of Meeting
• Alleged Violation: Bylaw 2.7 (Organization and Conduct of Meeting).
• Finding: The petition was denied on this point. The meeting was lawfully conducted.
• Supporting Evidence:
◦ The Association President, Bob Hicks, called the meeting to order and took roll before appointing Managing Agent Kevin Bishop to chair the rest of the meeting.
◦ The Petitioner “conceded during cross-examination that President Hicks had the authority task Agent Bishop with chairing the annual meeting.”
D. Board of Directors Election
• Alleged Violation: Bylaw 3.1 (Number and Terms of Office).
• Finding: The petition was denied on this point. The election for all five Board seats was deemed “lawful and appropriate given the circumstances.”
• Supporting Evidence:
◦ The bylaw’s provision for staggered terms could not be implemented because the 2019 annual meeting lacked a quorum, which meant no election took place that year.
◦ This lack of a 2019 vote “resulted in a carryover of open seats,” necessitating a vote for all five Board positions in 2020.
◦ The Petitioner “admitted that it had not been possible for the Association to stagger Board electees in the 2020 vote because no quorum had been reached to vote in 2019.”
V. Final Order and Disposition
Based on the findings of fact and conclusions of law, the Administrative Law Judge issued a final order.
• Order: “IT IS ORDERED that Petitioner’s petition be denied.”
• Legal Standard: The Petitioner bore the burden of proving his case by a “preponderance of the evidence.” The ALJ concluded that the record did not establish any violations and that the Petitioner “failed to sustain his burden of proof in this matter.”
• Date of Order: The decision was issued on September 3, 2020.
Study Guide – 20F-H2020061-REL
Study Guide: Paparazzo v. Coronado Ranch Community Association
This guide is designed to review the key facts, legal arguments, and conclusions presented in the Administrative Law Judge Decision for case number 20F-H2020061-REL, Samuel T Paparazzo v. Coronado Ranch Community Association.
Short-Answer Quiz
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 were their roles?
2. What were the four specific allegations the Petitioner made against the Association regarding its Annual Meeting?
3. How did the Association notify its members of the change from an in-person meeting to a virtual one?
4. What was the legal justification for the Association’s decision to move the Annual Meeting to an online platform?
5. What evidence was presented to counter the Petitioner’s claim that he was “blocked” from using the online chat feature?
6. According to the Association’s bylaws, who has the authority to chair the annual meeting and delegate that responsibility?
7. Why did the 2020 Board of Directors election involve voting for all five open positions instead of being staggered?
8. What is the “preponderance of the evidence” standard, and who bore the burden of proof in this hearing?
9. What two key Arizona Revised Statutes (ARIZ. REV. STAT.) relate to member meeting notices and the right to speak?
10. What was the final order issued by the Administrative Law Judge, and what was the core reasoning behind it?
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Answer Key
1. The primary parties were Samuel T. Paparazzo, the Petitioner, who is a property owner and member of the Association, and the Coronado Ranch Community Association, the Respondent, which is the homeowners’ association for the subdivision. The Petitioner brought the complaint, and the Respondent defended its actions.
2. The Petitioner alleged that: (i) inadequate notice of the “change in venue” was given; (ii) he was denied his right to speak by being blocked from the online chat feature; (iii) the meeting was not properly called to order; and (iv) the Board of Directors vote was not properly “staggered.”
3. The Association notified members of the move to the ClickMeeting platform by placing 12 signs at 6 common entrances, sending three separate emails to approximately 750 members, and placing 2 signs at the entrance of the originally scheduled location, Coronado Elementary School.
4. The legal justification was the need to comply with executive orders issued by Arizona Governor Douglas Ducey (2020-09, 2020-12, and 2020-18) to slow the spread of COVID-19. The online platform was adopted to allow homeowners to safely access the meeting while adhering to physical distancing mandates.
5. The evidence showed that the Petitioner wrote messages but never hit the “enter” key or “send” button to transmit them. Furthermore, the record indicates that no less than 26 other members successfully used the chat feature during the meeting.
6. According to Bylaw Section 2.7, the President of the Association, Bob Hicks, has the authority to call the meeting to order and chair it. The Petitioner conceded during cross-examination that President Hicks had the authority to delegate the chairing of the meeting to the Association’s Managing Agent, Kevin Bishop.
7. The election involved all five positions because a quorum had not been achieved at the Association’s 2019 annual meeting. This lack of a quorum prevented a vote from taking place, resulting in a carryover of all open board seats to the 2020 election.
8. A “preponderance of the evidence” is the standard of proof required, meaning the evidence must be more probably true than not. In this proceeding, the Petitioner, Samuel Paparazzo, bore the burden of proving his allegations by this standard.
9. ARIZ. REV. STAT. § 33-1804(B) requires notice to be sent not fewer than 10 nor more than 50 days in advance of a meeting. ARIZ. REV. STAT. § 33-1804(A) ensures that all meetings are open to members and that members are permitted to attend and speak at an appropriate time.
10. The final order was that the Petitioner’s petition be denied. The judge reasoned that the Petitioner failed to sustain his burden of proof, as the evidence showed the Association’s actions were lawful and appropriate responses to the circumstances, and the Petitioner’s inability to participate was due to user error.
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Essay Questions
The following questions are designed for deeper analysis of the case. No answers are provided.
1. Analyze the role of the COVID-19 pandemic and the associated executive orders in the events of this case. How did these external factors influence the Association’s actions and the Administrative Law Judge’s final decision?
2. The judge concluded that the Petitioner’s inability to use the chat function was due to “user error.” Discuss the evidence that supports this conclusion and explore the legal line between an association’s responsibility to provide access and a member’s responsibility to utilize the provided tools correctly.
3. Explain the relationship between the Association’s governing documents (CC&Rs and Bylaws) and Arizona state law (ARIZ. REV. STAT.). How did the judge use both to evaluate the legality of the Association’s handling of the annual meeting and election?
4. The Petitioner argued that the online platform constituted a “change in venue” that required more extensive notice. Based on the judge’s decision, evaluate the legal merits of this argument in the context of a virtual meeting necessitated by a public health crisis.
5. Discuss the concept of “quorum” as it applied to both the 2019 and 2020 annual meetings. How did the failure to achieve quorum in one year directly impact the procedures and outcome of the election in the following year?
——————————————————————————–
Glossary of Key Terms
Definition from Context
Administrative Law Judge (ALJ)
An independent judicial officer (Jenna Clark in this case) from the Office of Administrative Hearings who conducts evidentiary hearings and issues decisions on matters referred by state agencies like the Department of Real Estate.
ARIZ. REV. STAT.
Abbreviation for Arizona Revised Statutes, the collection of laws for the state of Arizona. Title 33, Chapter 16, Article 1 specifically regulates planned communities (homeowners’ associations).
Association
The Coronado Ranch Community Association, the homeowners’ association for the residential development in Gilbert, Arizona. It is governed by its CC&Rs and overseen by a Board of Directors.
Bylaws
The governing documents of the Association that detail the structure of day-to-day governance, including voting processes, quorum requirements, meeting provisions, and other operating guidelines.
Covenants, Conditions, and Restrictions. These form an enforceable contract between the Association and each property owner, empowering the Association to control certain aspects of property use within the development.
Declarant Control Period
An initial period in an association’s history where the developer (the “Declarant”) controls the Board of Directors. In this case, this period ended for the Association in 2005.
Department
The Arizona Department of Real Estate, the state agency authorized by statute to receive and decide petitions for hearings from members of homeowners’ associations.
The Office of Administrative Hearings, an independent state agency that was referred this matter to conduct an evidentiary hearing and decide the case.
Petitioner
Samuel T. Paparazzo, the property owner and Association member who filed the petition with the Department, alleging violations by the Association.
Preponderance of the Evidence
The burden of proof required in this hearing. It is defined as proof that convinces the trier of fact that a contention is “more probably true than not,” representing the greater weight of evidence.
Quorum
The minimum number of members required to be present or represented by ballot for a meeting to be valid and for votes to be taken. The failure to achieve quorum at the 2019 meeting resulted in a carryover of open board seats.
Respondent
The Coronado Ranch Community Association, the party against whom the petition was filed. The Respondent denied all allegations and was represented by legal counsel.
Blog Post – 20F-H2020061-REL
He Sued His HOA Over a Virtual Meeting—The Judge’s Ruling Contains 4 Critical Lessons for Every Homeowner
Introduction: The New Battlefield for Neighborhood Disputes
Cast your mind back to the chaotic spring of 2020. The world was locking down, businesses were scrambling to go remote, and the delicate social contracts of our neighborhoods were fraying. For millions living in Homeowners’ Associations, this meant the abrupt cancellation of in-person meetings, replaced by a frantic pivot to unfamiliar virtual platforms. In this pressure cooker of uncertainty and technical glitches, minor grievances quickly escalated into major legal battles.
The case of Paparazzo vs. Coronado Ranch Community Association is a quintessential legal drama of that era. A frustrated homeowner, believing he was silenced and his rights ignored during a virtual meeting, took his HOA to court. The judge’s decision, however, serves as a powerful cautionary tale. It distills four surprising and impactful lessons that every homeowner should understand as community governance becomes increasingly digital.
1. The Takeaway: You Can’t Claim You Were Silenced If You Forgot to Hit ‘Send’
The petitioner, Samuel Paparazzo, leveled a serious charge: that the HOA had denied his right to speak by “blocking” him from using the online chat feature during the annual meeting. In his view, this was an intentional act of suppression.
The digital evidence, however, told a very different story. While Mr. Paparazzo had typed several messages, he had never actually transmitted them by hitting the “enter” key or clicking the “send” button. While he did email for assistance during the meeting without receiving a timely response, the court found the chat feature was fully functional, proven by the fact that at least 26 other members used it successfully. The judge’s ruling was a stark lesson in digital accountability:
Petitioner’s inability to effectively communicate with the Association during the annual meeting was the result of user error. … The Association is not responsible for Petitioner’s lack of ClickMeeting proficiency.
This establishes a critical precedent for our digital age. The analysis here goes beyond simple “user error.” It suggests that a baseline of digital literacy is becoming a prerequisite for effective civic participation. Courts may have little sympathy for claims of disenfranchisement that stem from a failure to master the basic tools of modern communication.
2. The Takeaway: An Emergency Can Justify Last-Minute Changes
Next, the petitioner challenged the HOA on procedural grounds—a classic move in community disputes. He argued that the association failed to provide proper notice for the virtual meeting. The HOA had correctly noticed its in-person meeting for April 2, 2020, back on February 20. But by late March, holding that meeting had become impossible.
The judge’s response to this claim is a masterclass in how legal “reasonableness” can override rigid bylaws during a crisis. The court noted the rapidly evolving timeline of the pandemic: Governor Ducey issued executive orders limiting business operations on March 19, prohibiting the closure of essential services on March 23, and issuing the “Stay Home” order on March 30. Faced with these superseding government mandates, the HOA moved the meeting online on March 25.
Crucially, the HOA’s communication efforts were extensive and documented. They didn’t just send a single email. The board notified its members by:
• Placing 12 signs at 6 common entrances to the community.
• Sending three separate email blasts to approximately 750 members, which had an average open rate of 63.53%.
• Placing 2 additional signs at the entrance to the originally scheduled location, Coronado Elementary School.
The judge concluded that the HOA’s actions were a justifiable response to an unprecedented emergency. This wasn’t a board ignoring its rules; it was a board taking necessary steps to comply with government orders and protect its members, legally justifying the short-notice change in format.
3. The Takeaway: Just Showing Up Can Waive Your Right to Complain
This lesson hinges on a legal concept every homeowner must understand: waiver by attendance. Buried in the association’s bylaws was Section 2.3, which states: “A Member’s attendance at a meeting waives objection to the lack of notice or defective notice of the meeting.”
This is not mere legalese; it’s a common and powerful clause designed to ensure the finality of meetings. It prevents a member from strategically attending a meeting, remaining silent about a potential procedural flaw, and then launching a lawsuit later if they don’t like the outcome. The judge noted that the petitioner attended the virtual meeting but did not object to the notice “prior to or during” the event. By participating without raising a formal objection at the time, he legally accepted the meeting’s procedures and waived his right to challenge them later.
4. The Takeaway: The Past Can Haunt the Present
The petitioner’s final major complaint appeared to be a slam dunk: the election for the Board of Directors was not “staggered” as explicitly required by Bylaws Section 3.1. Instead of a mix of one- and two-year terms to ensure continuity, all five open board positions were elected at once. On its face, this was a clear violation.
But the reason for this anomaly demonstrates the domino effect of governance. The judge found that in the previous year, 2019, the association had failed to achieve a quorum for its annual meeting. Because there was no quorum, no vote could occur, creating a “carryover of open seats.” This failure in 2019 created a governance debt that had to be paid in 2020. The only lawful way to do so was to elect members to all five vacant positions. This shows that an HOA is a continuous legal entity; one year’s procedural failure doesn’t just disappear—it creates unusual but legally necessary circumstances the next.
Conclusion: A Final Thought for the Digital Neighborhood
The case of Paparazzo vs. Coronado Ranch Community Association offers a clear and compelling look at the collision between established community rules, the new realities of digital life, and the chaos of unforeseen global events. It shows that while bylaws and statutes provide a framework, their application can be shaped by emergencies, past events, and even a single user’s technical skills.
As our communities increasingly operate online, who bears the greater responsibility for ensuring effective communication—the organization hosting the meeting, or the individual attending it?
Case Participants
Petitioner Side
Samuel Paparazzo(petitioner) Also referred to as Samuel T Paparazzo
Respondent Side
Mark Stahl(HOA attorney) Coronado Ranch Community Association Also spelled Mark Sahl in source
Timothy Butterfield(HOA attorney) Coronado Ranch Community Association
Kevin Bishop(community manager) Coronado Ranch Community Association Appeared as a witness for Respondent; Also referred to as 'Agent Bishop' and chaired part of the annual meeting
Bob Hicks(HOA Board President) Coronado Ranch Community Association Delegated chairing of the annual meeting
Neutral Parties
Jenna Clark(ALJ) Office of Administrative Hearings
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.
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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?
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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.
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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?
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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.
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?
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Answer Key
1. The primary parties were Michael J Stoltenberg, the Petitioner, and the Rancho Del Oro Homeowners Association, the Respondent. Mr. Stoltenberg was a condominium owner and a member of the Association, which governed the residential development where he lived.
2. In his petition filed on March 2, 2020, Stoltenberg alleged the Association violated Section 14.8 of its CC&Rs and Arizona Revised Statutes §§ 10-3842 and 10-801. He specifically claimed the Association “fail to do their job, and are acting in bad faith.”
3. Beginning in November 2019, the Petitioner began sending his monthly assessment payments to the Association’s P.O. Box via restricted delivery from the United States Postal Service. He specified that the mail was for board member Rhea Carlisle’s pickup only, despite knowing she was a volunteer and not an employee of the property management company that handled mail.
4. The Association argued that Section 14.8 of the CC&Rs was inapplicable because it governs the Association’s notice obligations to its members. The judge agreed, stating the section has no binding authority over how homeowners send mail to the Association.
5. Each time the Petitioner’s monthly assessment was received late, he was assessed a late fee by the Association. Additionally, each late payment occurrence placed his residence in danger of foreclosure.
6. The Petitioner bore the burden of proving his case by a “preponderance of the evidence,” which means showing the contention is more probably true than not. The judge concluded in both decisions that the Petitioner failed to sustain this burden of proof.
7. The Petitioner requested a rehearing on the grounds that there was an alleged “Error in the admission or rejection of evidence or other errors of law occurring during the proceeding” and because “[t]he findings of fact or decision is arbitrary, capricious, or an abuse of discretion.”
8. The citation of ARIZ. REV. STAT. § 10-3842, which concerns standards of conduct for officers of nonprofit corporations, was dismissed because it falls outside the jurisdiction of the Arizona Department of Real Estate’s HOA Dispute Process. The Petitioner was advised of these jurisdictional limitations when he filed his petition.
9. The final ruling issued on March 8, 2021, denied the Petitioner’s petition once again. The judge affirmed the original findings, concluding there was no violation of Section 14.8 and that the Petitioner had not introduced any evidence to support his grounds for a rehearing.
10. After the final order resulting from the rehearing, the Petitioner’s only remaining recourse was to seek judicial review by filing an appeal with the superior court. This appeal had to be filed within thirty-five days from the date the order was served upon the parties.
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Essay Questions
Instructions: The following questions are designed for a more in-depth analysis. Formulate a comprehensive essay response for each prompt, using specific evidence and details from the source documents to support your arguments.
1. Analyze the legal reasoning of Administrative Law Judge Jenna Clark in her interpretation of Section 14.8 of the CC&Rs. Explain why this section was deemed inapplicable to the Petitioner’s situation and how this interpretation was central to the case’s outcome in both the hearing and rehearing.
2. Discuss the concept of “burden of proof” as it applied in this case. Explain who held the burden, what the “preponderance of the evidence” standard required, and why the Petitioner ultimately failed to meet this standard in the judgment of the court.
3. Trace the complete procedural history of this case, starting from the initial petition. Detail the key dates, filings (petition, answer, rehearing request), hearings, and decisions, explaining the significance of each step in the administrative legal process from March 2020 to March 2021.
4. Examine the actions of the Petitioner, Michael Stoltenberg, beginning in November 2019. Evaluate his rationale for unilaterally changing his payment method, the specific steps he took, and how his choices directly led to the late fees and risk of foreclosure he sought to avoid.
5. Explain the roles and jurisdictional limitations of the Arizona Department of Real Estate (the Department) and the Office of Administrative Hearings (OAH) in this dispute. Why were certain statutes cited by the Petitioner, such as those under Title 10 of the ARIZ. REV. STAT., dismissed by the court as being outside its purview?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge, in this case Jenna Clark, who presides over administrative hearings, reviews evidence, and issues decisions for state agencies.
Answer
The formal written response filed by the Respondent (the Association) on March 24, 2020, denying all items in the Petitioner’s complaint.
Arizona Department of Real Estate (Department)
The state agency authorized by statute to receive and decide petitions for hearings regarding disputes within homeowners’ associations in Arizona.
Arizona Revised Statutes (ARIZ. REV. STAT.)
The collection of laws enacted by the Arizona state legislature. Specific statutes were cited by the Petitioner and referenced by the court.
Association
The Rancho Del Oro Homeowners Association, a condominium association responsible for governing the real estate development and enforcing its CC&Rs.
Board of Directors (the Board)
The governing body that oversees the Homeowners Association.
Burden of Proof
The legal obligation of a party in a trial (in this case, the Petitioner) to produce evidence that proves the claims they have made against the other party.
An acronym for the Declaration of Covenants, Conditions and Restrictions. These are the governing legal documents that form an enforceable contract between the Association and each property owner.
Conclusions of Law
The section of the judge’s decision that applies legal principles and statutes to the established facts of the case to reach a final judgment.
Findings of Fact
The section of the judge’s decision that details the factual background, procedural history, and evidence presented during the hearing.
Hearing
A formal proceeding before an administrative law judge where parties present evidence and arguments. In this case, hearings were held on July 14, 2020, and February 16, 2021.
Jurisdiction
The official power to make legal decisions and judgments. The Department’s jurisdiction was limited and did not extend to disputes arising from Title 10 of the Arizona Revised Statutes.
Office of Administrative Hearings (OAH)
An independent state agency that provides administrative law judges to conduct hearings for other state agencies, ensuring impartiality.
The final, binding command issued by the judge at the conclusion of the decision. In this case, the order was to deny the Petitioner’s petition.
Petitioner
The party who initiates a legal action by filing a petition. In this case, Michael J Stoltenberg.
Petition
The formal legal document filed by the Petitioner on March 2, 2020, to initiate the hearing process with the Department.
Preponderance of the Evidence
The standard of proof in this civil administrative case. It is defined as evidence that is sufficient to incline a fair and impartial mind to one side of the issue rather than the other.
Rehearing
A second hearing granted to a party to re-examine the issues of a case, typically requested on grounds of legal error or an unjust decision. The Petitioner’s request for a rehearing was granted.
Respondent
The party against whom a petition is filed. In this case, the Rancho Del Oro Homeowners Association.
Restricted Delivery
A service offered by the United States Postal Service (USPS) that ensures mail is delivered only to a specific addressee or their authorized agent.
Statutory Agent
An individual or entity designated to receive legal notices and service of process on behalf of a corporation or association. For the Association, this was Diana Crites.
Blog Post – 20F-H2020049-REL
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20F-H2020049-REL-RHG
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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
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.
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.
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I. Case Overview
This matter involves a formal complaint by a homeowner against his townhouse association, brought before the Arizona Department of Real Estate and adjudicated by the Office of Administrative Hearings (OAH).
Whether the Canyon Mesa Townhouse Association violated community documents (CC&Rs Article III, section 1) by adding pickleball lines to one of two community tennis courts.
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II. Procedural History
The dispute progressed through a formal administrative hearing process, including a petition, a hearing, a decision, a request for rehearing, and a final order.
• November 18, 2019: Werner Reis files a single-issue petition with the Arizona Department of Real Estate.
• December 4, 2019: The Association files its ANSWER, denying all complaint items.
• January 31, 2020: An evidentiary hearing is held before ALJ Jenna Clark.
• February 20, 2020: The ALJ issues a decision denying the Petitioner’s petition, finding he failed to sustain his burden of proof.
• March 26, 2020: The Petitioner submits a REQUEST FOR REHEARING to the Department.
• April 22, 2020: The Department grants the Petitioner’s request for a rehearing.
• May 20, 2020: During a prehearing conference, both parties stipulate that no factual dispute exists and agree to adopt the prior hearing record and submit written closing arguments in lieu of a new hearing.
• June 24, 2020: Deadline for written closing arguments. The Association submits a 17-page argument; the OAH receives no closing argument from the Petitioner.
• July 14, 2020: The ALJ issues a final decision, again denying the petition and ordering that the initial decision from February be the final order in the matter.
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III. Analysis of the Dispute
The central conflict was the interpretation of the Association’s CC&Rs regarding the Board’s authority to modify common areas versus a member’s right to their use and enjoyment.
Petitioner’s Position (Werner A. Reis)
The Petitioner’s case was built on the premise that adding pickleball as a competing use for a tennis court fundamentally diminished the rights of tennis-playing members.
• Core Allegation: The Association violated Article III, section 1 of the CC&Rs, which grants every member a “nonexclusive perpetual easement of use and enjoyment in and to the Common Areas.”
• Argument on Infringement: The Petitioner argued the Association created a situation where “Members have the right to play tennis unless pickleball is in play,” which he claimed “constitutes an infringement of tennis players’ right of use and enjoyment.”
• Impediment of Enjoyment: He contended that reducing the number of exclusively available tennis courts from two to one amounts to “an impediment of enjoyment rights.”
• Creation of Competition: He accused the Association of “creating a new class of people” (pickleball players) who could access the courts, creating new competition for members on a first-come, first-served basis.
• Hypothetical Conflict: The “crux” of his complaint was the possible future conflict between his desire to play two singles matches simultaneously and up to sixteen “outsiders playing a raucous game of pickleball on the other designated tennis court.”
• Requested Remedy: The Petitioner requested an order requiring the Association to designate the courts for tennis playing only.
Respondent’s Position (Canyon Mesa Townhouse Association)
The Association defended its decision as a reasonable exercise of the Board’s authority to manage community property for the benefit of all residents.
• Board Authority: The Board asserted that its decision was permitted by Article II, section 1 of the CC&Rs, which grants it the authority to “manage, maintain, repair, replace and improve the Common Areas” without requiring a member vote. Article VI further requires the Board to maintain and manage recreational facilities.
• Benefit to Community: The decision was made to offer pickleball as an additional recreational feature to satisfy growing interest from owners, renters, and guests, and was also considered as a potential means to generate revenue.
• No Restriction of Use: The Association maintained that tennis play was not restricted. Both courts remained available seven days a week on a first-come, first-served basis, with no changes to the reservation system. One court remained available exclusively for tennis at all times.
• Nature of Modification: The modification involved painting lines and using portable nets, which must be detached after play. The permanent tennis nets on both courts remained in place.
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IV. Summary of Evidence and Testimony
Testimony from the Association’s representatives and the Petitioner established the key undisputed facts of the case.
Testimony for the Association (Charles Mitchell & Arland Averell)
• Board Authority Confirmed: Charles Mitchell, the Board Director, testified that CC&Rs Articles II and VI, along with the Association’s Articles of Incorporation, authorize the Board to manage and improve common areas, including painting lines on the tennis courts.
• Historical Context: Arland Averell, a 20-year Board member, explained that a taped pickleball court had existed in 2015 but was damaged. The Board decided in April 2019 to reestablish it with painted lines in response to requests from several families.
• Practical Use: Pickleball is generally played only by a few families, typically on Saturday mornings. When pickleball is being played on the modified court, the other tennis court is always available.
• No Denial of Access: Director Mitchell confirmed that the Petitioner had never been denied access to the tennis courts at any time.
Testimony of the Petitioner (Werner A. Reis)
• Recent Homeowner: The Petitioner described himself as a “snowbird” who had purchased his townhouse in November 2019, shortly before filing his complaint.
• Conflict is Hypothetical: He admitted that he “has not played tennis in ‘years'” and, as a result, “has not yet found himself facing any such actual conflict.”
• No Direct Observation: The Petitioner testified that he had not personally observed contemporaneous tennis and pickleball games being played. His concerns about safety and inconvenience were speculative.
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V. Administrative Law Judge’s Findings and Final Order
The Administrative Law Judge’s decisions consistently found the Petitioner’s arguments to be legally and factually unsupported.
Conclusions of Law
• Undisputed Facts: The Judge concluded that the material facts were not in dispute. The Association’s governing documents clearly authorize the Board to maintain, manage, and improve the Common Areas, including the recreational facilities.
• No Violation of Easement Rights: The ruling stated, “What the evidence of record reflects is that Petitioner’s easement rights have not been violated by the Association because the Board painted blue pickleball lines on one of two tennis courts.”
• Petitioner’s Arguments Dismissed: The Judge found the Petitioner’s arguments to be “unfounded” and “without merit.” Specifically, the claim that the availability of only one dedicated court was an “impediment of enjoyment rights” was rejected.
• Failure to Meet Burden of Proof: In both the initial decision and the final order, the Judge concluded that the “Petitioner has failed to sustain his burden of proof” by a preponderance of the evidence that the Association violated Article III, section 1 of the CC&Rs.
• Failure to Prosecute Rehearing: The final decision noted that the Petitioner “did not provide OAH with a closing argument in support of his request for rehearing.”
Final Disposition
IT IS ORDERED that Petitioner’s petition is denied.
The decision issued on July 14, 2020, affirmed the initial February 24, 2020, decision and was designated as the FINAL ORDER in the matter, binding on both parties.
Study Guide – 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?
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Answer Key
1. The Petitioner alleged that the Association violated Article III, section 1 of the Covenants, Conditions, and Restrictions (CC&Rs). The specific violation claimed was the modification of one of the two existing tennis courts for use as a pickleball court.
2. The Association’s Board of Directors justified the decision as an improvement to the Common Areas for the benefit of the Association, which it was permitted to do under Article II, section 1 of the CC&Rs. The decision was made to offer pickleball as an additional recreational feature to satisfy growing interest from owners, renters, and guests.
3. Arland Averell testified that in April 2019, the Board decided to reestablish the pickleball court with painted lines after several families requested it, and the Board also saw it as a way to generate additional revenue. A previous pickleball court established in 2015 had lines made of tape which were damaged approximately four months after being applied.
4. The crux of the Petitioner’s complaint was the possible future conflict between his personal desire to play two singles tennis matches on both courts simultaneously and the potential for up to sixteen “outsiders” to be playing a “raucous game of pickleball” on the modified court.
5. The Petitioner admitted that he had not played tennis in “years” and, as a result, had never actually faced the conflict he was complaining about. He also stated he had never been denied access to the courts and had not observed contemporaneous games of tennis and pickleball being played.
6. Director Mitchell testified that both tennis courts have fixed tennis nets. The pickleball court, however, has portable nets which must be attached for use and then detached at the end of play.
7. The Petitioner was required to prove his case by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that the contention is more probably true than not, representing the greater weight of evidence.
8. Following the January 31, 2020, hearing, the Administrative Law Judge denied the Petitioner’s petition. The judge concluded that the Petitioner had failed to sustain his burden of proof and that the evidence showed his easement rights had not been violated, as one tennis court always remained available.
9. During the prehearing conference, the parties stipulated that no factual dispute existed. They agreed to vacate the scheduled rehearing, adopt the evidentiary record from the first hearing without presenting new evidence, and submit written closing arguments instead.
10. On the deadline of June 24, 2020, the Office of Administrative Hearings received a 17-page closing argument from the Respondent (the Association). The Petitioner, Werner A. Reis, failed to submit a closing argument, which was noted in the final decision denying his petition again.
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Essay Questions
Instructions: The following questions are designed for longer, essay-style responses. Formulate your answers by synthesizing information from across the case documents. Answers are not provided.
1. Analyze the conflict between the rights granted to members under CC&Rs Article III, section 1 (“easement of use and enjoyment”) and the powers granted to the Board under CC&Rs Article II, section 1 (“manage, maintain, repair, replace and improve the Common Areas”). How did the Administrative Law Judge resolve this apparent tension in the final decision?
2. Discuss the concept of the “burden of proof” as it applied in this case. Explain why Werner Reis’s testimony and arguments ultimately failed to meet the “preponderance of the evidence” standard.
3. Trace the procedural history of this case from the initial petition on November 18, 2019, to the final order on July 14, 2020. Identify the key events and decisions at each stage, including the initial hearing, the request for rehearing, and the final disposition.
4. Evaluate the strength of the Petitioner’s case. Focus specifically on the evidence he presented versus the evidence presented by the Association’s witnesses, Charles Mitchell and Arland Averell.
5. The Petitioner argued that the availability of only one tennis court when pickleball is in play constituted an “impediment of enjoyment rights.” Explain the Association’s counter-arguments and why the Administrative Law Judge ultimately found the Petitioner’s argument to be “unfounded” and “without merit.”
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The presiding official (Jenna Clark) at the Office of Administrative Hearings who reviews evidence, makes Findings of Fact and Conclusions of Law, and issues orders and decisions.
ARIZ. REV. STAT.
Abbreviation for the Arizona Revised Statutes, the laws enacted by the Arizona state legislature that regulate planned communities and govern the administrative hearing process.
Association
The Canyon Mesa Townhouse Association, a non-profit Arizona corporation serving as the property owner’s association for the development. In this case, it is the Respondent.
Board of Directors (Board)
The governing body of the Association, empowered by the CC&Rs and Articles of Incorporation to manage, maintain, and improve the Common Areas.
Burden of Proof
The obligation of a party in a trial (in this case, the Petitioner) to produce the degree of evidence required to prove their case. The standard required here was “preponderance of the evidence.”
CC&Rs (Covenants, Conditions, and Restrictions)
The governing documents that form an enforceable contract between the Association and each property owner, controlling property use within the development. The Restated Declaration was recorded on June 8, 2015.
Common Areas
Property within the development, such as the tennis courts, for the mutual benefit of all owners. The Association’s Board is granted authority to manage and improve these areas.
Department
The Arizona Department of Real Estate, the state agency authorized to receive and decide on petitions for hearings regarding disputes in planned communities.
Easement of use and enjoyment
A non-exclusive, perpetual right granted to every member of the Association to use and enjoy the Common Areas, as established in CC&Rs Article III, section 1.
OAH (Office of Administrative Hearings)
An independent state agency to which the Department refers cases for evidentiary hearings.
Petitioner
The party who filed the petition initiating the legal action. In this case, Werner A. Reis, a townhouse owner and member of the Association.
Preponderance of the evidence
The standard of proof in this case, defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and representing the “greater weight of the evidence.”
Respondent
The party against whom the petition is filed. In this case, the Canyon Mesa Townhouse Association.
Snowbird
A colloquial term used by the Petitioner to describe himself as an out-of-state retiree who resides in Arizona during the winter months.
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.
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1. You Can Sue Over a Problem That Doesn’t Exist (But You Probably Won’t Win)
The core of the legal challenge was filed by Werner Reis, a new homeowner in the Canyon Mesa Townhouse Association. His complaint was over the modification of one of two community tennis courts to accommodate pickleball. The “crux” of his complaint was a concern over a possible future conflict: a hypothetical scenario where he might want to play two singles tennis matches while a large group of “outsiders” played a “raucous game of pickleball.”
This seems like a specific, if forward-thinking, concern. But the timeline and testimony revealed a truly bizarre situation. According to court records, Reis purchased his townhouse in November 2019 and filed his lawsuit on or about November 18, 2019—meaning he initiated a formal legal action within days or weeks of becoming a member of the community. Even more stunning was this fact from his own testimony:
Petitioner has not played tennis in “years.” As such, Petitioner has not yet found himself facing any such actual conflict.
The entire legal challenge—filed almost immediately upon moving in—was based on a hypothetical grievance for a sport the petitioner hadn’t even played in years. Unsurprisingly, the Administrative Law Judge found his argument “unfounded.” The lesson is clear: a legal claim based on “what if” is unlikely to succeed without any actual harm.
2. Your HOA’s Governing Documents Are a Legally Binding Contract
Many homeowners view their HOA’s rules as guidelines, but legally, they are a binding contract called Covenants, Conditions, and Restrictions (CC&Rs). When you buy a property, you agree to their terms.
In its defense, the HOA pointed directly to its governing documents. Article VI requires the Board to manage all recreational facilities, and Article II, section 1, gives it the explicit authority to “manage, maintain, repair, replace and improve the Common Areas” for the “general welfare and benefit of the Owners”—all without a member vote. This clause was the legal bedrock of the Board’s defense; in the eyes of the law, painting lines to accommodate a popular new sport is not a degradation of an amenity, but an improvement of it, squarely within the Board’s mandate.
The tennis courts are legally defined as “Common Areas.” This gave the Board the unambiguous right to paint new lines on them. This is an impactful takeaway for all homeowners: while you may feel a sense of personal ownership over shared amenities, the Board has broad, legally-defined powers to manage them for the entire community.
3. A Board’s Duty Is to Adapt to the Community’s Evolving Interests
The HOA Board’s decision wasn’t a whim; it was a response to a persistent community interest with a history. Testimony from a 20-year Board member, Arland Averell, revealed that in April 2019, the Board decided to reestablish a pickleball court “after several families requested they do so.” As a secondary benefit, the Board also saw it as a way to “generate additional revenue.”
But this wasn’t the community’s first foray into the sport. Court records show that back in 2015, the association had a pickleball court with taped lines, but it was damaged after only four months. This context is crucial. The 2019 decision to paint permanent lines was not just a reaction to new requests but an institutional lesson learned. It shows the Board was responding to a long-term, evolving interest and choosing a more durable solution, fulfilling its duty to adapt common resources to meet new demands.
4. An “Infringement” Requires an Actual Impediment
The petitioner’s legal argument was very specific. He claimed that adding pickleball “constitutes an infringement of tennis players’ right of use and enjoyment” and that having only one guaranteed tennis court is an “impediment of enjoyment rights.” He summarized his grievance with the line:
“Members have the right to play tennis unless pickleball is in play.”
However, the facts presented in court systematically dismantled this argument. The evidence showed:
• One of the two courts remained exclusively for tennis at all times.
• Both courts were still available for tennis on a first-come, first-served basis.
• The pickleball nets were portable and had to be detached at the end of play, leaving the court ready for tennis.
• Most critically, the petitioner himself testified that he had “never been denied access to the tennis courts at issue at any time.”
The judge determined that no violation occurred because the petitioner’s rights were never actually impeded. This reveals the critical legal distinction between an inconvenience and an infringement. The petitioner’s entire case rested on a hypothetical future inconvenience, but the law requires an actual, demonstrable impediment to rights. Since his own testimony confirmed one had never occurred, his claim was impossible to prove.
5. If You Demand a Rehearing, You Should Probably Show Up with an Argument
In a final, bizarre twist, the story doesn’t end with the initial ruling in February 2020. The petitioner filed a “REQUEST FOR REHEARING,” which the court granted, giving him a second chance to make his case.
To streamline the process, both parties agreed to skip a new evidentiary hearing and instead submit written “Closing Arguments” to the judge. The HOA’s legal team submitted a detailed, 17-page argument. What happened next was documented in the final court order:
OAH did not receive a closing argument from Petitioner.
The petitioner, who had initiated the entire legal process and successfully demanded a second chance, was given the final word. He had the opportunity to submit a closing argument that could have vindicated his entire complaint. Instead, he offered only silence. By ghosting his own rehearing, he left the judge with no choice but to conclude that he had once again “failed to sustain his burden of proof” and make the original ruling against him final.
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Conclusion: The Court of Community Opinion
This case is a fascinating lesson in the difference between a personal annoyance and an actual legal violation. It demonstrates that in the world of HOAs, feelings and hypothetical concerns carry little weight compared to the cold, hard text of the governing documents. Those documents give boards significant power, but also charge them with the difficult task of balancing the desires of all residents, not just the grievance of one.
As pickleball courts continue to replace shuffleboard courts and community gardens pop up in unused green spaces, this story leaves us with a critical question: As our communities change, how do we balance protecting the familiar traditions we love with making space for the new ones our neighbors are asking for?
Case Participants
Petitioner Side
Werner A Reis(petitioner) Appeared on his own behalf
Respondent Side
Edward O’Brien(attorney) Carpenter, Hazlewood, Delgado & Bolen, LLP Counsel for Canyon Mesa Townhouse Association
Mark Sall(attorney) Carpenter, Hazlewood, Delgado & Bolen, LLP Counsel for Canyon Mesa Townhouse Association (Also cited as Mark Sahl)
Charles Mitchell(board member, witness) Canyon Mesa Townhouse Association Current Director of the Association's Board
Arland Averell(board member, witness) Canyon Mesa Townhouse Association Served on the Board for the past twenty years
Neutral Parties
Jenna Clark(ALJ) OAH
Judy Lowe(commissioner) ADRE Commissioner of the Arizona Department of Real Estate
DGardner(department contact) ADRE Electronic contact for ADRE
c. serrano(staff) OAH Administrative staff/Clerk noted on document transmission
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.
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I. Case Overview
This matter involves a formal complaint by a homeowner against his townhouse association, brought before the Arizona Department of Real Estate and adjudicated by the Office of Administrative Hearings (OAH).
Whether the Canyon Mesa Townhouse Association violated community documents (CC&Rs Article III, section 1) by adding pickleball lines to one of two community tennis courts.
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II. Procedural History
The dispute progressed through a formal administrative hearing process, including a petition, a hearing, a decision, a request for rehearing, and a final order.
• November 18, 2019: Werner Reis files a single-issue petition with the Arizona Department of Real Estate.
• December 4, 2019: The Association files its ANSWER, denying all complaint items.
• January 31, 2020: An evidentiary hearing is held before ALJ Jenna Clark.
• February 20, 2020: The ALJ issues a decision denying the Petitioner’s petition, finding he failed to sustain his burden of proof.
• March 26, 2020: The Petitioner submits a REQUEST FOR REHEARING to the Department.
• April 22, 2020: The Department grants the Petitioner’s request for a rehearing.
• May 20, 2020: During a prehearing conference, both parties stipulate that no factual dispute exists and agree to adopt the prior hearing record and submit written closing arguments in lieu of a new hearing.
• June 24, 2020: Deadline for written closing arguments. The Association submits a 17-page argument; the OAH receives no closing argument from the Petitioner.
• July 14, 2020: The ALJ issues a final decision, again denying the petition and ordering that the initial decision from February be the final order in the matter.
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III. Analysis of the Dispute
The central conflict was the interpretation of the Association’s CC&Rs regarding the Board’s authority to modify common areas versus a member’s right to their use and enjoyment.
Petitioner’s Position (Werner A. Reis)
The Petitioner’s case was built on the premise that adding pickleball as a competing use for a tennis court fundamentally diminished the rights of tennis-playing members.
• Core Allegation: The Association violated Article III, section 1 of the CC&Rs, which grants every member a “nonexclusive perpetual easement of use and enjoyment in and to the Common Areas.”
• Argument on Infringement: The Petitioner argued the Association created a situation where “Members have the right to play tennis unless pickleball is in play,” which he claimed “constitutes an infringement of tennis players’ right of use and enjoyment.”
• Impediment of Enjoyment: He contended that reducing the number of exclusively available tennis courts from two to one amounts to “an impediment of enjoyment rights.”
• Creation of Competition: He accused the Association of “creating a new class of people” (pickleball players) who could access the courts, creating new competition for members on a first-come, first-served basis.
• Hypothetical Conflict: The “crux” of his complaint was the possible future conflict between his desire to play two singles matches simultaneously and up to sixteen “outsiders playing a raucous game of pickleball on the other designated tennis court.”
• Requested Remedy: The Petitioner requested an order requiring the Association to designate the courts for tennis playing only.
Respondent’s Position (Canyon Mesa Townhouse Association)
The Association defended its decision as a reasonable exercise of the Board’s authority to manage community property for the benefit of all residents.
• Board Authority: The Board asserted that its decision was permitted by Article II, section 1 of the CC&Rs, which grants it the authority to “manage, maintain, repair, replace and improve the Common Areas” without requiring a member vote. Article VI further requires the Board to maintain and manage recreational facilities.
• Benefit to Community: The decision was made to offer pickleball as an additional recreational feature to satisfy growing interest from owners, renters, and guests, and was also considered as a potential means to generate revenue.
• No Restriction of Use: The Association maintained that tennis play was not restricted. Both courts remained available seven days a week on a first-come, first-served basis, with no changes to the reservation system. One court remained available exclusively for tennis at all times.
• Nature of Modification: The modification involved painting lines and using portable nets, which must be detached after play. The permanent tennis nets on both courts remained in place.
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IV. Summary of Evidence and Testimony
Testimony from the Association’s representatives and the Petitioner established the key undisputed facts of the case.
Testimony for the Association (Charles Mitchell & Arland Averell)
• Board Authority Confirmed: Charles Mitchell, the Board Director, testified that CC&Rs Articles II and VI, along with the Association’s Articles of Incorporation, authorize the Board to manage and improve common areas, including painting lines on the tennis courts.
• Historical Context: Arland Averell, a 20-year Board member, explained that a taped pickleball court had existed in 2015 but was damaged. The Board decided in April 2019 to reestablish it with painted lines in response to requests from several families.
• Practical Use: Pickleball is generally played only by a few families, typically on Saturday mornings. When pickleball is being played on the modified court, the other tennis court is always available.
• No Denial of Access: Director Mitchell confirmed that the Petitioner had never been denied access to the tennis courts at any time.
Testimony of the Petitioner (Werner A. Reis)
• Recent Homeowner: The Petitioner described himself as a “snowbird” who had purchased his townhouse in November 2019, shortly before filing his complaint.
• Conflict is Hypothetical: He admitted that he “has not played tennis in ‘years'” and, as a result, “has not yet found himself facing any such actual conflict.”
• No Direct Observation: The Petitioner testified that he had not personally observed contemporaneous tennis and pickleball games being played. His concerns about safety and inconvenience were speculative.
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V. Administrative Law Judge’s Findings and Final Order
The Administrative Law Judge’s decisions consistently found the Petitioner’s arguments to be legally and factually unsupported.
Conclusions of Law
• Undisputed Facts: The Judge concluded that the material facts were not in dispute. The Association’s governing documents clearly authorize the Board to maintain, manage, and improve the Common Areas, including the recreational facilities.
• No Violation of Easement Rights: The ruling stated, “What the evidence of record reflects is that Petitioner’s easement rights have not been violated by the Association because the Board painted blue pickleball lines on one of two tennis courts.”
• Petitioner’s Arguments Dismissed: The Judge found the Petitioner’s arguments to be “unfounded” and “without merit.” Specifically, the claim that the availability of only one dedicated court was an “impediment of enjoyment rights” was rejected.
• Failure to Meet Burden of Proof: In both the initial decision and the final order, the Judge concluded that the “Petitioner has failed to sustain his burden of proof” by a preponderance of the evidence that the Association violated Article III, section 1 of the CC&Rs.
• Failure to Prosecute Rehearing: The final decision noted that the Petitioner “did not provide OAH with a closing argument in support of his request for rehearing.”
Final Disposition
IT IS ORDERED that Petitioner’s petition is denied.
The decision issued on July 14, 2020, affirmed the initial February 24, 2020, decision and was designated as the FINAL ORDER in the matter, binding on both parties.
Study Guide – 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?
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Answer Key
1. The Petitioner alleged that the Association violated Article III, section 1 of the Covenants, Conditions, and Restrictions (CC&Rs). The specific violation claimed was the modification of one of the two existing tennis courts for use as a pickleball court.
2. The Association’s Board of Directors justified the decision as an improvement to the Common Areas for the benefit of the Association, which it was permitted to do under Article II, section 1 of the CC&Rs. The decision was made to offer pickleball as an additional recreational feature to satisfy growing interest from owners, renters, and guests.
3. Arland Averell testified that in April 2019, the Board decided to reestablish the pickleball court with painted lines after several families requested it, and the Board also saw it as a way to generate additional revenue. A previous pickleball court established in 2015 had lines made of tape which were damaged approximately four months after being applied.
4. The crux of the Petitioner’s complaint was the possible future conflict between his personal desire to play two singles tennis matches on both courts simultaneously and the potential for up to sixteen “outsiders” to be playing a “raucous game of pickleball” on the modified court.
5. The Petitioner admitted that he had not played tennis in “years” and, as a result, had never actually faced the conflict he was complaining about. He also stated he had never been denied access to the courts and had not observed contemporaneous games of tennis and pickleball being played.
6. Director Mitchell testified that both tennis courts have fixed tennis nets. The pickleball court, however, has portable nets which must be attached for use and then detached at the end of play.
7. The Petitioner was required to prove his case by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that the contention is more probably true than not, representing the greater weight of evidence.
8. Following the January 31, 2020, hearing, the Administrative Law Judge denied the Petitioner’s petition. The judge concluded that the Petitioner had failed to sustain his burden of proof and that the evidence showed his easement rights had not been violated, as one tennis court always remained available.
9. During the prehearing conference, the parties stipulated that no factual dispute existed. They agreed to vacate the scheduled rehearing, adopt the evidentiary record from the first hearing without presenting new evidence, and submit written closing arguments instead.
10. On the deadline of June 24, 2020, the Office of Administrative Hearings received a 17-page closing argument from the Respondent (the Association). The Petitioner, Werner A. Reis, failed to submit a closing argument, which was noted in the final decision denying his petition again.
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Essay Questions
Instructions: The following questions are designed for longer, essay-style responses. Formulate your answers by synthesizing information from across the case documents. Answers are not provided.
1. Analyze the conflict between the rights granted to members under CC&Rs Article III, section 1 (“easement of use and enjoyment”) and the powers granted to the Board under CC&Rs Article II, section 1 (“manage, maintain, repair, replace and improve the Common Areas”). How did the Administrative Law Judge resolve this apparent tension in the final decision?
2. Discuss the concept of the “burden of proof” as it applied in this case. Explain why Werner Reis’s testimony and arguments ultimately failed to meet the “preponderance of the evidence” standard.
3. Trace the procedural history of this case from the initial petition on November 18, 2019, to the final order on July 14, 2020. Identify the key events and decisions at each stage, including the initial hearing, the request for rehearing, and the final disposition.
4. Evaluate the strength of the Petitioner’s case. Focus specifically on the evidence he presented versus the evidence presented by the Association’s witnesses, Charles Mitchell and Arland Averell.
5. The Petitioner argued that the availability of only one tennis court when pickleball is in play constituted an “impediment of enjoyment rights.” Explain the Association’s counter-arguments and why the Administrative Law Judge ultimately found the Petitioner’s argument to be “unfounded” and “without merit.”
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The presiding official (Jenna Clark) at the Office of Administrative Hearings who reviews evidence, makes Findings of Fact and Conclusions of Law, and issues orders and decisions.
ARIZ. REV. STAT.
Abbreviation for the Arizona Revised Statutes, the laws enacted by the Arizona state legislature that regulate planned communities and govern the administrative hearing process.
Association
The Canyon Mesa Townhouse Association, a non-profit Arizona corporation serving as the property owner’s association for the development. In this case, it is the Respondent.
Board of Directors (Board)
The governing body of the Association, empowered by the CC&Rs and Articles of Incorporation to manage, maintain, and improve the Common Areas.
Burden of Proof
The obligation of a party in a trial (in this case, the Petitioner) to produce the degree of evidence required to prove their case. The standard required here was “preponderance of the evidence.”
CC&Rs (Covenants, Conditions, and Restrictions)
The governing documents that form an enforceable contract between the Association and each property owner, controlling property use within the development. The Restated Declaration was recorded on June 8, 2015.
Common Areas
Property within the development, such as the tennis courts, for the mutual benefit of all owners. The Association’s Board is granted authority to manage and improve these areas.
Department
The Arizona Department of Real Estate, the state agency authorized to receive and decide on petitions for hearings regarding disputes in planned communities.
Easement of use and enjoyment
A non-exclusive, perpetual right granted to every member of the Association to use and enjoy the Common Areas, as established in CC&Rs Article III, section 1.
OAH (Office of Administrative Hearings)
An independent state agency to which the Department refers cases for evidentiary hearings.
Petitioner
The party who filed the petition initiating the legal action. In this case, Werner A. Reis, a townhouse owner and member of the Association.
Preponderance of the evidence
The standard of proof in this case, defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and representing the “greater weight of the evidence.”
Respondent
The party against whom the petition is filed. In this case, the Canyon Mesa Townhouse Association.
Snowbird
A colloquial term used by the Petitioner to describe himself as an out-of-state retiree who resides in Arizona during the winter months.
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.
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1. You Can Sue Over a Problem That Doesn’t Exist (But You Probably Won’t Win)
The core of the legal challenge was filed by Werner Reis, a new homeowner in the Canyon Mesa Townhouse Association. His complaint was over the modification of one of two community tennis courts to accommodate pickleball. The “crux” of his complaint was a concern over a possible future conflict: a hypothetical scenario where he might want to play two singles tennis matches while a large group of “outsiders” played a “raucous game of pickleball.”
This seems like a specific, if forward-thinking, concern. But the timeline and testimony revealed a truly bizarre situation. According to court records, Reis purchased his townhouse in November 2019 and filed his lawsuit on or about November 18, 2019—meaning he initiated a formal legal action within days or weeks of becoming a member of the community. Even more stunning was this fact from his own testimony:
Petitioner has not played tennis in “years.” As such, Petitioner has not yet found himself facing any such actual conflict.
The entire legal challenge—filed almost immediately upon moving in—was based on a hypothetical grievance for a sport the petitioner hadn’t even played in years. Unsurprisingly, the Administrative Law Judge found his argument “unfounded.” The lesson is clear: a legal claim based on “what if” is unlikely to succeed without any actual harm.
2. Your HOA’s Governing Documents Are a Legally Binding Contract
Many homeowners view their HOA’s rules as guidelines, but legally, they are a binding contract called Covenants, Conditions, and Restrictions (CC&Rs). When you buy a property, you agree to their terms.
In its defense, the HOA pointed directly to its governing documents. Article VI requires the Board to manage all recreational facilities, and Article II, section 1, gives it the explicit authority to “manage, maintain, repair, replace and improve the Common Areas” for the “general welfare and benefit of the Owners”—all without a member vote. This clause was the legal bedrock of the Board’s defense; in the eyes of the law, painting lines to accommodate a popular new sport is not a degradation of an amenity, but an improvement of it, squarely within the Board’s mandate.
The tennis courts are legally defined as “Common Areas.” This gave the Board the unambiguous right to paint new lines on them. This is an impactful takeaway for all homeowners: while you may feel a sense of personal ownership over shared amenities, the Board has broad, legally-defined powers to manage them for the entire community.
3. A Board’s Duty Is to Adapt to the Community’s Evolving Interests
The HOA Board’s decision wasn’t a whim; it was a response to a persistent community interest with a history. Testimony from a 20-year Board member, Arland Averell, revealed that in April 2019, the Board decided to reestablish a pickleball court “after several families requested they do so.” As a secondary benefit, the Board also saw it as a way to “generate additional revenue.”
But this wasn’t the community’s first foray into the sport. Court records show that back in 2015, the association had a pickleball court with taped lines, but it was damaged after only four months. This context is crucial. The 2019 decision to paint permanent lines was not just a reaction to new requests but an institutional lesson learned. It shows the Board was responding to a long-term, evolving interest and choosing a more durable solution, fulfilling its duty to adapt common resources to meet new demands.
4. An “Infringement” Requires an Actual Impediment
The petitioner’s legal argument was very specific. He claimed that adding pickleball “constitutes an infringement of tennis players’ right of use and enjoyment” and that having only one guaranteed tennis court is an “impediment of enjoyment rights.” He summarized his grievance with the line:
“Members have the right to play tennis unless pickleball is in play.”
However, the facts presented in court systematically dismantled this argument. The evidence showed:
• One of the two courts remained exclusively for tennis at all times.
• Both courts were still available for tennis on a first-come, first-served basis.
• The pickleball nets were portable and had to be detached at the end of play, leaving the court ready for tennis.
• Most critically, the petitioner himself testified that he had “never been denied access to the tennis courts at issue at any time.”
The judge determined that no violation occurred because the petitioner’s rights were never actually impeded. This reveals the critical legal distinction between an inconvenience and an infringement. The petitioner’s entire case rested on a hypothetical future inconvenience, but the law requires an actual, demonstrable impediment to rights. Since his own testimony confirmed one had never occurred, his claim was impossible to prove.
5. If You Demand a Rehearing, You Should Probably Show Up with an Argument
In a final, bizarre twist, the story doesn’t end with the initial ruling in February 2020. The petitioner filed a “REQUEST FOR REHEARING,” which the court granted, giving him a second chance to make his case.
To streamline the process, both parties agreed to skip a new evidentiary hearing and instead submit written “Closing Arguments” to the judge. The HOA’s legal team submitted a detailed, 17-page argument. What happened next was documented in the final court order:
OAH did not receive a closing argument from Petitioner.
The petitioner, who had initiated the entire legal process and successfully demanded a second chance, was given the final word. He had the opportunity to submit a closing argument that could have vindicated his entire complaint. Instead, he offered only silence. By ghosting his own rehearing, he left the judge with no choice but to conclude that he had once again “failed to sustain his burden of proof” and make the original ruling against him final.
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Conclusion: The Court of Community Opinion
This case is a fascinating lesson in the difference between a personal annoyance and an actual legal violation. It demonstrates that in the world of HOAs, feelings and hypothetical concerns carry little weight compared to the cold, hard text of the governing documents. Those documents give boards significant power, but also charge them with the difficult task of balancing the desires of all residents, not just the grievance of one.
As pickleball courts continue to replace shuffleboard courts and community gardens pop up in unused green spaces, this story leaves us with a critical question: As our communities change, how do we balance protecting the familiar traditions we love with making space for the new ones our neighbors are asking for?
Case Participants
Petitioner Side
Werner A Reis(petitioner) Appeared on his own behalf
Respondent Side
Edward O’Brien(attorney) Carpenter, Hazlewood, Delgado & Bolen, LLP Counsel for Canyon Mesa Townhouse Association
Mark Sall(attorney) Carpenter, Hazlewood, Delgado & Bolen, LLP Counsel for Canyon Mesa Townhouse Association (Also cited as Mark Sahl)
Charles Mitchell(board member, witness) Canyon Mesa Townhouse Association Current Director of the Association's Board
Arland Averell(board member, witness) Canyon Mesa Townhouse Association Served on the Board for the past twenty years
Neutral Parties
Jenna Clark(ALJ) OAH
Judy Lowe(commissioner) ADRE Commissioner of the Arizona Department of Real Estate
DGardner(department contact) ADRE Electronic contact for ADRE
c. serrano(staff) OAH Administrative staff/Clerk noted on document transmission
The Administrative Law Judge issued a Final Order denying the Petitioner's claim on rehearing. The ALJ found that the Association did not violate CC&Rs Article III section 1 when its Board painted pickleball lines on one of the two existing tennis courts, as the action was within the Board's authority to manage Common Areas and did not infringe on members' nonexclusive perpetual easement rights.
Why this result: Petitioner failed to meet the burden of proof by a preponderance of the evidence, and the undisputed material facts supported the finding that the Association's actions were authorized by the governing documents (CC&Rs Articles II and VI) and did not deny or impede member access or use of the Common Areas.
Key Issues & Findings
Whether Canyon Mesa Townhouse Association violated community documents CC&Rs Article III, sec. 1.
Petitioner alleged that the Board's decision to paint pickleball lines on one of two tennis courts constituted an infringement or impediment of enjoyment rights for tennis players, thereby violating CC&Rs Article III section 1.
Orders: The ALJ denied the petition (on rehearing), concluding that Petitioner failed to sustain the burden of proof. The Association was authorized to manage and maintain Common Areas, and members' nonexclusive perpetual easement rights were not violated.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. §§ 32-2199.01(A)
ARIZ. REV. STAT. §§ 32-2199.01(D)
ARIZ. REV. STAT. §§ 32-2199.02
ARIZ. REV. STAT. § 33-1243
ARIZ. REV. STAT. §§ 41-1092 et seq.
ARIZ. REV. STAT. § 41-1092.08(H)
ARIZ. REV. STAT. § 12-904(A)
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
ARIZ. ADMIN. CODE R2-19-119
Analytics Highlights
Topics: HOA Governance, CC&Rs Interpretation, Common Area Use, Easement Rights, Recreational Facilities, Pickleball
Additional Citations:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. §§ 32-2199.01(A)
ARIZ. REV. STAT. §§ 32-2199.01(D)
ARIZ. REV. STAT. §§ 32-2199.02
ARIZ. REV. STAT. § 33-1243
ARIZ. REV. STAT. §§ 41-1092 et seq.
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
ARIZ. ADMIN. CODE R2-19-119
ARIZ. REV. STAT. §§ 41-1092.04
ARIZ. REV. STAT. §§ 41-1092.05(D)
ARIZ. REV. STAT. §§ 41-1061(A)
ARIZ. REV. STAT. § 41-1092.08(H)
ARIZ. REV. STAT. § 12-904(A)
Decision Documents
20F-H2019026-REL Decision – 770924.pdf
Uploaded 2025-12-17T18:18:18 (153.6 KB)
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; Mark Sahl is used in some electronic transmissions
Charles Mitchell(board member/witness) Canyon Mesa Townhouse Association Current Director of the Board; testified as a witness in the original hearing
Arland Averell(board member/witness) Canyon Mesa Townhouse Association Served on the Board for twenty years; testified as a witness in the original hearing
Neutral Parties
Jenna Clark(ALJ) Office of Administrative Hearings
Judy Lowe(commissioner) ADRE Commissioner of the Arizona Department of Real Estate
DGardner(department contact) ADRE Electronic contact for ADRE transmissions
c. serrano(staff/clerk) OAH Staff noted on document transmission
The ALJ concluded that the Petitioner failed to meet the required threshold of 21 valid signatures from eligible voters needed to compel the Association to call a special meeting under ARIZ. REV. STAT. § 33-1243. The petition was consequently denied.
Why this result: Petitioner failed to provide the minimum required 21 valid signatures from eligible unit owners (only 13 were valid) as required by the Association's Bylaws and state statute.
Key Issues & Findings
Alleged violation of failure to call a special meeting to remove a board member.
Petitioner filed a petition alleging the Association failed to call a special meeting to remove a board member after collecting what Petitioner believed were sufficient signatures (36 collected, 21 required). The Association countered that only 13 of those signatures were valid (excluding non-owners, duplicates, and delinquent members ineligible to vote).
Orders: Petitioner’s petition is denied.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 33-1243
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(H)(4)
ARIZ. REV. STAT. § 33-1243(H)(4)(c)
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Analytics Highlights
Topics: HOA, Condominium, Special Meeting, Board Member Removal, Petition Signature Validity, Voting Rights, Delinquency
Additional Citations:
ARIZ. REV. STAT. § 33-1243
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(H)(4)
ARIZ. REV. STAT. § 33-1243(H)(4)(c)
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Video Overview
Audio Overview
Decision Documents
19F-H1919060-REL Decision – 737890.pdf
Uploaded 2025-10-09T03:34:17 (142.6 KB)
Briefing Doc – 19F-H1919060-REL
Administrative Hearing Briefing: Kelly vs. Cortez Canyon Unit Owners Association
Executive Summary
This document summarizes the Administrative Law Judge Decision in case number 19F-H1919060-REL, a dispute between Petitioner John H. Kelly and the Respondent, Cortez Canyon Unit Owners Association (“the Association”). The core issue was whether the Association violated Arizona state law by refusing to call a special meeting to remove a board member, as demanded by a petition initiated by Mr. Kelly.
The Association’s bylaws require a petition signed by at least 25% of eligible voting members—in this case, 21 of the 84 unit owners—to compel such a meeting. Mr. Kelly submitted a petition with 36 signatures. However, upon review, the Association invalidated 23 signatures for specific reasons: 11 were from non-owner renters, 6 were duplicate signatures from units that had already signed, and 6 were from owners whose voting rights were suspended due to being over 15 days delinquent on payments.
This left only 13 valid signatures, well short of the 21 required. The Administrative Law Judge, Jenna Clark, concluded that the Petitioner failed to meet the burden of proof. The evidence clearly demonstrated that the number of valid signatures was insufficient to legally compel the Association to call a special meeting. Consequently, the judge ruled that the Association did not violate Arizona statute § 33-1243 and denied Mr. Kelly’s petition.
Case Overview
Parties Involved
Name / Entity
Details
Petitioner
John H. Kelly
A condominium owner and member of the Cortez Canyon Unit Owners Association. Appeared on his own behalf.
Respondent
Cortez Canyon Unit Owners Association
The homeowners’ association for the Cortez Canyon condominium development in Phoenix, AZ. Represented by Jonathan A. Dessaules, Esq.
Witness
Saundra Garcia
President of the Association’s Board of Directors.
Adjudicator
Jenna Clark
Administrative Law Judge, Arizona Office of Administrative Hearings.
Core Dispute
The central issue adjudicated was whether the Cortez Canyon Unit Owners Association violated Arizona Revised Statute § 33-1243 by failing to call a special meeting for the purpose of removing a board member after receiving a petition from unit owners. The Petitioner alleged that the required number of signatures had been collected, while the Respondent denied this claim, asserting that the petition lacked the requisite number of valid signatures from eligible voters.
Legal and Governance Framework
The dispute was governed by Arizona state law and the Association’s own internal documents.
• Arizona Revised Statute § 33-1243(H)(4): This statute mandates that an association with 1,000 or fewer members must call a special meeting to remove a board member upon receipt of a petition signed by at least 25% of the eligible voters in the association.
• Association Bylaws, Article II, Section 2: Mirrors the state statute, stipulating that a special meeting may be called by unit owners holding at least 25% of the votes in the Association.
• Association Bylaws, Article II, Section 7: Critically, this section states that a unit owner’s right to vote is automatically suspended if they are in arrears on payments (assessments, penalties, etc.) for a period of 15 days. This suspension remains until all payments are brought current.
Petitioner’s Position and Evidence (John H. Kelly)
Mr. Kelly initiated the petition to recall an Association board member. His position and the evidence he presented are summarized as follows:
• Petition Submission: Mr. Kelly, with assistance from others, collected 36 signatures and submitted them to the Association’s then-property management group, Golden Valley.
• Initial Confirmation: He testified that Golden Valley initially informed him that he had secured enough signatures to compel the special meeting.
• Reversal by New Management: A short time later, after the Association’s contract with Golden Valley expired on June 1, 2019, a new property management company informed him that the petition did not meet the signature threshold.
• Key Admission: Mr. Kelly testified that neither he nor his assistants verified whether the signatories were unit owners eligible to vote prior to submitting the petition.
• Argument at Hearing: Mr. Kelly argued that he had submitted a minimum of 23 valid signatures. This included the signature of Jeffery Law, an owner of six units, which Mr. Kelly contended should be counted six times. However, it was established that Mr. Law’s signature was secured after the initial submission and was never provided to the management company.
• Formal Allegation: In his April 29, 2019, filing with the Department, Mr. Kelly stated: “Cortez Canyon has 84 units and 25% is 21 units. Homeowners have collected more than the required 21 home-owner’s signatures. The Cortez Canyon HOA board has stated that they will not schedule the required special meeting.”
Respondent’s Position and Evidence (Cortez Canyon Association)
The Association, represented by its Board President Saundra Garcia, presented a detailed rebuttal based on a thorough review of the submitted petition.
• Receipt of Petition: The Association received the petition with 36 purported unit owner signatures on or about April 19, 2019.
• Signature Verification Process: Upon review, the Association determined that a significant number of signatures were invalid based on the community’s governing documents.
• Disqualification of Signatures: The Association provided a specific breakdown of the 23 signatures it disqualified:
◦ 11 signatures were removed because they were from non-owner renters or occupants.
◦ 6 signatures were removed because they were from units for which another owner’s signature had already been collected (only one vote is permitted per unit).
◦ 6 signatures were removed because the unit owner was ineligible to vote, being more than 15 days delinquent on fines, fees, or dues owed to the Association, as stipulated in the Bylaws.
• Final Tally: After removing the 23 invalid signatures from the 36 submitted, the Association concluded that the petition contained only 13 valid signatures.
• Conclusion: Since 13 signatures is below the required threshold of 21, the Association determined it was not obligated by law or its bylaws to call the special meeting. The signature from the multi-unit owner, Jeffrey Law, was not part of the petition received by the Association and was therefore not considered in its count.
Administrative Law Judge’s Findings and Ruling
The Administrative Law Judge, Jenna Clark, reviewed the evidence and testimony from both parties and issued a decision decisively in favor of the Respondent.
Conclusions of Law
• Burden of Proof: The Judge established that the Petitioner, John H. Kelly, bore the burden of proving by a “preponderance of the evidence” that the Association had violated the statute. A preponderance of evidence is defined as proof that convinces the trier of fact that a contention is more probably true than not.
• Undisputed Facts: The material facts of the case were not at issue. Both parties agreed that 21 valid signatures were required to compel the special meeting.
• Evidence of Record: The Judge found that the evidence presented demonstrated the Petitioner’s failure to meet the required threshold. The decision states, “While Petitioner is correct that he submitted more than twenty-one signatures to the Association, he is incorrect that all of signatures provided were valid.”
• Final Determination on Signatures: The ruling affirmed the Association’s count, concluding, “What the evidence of record reflects is that Petitioner only provided thirteen valid signatures along with his petition to the Association, which was not enough to compel the Association to call a special meeting.”
Final Order
Based on the failure of the Petitioner to sustain his burden of proof, the Administrative Law Judge issued the following order on September 13, 2019:
IT IS ORDERED that Petitioner’s petition be denied.
Study Guide – 19F-H1919060-REL
Study Guide: Kelly v. Cortez Canyon Unit Owners Association (Case No. 19F-H1919060-REL)
This study guide provides a comprehensive review of the Administrative Law Judge Decision in the matter between Petitioner John H. Kelly and Respondent Cortez Canyon Unit Owners Association. It is designed to test and reinforce understanding of the case’s facts, legal arguments, governing documents, and final outcome.
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Part I: Short-Answer Quiz
Instructions: Answer the following ten questions in two to three complete sentences, based solely on the information provided in the case document.
1. Who were the primary parties involved in this hearing, and what were their respective roles?
2. What was the specific violation of Arizona law alleged by the Petitioner in his initial petition to the Department of Real Estate?
3. How many condominium units are in the Cortez Canyon development, and what number of valid signatures was consequently required to compel a special meeting?
4. According to the Association’s Bylaws, what circumstances would cause a Unit Owner to have their voting rights suspended?
5. List the three categories of invalid signatures that the Association identified in its review of the Petitioner’s submission.
6. Who was Jeffery Law, and why was his signature ultimately not counted by the Association?
7. What was the initial assessment given to the Petitioner by the property management group, Golden Valley, and how did it differ from the Association’s final determination?
8. In this type of legal proceeding, who bears the “burden of proof,” and what standard of proof must be met?
9. What was the Administrative Law Judge’s final conclusion regarding the Petitioner’s claim?
10. What was the final ORDER issued by the Administrative Law Judge in this case?
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Part II: Answer Key
1. The primary parties were John H. Kelly, the “Petitioner,” who appeared on his own behalf, and the Cortez Canyon Unit Owners Association, the “Respondent,” which was represented by Jonathan A. Dessaules, Esq. Administrative Law Judge Jenna Clark presided over the hearing. Saundra Garcia, the Association’s Board President, appeared as a witness for the Respondent.
2. The Petitioner alleged that the Association violated ARIZ. REV. STAT. § 33-1243 by failing to call a special meeting for the purpose of removing a board member. He claimed to have collected the required number of signatures from homeowners to compel such a meeting.
3. The Cortez Canyon development has 84 units. Based on the requirement for signatures from 25% of the votes in the Association, a total of 21 valid Unit Owner signatures were required to compel a special meeting.
4. According to Bylaws Article II, Section 7, a Unit Owner’s right to vote is automatically suspended if the owner is in arrears in the payment of any Assessment, monetary penalties, or other fees for a period of fifteen days. This suspension remains in effect until all payments are brought current.
5. The Association determined that of the 36 submitted signatures, 23 were invalid. The categories for invalidation were: eleven signatures from non-owner renters or occupants, six signatures from units where another signature had already been collected, and six signatures from Unit Owners who were ineligible to vote due to being delinquent on payments.
6. Jeffery Law was an Association member and owner of six condominium units. His signature was not counted because the Petitioner secured it after submitting the petition to the management company and never provided it to the Association as part of the formal submission.
7. The former property management group, Golden Valley, initially informed the Petitioner that he had secured enough valid signatures to compel a special meeting. However, after the Association directly reviewed the petition, it determined that only 13 of the signatures were valid, far short of the required 21.
8. In this proceeding, the Petitioner, John H. Kelly, bore the burden of proof. The standard of proof required was a “preponderance of the evidence,” which means providing evidence that is more convincing and has superior weight than the evidence presented by the opposing side.
9. The Administrative Law Judge concluded that the Petitioner failed to sustain his burden of proof. The credible evidence demonstrated that the Petitioner submitted only thirteen valid signatures, which was insufficient to compel the Association to call a special meeting under its Bylaws and state law.
10. The final ORDER, based on the Findings of Fact and Conclusions of Law, was that the Petitioner’s petition be denied.
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Part III: Essay Questions
Instructions: The following questions are designed for longer, essay-style responses. They require a deeper analysis of the case’s themes, legal principles, and procedural elements. Do not provide answers.
1. Analyze the concept of “burden of proof” as it applies to this case. Explain what “preponderance of the evidence” means in this context, who held the burden, and how the failure to meet this standard was the central reason for the judge’s final decision.
2. Discuss the critical importance of an association’s governing documents (CC&Rs and Bylaws) in resolving internal disputes. Use specific articles and sections from the Cortez Canyon Bylaws to illustrate how they definitively established the rules for calling a special meeting and determining voter eligibility, leaving little room for interpretation.
3. Evaluate the Petitioner’s strategy and execution in collecting signatures for his petition. Identify the critical errors he and his assistants made in the process, and outline the specific steps he could have taken to verify signatures and ensure his petition was valid before its submission.
4. Explain the legal and practical distinctions between a Unit Owner, an occupant/renter, and an “eligible voter” within the context of the Cortez Canyon Unit Owners Association. How did the Petitioner’s failure to understand these distinctions become the central point of failure for his petition?
5. Imagine you are advising the Cortez Canyon Board of Directors following this hearing. Based on the evidence and outcome of the case, what recommendations would you make regarding their procedures for validating petitions and their communication with Unit Owners about voting rights, petition requirements, and the consequences of financial delinquency?
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Part IV: Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official (Jenna Clark) who presides over hearings at the Office of Administrative Hearings, reviews evidence, and makes legal findings and conclusions.
Answer
The formal written response filed by the Respondent (the Association) on May 28, 2019, denying the Petitioner’s allegations.
ARIZ. REV. STAT.
Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona. The specific statute at issue was § 33-1243.
Association
The Cortez Canyon Unit Owners Association, the governing body for the condominium development, comprised of all unit owners.
Board of Directors (the Board)
The group of individuals that oversees the Association, as empowered by the CC&Rs. The petition sought to remove a member of this board.
Burden of Proof
The legal obligation on one party in a dispute (in this case, the Petitioner) to provide sufficient evidence to prove their claim.
Bylaws
The set of rules adopted by the Association on June 14, 2000, that govern its internal operations, including meetings and voting rights.
Covenants, Conditions, and Restrictions (CC&Rs)
The primary governing documents for the development, recorded on May 9, 2000, which form an enforceable contract between the Association and each property owner.
Department
The Arizona Department of Real Estate, the state agency authorized to receive and decide petitions from members of homeowners’ associations.
Eligible Votes
A term defined in the Bylaws as the total number of votes that can be lawfully cast, excluding those from members whose voting rights are suspended.
Findings of Fact
The section of the legal decision that outlines the established, undisputed facts of the case based on the hearing evidence.
OAH (Office of Administrative Hearings)
An independent state agency where evidentiary hearings are conducted by Administrative Law Judges.
The final, legally binding command issued by the judge at the conclusion of the decision. In this case, the Order was to deny the petition.
Petitioner
The party who initiates a legal action by filing a petition. In this case, John H. Kelly.
Petition
The formal document filed by the Petitioner on April 29, 2019, with the Department to initiate the hearing process against the Association.
Preponderance of the Evidence
The standard of proof required in this case, meaning that the evidence must be sufficient to convince the judge that the contention is more probably true than not.
Respondent
The party against whom a petition is filed and who must respond to the allegations. In this case, the Cortez Canyon Unit Owners Association.
Special Meeting
A meeting of Association members called for a specific purpose outside of the regularly scheduled meetings. The petition sought to compel a special meeting to remove a board member.
Unit Owner
An individual who holds legal title to a condominium within the Cortez Canyon development and is a member of the Association.
Blog Post – 19F-H1919060-REL
He Gathered 36 Signatures to Oust His HOA Board. Here’s Why Only 13 Counted.
Introduction: The Power and Pitfalls of Community Action
Many homeowners have felt the frustration of trying to enact change within their community, especially when it involves challenging the decisions of a Homeowners Association (HOA) board. It can feel like an uphill battle, but the right to petition and call for special meetings is a cornerstone of community governance.
However, a real-world case involving homeowner John H. Kelly and the Cortez Canyon Unit Owners Association serves as a critical cautionary tale. Mr. Kelly gathered what he believed were more than enough signatures to force a special meeting to remove a board member. Despite his significant effort, his petition failed spectacularly. This article breaks down the key legal and procedural reasons why, offering essential lessons for every homeowner.
1. Not All Signatures Are Created Equal: The Validity Gauntlet
The core of the issue began with a simple numbers game. The Cortez Canyon HOA has 84 units, meaning a petition required signatures from 25%, or 21, of the unit owners to compel a special meeting. Mr. Kelly successfully collected 36 signatures—a number that seemed to guarantee his success.
In a moment of false victory, the association’s property management company at the time, Golden Valley, informed Mr. Kelly that he had indeed secured enough signatures. But this assurance was short-lived. A new management company took over, and after a formal review, the association delivered devastating news: only 13 of the 36 signatures were valid. The petition was dead on arrival.
The association disqualified 23 signatures for specific, documented reasons:
• Non-Owners: Eleven signatures were from renters or other residential occupants who were not the legal owners of the unit.
• Duplicate Units: Six signatures were removed because another signature had already been collected from the same unit, upholding the “one vote per unit” principle.
• Ineligible Owners: Six signatures were from homeowners who were technically owners but were found to be ineligible to vote at the time they signed.
This reveals the petitioner’s first critical, and ultimately fatal, assumption: that the HOA would do the work of verifying his supporters. In reality, the burden of proof was his alone. The legal findings state it plainly: “Neither Petitioner nor his assistants verified if the signatures that were collected belonged to Unit Owners eligible to vote.” From a governance perspective, this initial culling of signatures is where most grassroots community efforts fail.
2. The Fine Print That Disenfranchises: “Good Standing” and Your Right to Vote
Here, we find the kind of boilerplate legal language that is often ignored by homeowners but wielded with immense power by boards. The ineligibility of six homeowners stemmed from a specific clause in the association’s bylaws related to financial standing.
The bylaw states:
“In the event any Unit Owner is in arrears in the payment of any Assessment, monetary penalties or other fees and charges due under the terms of the Condominium Documents for a period of fifteen (15) days, the Unit Owner’s right to vote as a member of the Association shall be automatically suspended…”
This single provision had a profound impact. Six of the signatures Mr. Kelly collected were from homeowners who were more than 15 days late on their dues or fines. Their voting rights were suspended, and their signatures were rendered invalid. This highlights a crucial preparatory step for any petitioner: confidentially requesting a list of members in good standing from the association before collecting signatures, if the governing documents allow, or at minimum, reminding potential signatories to ensure their accounts are current.
3. Process is Paramount: The Signature That Never Was
Facing a losing battle at the administrative hearing, the petitioner made a final argument to salvage his petition. He contended that he had also secured the signature of a member named Jeffrey Law, who owned six separate units. Mr. Kelly argued this single signature should count as six votes, which would have put him over the required threshold.
However, this argument failed due to a simple but fatal procedural error. According to the court’s findings, the signature from Mr. Law was never actually submitted with the petition to the association.
The Administrative Law Judge’s finding was unambiguous: “The signature Petitioner collected from the multiple unit owner, Jeffrey Law, was not a part of the petition received by the Association and therefore was not counted.” This procedural error, while seemingly minor, is an absolute bar to success in administrative law. Unlike a casual disagreement, there is no room for “I meant to” or “I thought I had.”
Conclusion: Knowledge is Power in an HOA
Because the petitioner could only provide 13 valid signatures instead of the required 21, the Administrative Law Judge denied his petition. The HOA was not required to call the special meeting, and the board member remained in place. Mr. Kelly’s story is a powerful reminder that enthusiasm and effort are not enough to navigate the complexities of community governance. The case provides three clear takeaways for any homeowner:
1. Quality Over Quantity: A short, verified list of eligible voters is infinitely more powerful than a long list of unverified names.
2. Bylaws are Your Battlefield: The governing documents contain the rules of engagement. Ignoring them—especially clauses on voter eligibility—is a unilateral surrender.
3. Documentation is Everything: If it wasn’t formally submitted to the correct party, it legally never happened. Your ability to prove submission is as important as the submission itself.
This case is a powerful reminder that enthusiasm and effort aren’t enough. The real question every homeowner should ask is: Do you truly know the rules that govern your rights in your own community?
Case Participants
Petitioner Side
John H. Kelly(petitioner)
Respondent Side
Jonathan A. Dessaules(attorney) Dessaules Law Group Appeared on behalf of Respondent
Saundra Garcia(board member) Cortez Canyon Unit Owners Association Called as a witness and testified as Board President
Jacob A. Kubert(attorney) Dessaules Law Group Counsel receiving notice of decision
Neutral Parties
Jenna Clark(ALJ) Office of Administrative Hearings
Judy Lowe(commissioner) Arizona Department of Real Estate Decision transmitted to Commissioner
Other Participants
Jeffery Law(owner) Cortez Canyon Unit Owners Association Unit owner whose signature Petitioner secured but was not submitted to the Association
