Ryan McMahon v. Alhambra Terrace Condominium Association

Posted on August 7, 2023 by [email protected]

Case Summary

Case ID	23F-H060-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2023-08-07
Administrative Law Judge	Jenna Clark
Outcome	The Administrative Law Judge denied the petition, concluding that Petitioner failed to prove by a preponderance of the evidence that the Alhambra Terrace Condominium Association violated ARIZ. REV. STAT. § 33-1221.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Ryan McMahon	Counsel	—
Respondent	Alhambra Terrace Condominium Association	Counsel	Mike Yohler

Alleged Violations

ARIZ. REV. STAT. § 33-1221

Outcome Summary

The Administrative Law Judge denied the petition, concluding that Petitioner failed to prove by a preponderance of the evidence that the Alhambra Terrace Condominium Association violated ARIZ. REV. STAT. § 33-1221.

Why this result: Petitioner failed to fully satisfy sub-requirements 6, 7, and/or 8 of the Preliminary Architectural Approval Letter, as the documentation provided (specifically from the plumbing company and designer) lacked the necessary professional weight or specificity required by the Association to address structural and plumbing concerns.

Key Issues & Findings

Alleged violation of statute regarding denial of interior modification request.

Petitioner alleged the Association violated ARS § 33-1221 by denying his request to combine two units and add two bathrooms, claiming the denial was unsupported by facts or governing documents. The ALJ found Petitioner failed to prove the violation.

Orders: Petitioner's petition was denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

ARIZ. REV. STAT. § 33-1221
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. Title 33, Chapter 9, Article 3
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. ADMIN. CODE R2-19-119

Analytics Highlights

Topics: condominium modification, HOA denial, structural integrity, plumbing concerns, burden of proof, architectural approval

Additional Citations:

ARIZ. REV. STAT. § 33-1221
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. Title 33, Chapter 9, Article 3
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. ADMIN. CODE R2-19-119
ARIZ. REV. STAT. § 32-2199.02(B)
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
Tierra Ranchos Homeowners Ass'n v. Kitchukov

Video Overview

Audio Overview

Decision Documents

23F-H060-REL Decision – 1081134.pdf

Uploaded 2026-01-23T17:59:25 (189.0 KB)

This is a summary of the administrative hearing held on July 19, 2023, regarding Petitioner Ryan McMahon's claim against the Alhamra Terrace Condominium Association (OAD doc number 23 FH060 REL). Administrative Law Judge (ALJ) Jenna Clark presided.

Key Facts

Petitioner Ryan McMahon, who owns Unit B8, and his fiancée, who owns the adjacent Unit B4 below him, sought permission from the Association to combine the two units (B8 and B4) and add two new bathrooms. The Association, governed by its CC&Rs, issued a series of denials based on concerns regarding the structural integrity and the piping system of the condominium.

In June 2022, the Association issued a conditional approval that required Petitioner to provide specific documentation, including an engineer's sign-off on community plumbing concerns, detailing the proper size and condition of the main sewer line, and ensuring the pipes could accommodate up to six bathrooms, four kitchens, and four laundry units. The conditions also required submission of detailed plans for sewer pipe venting and exhaust fans.

Petitioner subsequently submitted documentation, including letters from a licensed structural engineer (Robert A. Young, PE) confirming no structural reason for denial, and correspondence from a plumbing company (Paradise Valley Plumbing Company, Inc.) providing calculations and stating the project would not negatively impact the plumbing or drainage capacity. The City of Scottsdale had reviewed the plans for code conformity but required HOA approval before issuing permits.

The Association, represented by witness Kit Groseth (Board President), denied the request multiple times, asserting the documents submitted were "vague, incomplete, and unreliable". The Association argued that the Petitioner failed to provide information specifically requested by the preliminary approval letter, particularly documentation from a registered plumbing engineer addressing the detailed capacity concerns. The Association admitted it did not hire its own engineer due to the anticipated high cost (estimated $5,000–$10,000).

Main Issues and Legal Points

The core issue was whether the Association violated Arizona Revised Statute (ARIZ. REV. STAT.) § 33-1221 by denying the interior modification request. This statute permits unit owners to make alterations that *do not impair the structural integrity or mechanical systems* of the condominium.

The critical legal point focused on Petitioner's burden of proof. The ALJ was tasked with determining if Petitioner provided a preponderance of the evidence proving the Association acted illegally by denying the request.

The Association argued that while Petitioner provided some engineering support, he did not meet the specific itemized requirements of the conditional approval, particularly regarding specific plumbing engineering reports.

Outcome and Final Decision

The Administrative Law Judge concluded that Petitioner did not sustain his burden of proof.

The ALJ found that Petitioner failed to fully comply with itemized requirements 6, 7, and/or 8 of the Preliminary Architectural Approval Letter. Specifically, the plumbing company providing calculations was not a licensed structural engineering firm, limiting the weight of its attestation. Furthermore, the structural engineer’s reports (Mr. Young) were not offered for consideration regarding the pipes, fans, and vents, as required by the conditional approval.

Based on these findings, the ALJ issued an ORDER that Petitioner's petition be denied. This decision is binding unless a request for rehearing is filed with the Commissioner of the Arizona Department of Real Estate.

Questions

Question

What is the burden of proof for a homeowner alleging an HOA violation?

Short Answer

The homeowner (petitioner) bears the burden of proving the violation by a preponderance of the evidence.

Detailed Answer

In an administrative hearing regarding an HOA dispute, the homeowner filing the petition is responsible for proving their case. They must demonstrate that it is more likely than not that the HOA violated the relevant statutes or community documents.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1243.

Legal Basis

ARIZ. REV. STAT. § 33-1243; ARIZ. ADMIN. CODE R2-19-119

Topic Tags

burden of proof
legal standards
hearing procedure

Question

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

Short Answer

It means the evidence must show the claim is more probably true than not.

Detailed Answer

To win a hearing, the evidence presented must carry more weight than the opposing side's evidence. It doesn't necessarily mean having more witnesses, but rather having evidence with superior convincing force that inclines an impartial mind to one side.

Alj Quote

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

Legal Basis

Common Law / Legal Standard

Topic Tags

legal standards
evidence
definitions

Question

Can I combine two adjoining condo units I own by removing the wall between them?

Short Answer

Yes, generally, provided the removal does not impair structural integrity or mechanical systems.

Detailed Answer

Arizona law allows a unit owner who acquires an adjoining unit to remove or alter intervening partitions. However, this is strictly conditioned on the requirement that such acts do not weaken the building's structural integrity, mechanical systems, or support.

Alj Quote

After acquiring an adjoining unit… [a unit owner] may remove or alter any intervening partition or create apertures in intervening partitions… if those acts do not impair the structural integrity or mechanical systems or lessen the support of any portion of the condominium.

Legal Basis

ARIZ. REV. STAT. § 33-1221(3)

Topic Tags

homeowner rights
renovations
condominiums

Question

Does the administrative law judge have the power to interpret the HOA's contract (CC&Rs)?

Short Answer

Yes, the Office of Administrative Hearings (OAH) has the authority to interpret the contract between the parties.

Detailed Answer

When a dispute involves the community documents (like CC&Rs), the Administrative Law Judge has the legal authority to interpret those documents to decide the contested case.

Alj Quote

OAH has the authority to hear and decide the contested case at bar. OAH has the authority to interpret the contract between the parties.

Legal Basis

ARIZ. REV. STAT. §§ 32-2199 et seq.

Topic Tags

jurisdiction
CC&Rs
contract interpretation

Question

Can the HOA reject my renovation if I provide a plumber's report instead of the requested structural engineer's report?

Short Answer

Yes, the HOA can reject the request if the specific professional expertise requested (e.g., structural engineering) is not provided.

Detailed Answer

If an HOA requests a specific type of expert opinion (such as a structural engineer) to ensure the integrity of the building, providing a report from a different type of professional (such as a plumbing company) may be considered insufficient evidence, justifying a denial.

Alj Quote

Paradise Valley Plumbing Company, Inc. is not a licensed structural engineering firm, so unfortunately the attestation of its Qualifying Party cannot be afforded much weight, if any.

Legal Basis

Fact-specific determination / ARIZ. REV. STAT. § 33-1221

Topic Tags

renovations
architectural committee
expert evidence

Question

Do I need written permission from the HOA to change the exterior appearance of my condo?

Short Answer

Yes, changing the exterior appearance or common elements requires written permission.

Detailed Answer

State statute explicitly prohibits unit owners from changing the appearance of common elements or the exterior of a unit without obtaining written permission from the association.

Alj Quote

Shall not change the appearance of the common elements, or the exterior appearance of a unit or any other portion of the condominium, without written permission of the association.

Legal Basis

ARIZ. REV. STAT. § 33-1221(2)

Topic Tags

exterior changes
architectural control
common elements

Question

If I hire a structural engineer, must their report specifically address the HOA's stated concerns?

Short Answer

Yes, simply hiring an engineer is not enough; the report must address the specific items requested by the HOA (e.g., integrity of pipes, fans, vents).

Detailed Answer

Submitting an engineer's letter that does not address the specific technical concerns raised by the HOA (such as the condition of pipes or venting plans) may result in a denial because the homeowner failed to meet the burden of proof regarding safety and structural integrity.

Alj Quote

While Mr. Young is undoubtedly a licensed structural engineer… it is unclear if he made determinations regarding the integrity of the Association’s pipes, fans, and vents as required by sub-requirements 6-8 of the Association’s PRELIMINARY ARCHITECTURAL APPROVAL LETTER.

Legal Basis

Evidence sufficiency

Topic Tags

renovations
compliance
engineering reports

Case

Docket No: 23F-H060-REL
Case Title: Ryan McMahon vs. Alhambra Terrace Condominium Association
Decision Date: 2023-08-07
Alj Name: Jenna Clark
Tribunal: OAH
Agency: ADRE

Questions

Question

What is the burden of proof for a homeowner alleging an HOA violation?

Short Answer

The homeowner (petitioner) bears the burden of proving the violation by a preponderance of the evidence.

Detailed Answer

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1243.

Legal Basis

ARIZ. REV. STAT. § 33-1243; ARIZ. ADMIN. CODE R2-19-119

Topic Tags

burden of proof
legal standards
hearing procedure

Question

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

Short Answer

It means the evidence must show the claim is more probably true than not.

Detailed Answer

Alj Quote

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

Legal Basis

Common Law / Legal Standard

Topic Tags

legal standards
evidence
definitions

Question

Can I combine two adjoining condo units I own by removing the wall between them?

Short Answer

Yes, generally, provided the removal does not impair structural integrity or mechanical systems.

Detailed Answer

Alj Quote

Legal Basis

ARIZ. REV. STAT. § 33-1221(3)

Topic Tags

homeowner rights
renovations
condominiums

Question

Does the administrative law judge have the power to interpret the HOA's contract (CC&Rs)?

Short Answer

Yes, the Office of Administrative Hearings (OAH) has the authority to interpret the contract between the parties.

Detailed Answer

When a dispute involves the community documents (like CC&Rs), the Administrative Law Judge has the legal authority to interpret those documents to decide the contested case.

Alj Quote

OAH has the authority to hear and decide the contested case at bar. OAH has the authority to interpret the contract between the parties.

Legal Basis

ARIZ. REV. STAT. §§ 32-2199 et seq.

Topic Tags

jurisdiction
CC&Rs
contract interpretation

Question

Can the HOA reject my renovation if I provide a plumber's report instead of the requested structural engineer's report?

Short Answer

Yes, the HOA can reject the request if the specific professional expertise requested (e.g., structural engineering) is not provided.

Detailed Answer

Alj Quote

Paradise Valley Plumbing Company, Inc. is not a licensed structural engineering firm, so unfortunately the attestation of its Qualifying Party cannot be afforded much weight, if any.

Legal Basis

Fact-specific determination / ARIZ. REV. STAT. § 33-1221

Topic Tags

renovations
architectural committee
expert evidence

Question

Do I need written permission from the HOA to change the exterior appearance of my condo?

Short Answer

Yes, changing the exterior appearance or common elements requires written permission.

Detailed Answer

State statute explicitly prohibits unit owners from changing the appearance of common elements or the exterior of a unit without obtaining written permission from the association.

Alj Quote

Shall not change the appearance of the common elements, or the exterior appearance of a unit or any other portion of the condominium, without written permission of the association.

Legal Basis

ARIZ. REV. STAT. § 33-1221(2)

Topic Tags

exterior changes
architectural control
common elements

Question

If I hire a structural engineer, must their report specifically address the HOA's stated concerns?

Short Answer

Yes, simply hiring an engineer is not enough; the report must address the specific items requested by the HOA (e.g., integrity of pipes, fans, vents).

Detailed Answer

Alj Quote

Legal Basis

Evidence sufficiency

Topic Tags

renovations
compliance
engineering reports

Case

Docket No: 23F-H060-REL
Case Title: Ryan McMahon vs. Alhambra Terrace Condominium Association
Decision Date: 2023-08-07
Alj Name: Jenna Clark
Tribunal: OAH
Agency: ADRE

Case Participants

Petitioner Side

Ryan McMahon (petitioner)
Full name: Ryan Christopher McMahon
Christina Samaras (witness)
Petitioner's fiance and observer. Also referred to as Christina Cincer.
Robert A. Young (engineer/consultant)
Structural Engineer (PE) providing documentation for Petitioner
Scott Olsson (plumber/consultant)
Paradise Valley Plumbing Company, Inc.
Licensed plumber/Qualifying Party providing statements for Petitioner
Gary Devol (designer/consultant)
Designs by Devol LLC
Designer who created the modification plans

Respondent Side

Mike Yohler (attorney)
Farmers Insurance
Counsel of record for Respondent
Kent William Groseth (board member)
Alhamra Terrace Condominium Association
Board President and witness
Emma (property manager representative)
AMCOR Property Professionals, Inc.
Exchanged correspondence with Petitioner regarding denial
Mia (board member)
Alhamra Terrace Condominium Association
HOA president at the time of initial request
Jim Nelson (board member)
Alhamra Terrace Condominium Association
Co-vice president
Robin (property manager representative)
AMCOR Property Professionals, Inc.
Vice President involved in email correspondence
Miss Morgan (attorney)
Previous counsel replaced by Mike Yohler

Neutral Parties

Jenna Clark (ALJ)
OAH
Administrative Law Judge
Susan Nicolson (Commissioner)
ADRE
Commissioner of the Arizona Department of Real Estate

Victoria J Whitaker v. Villas at Sunland Condominium Association

Posted on February 22, 2023 by [email protected]

Case Summary

Case ID	23F-H021-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2023-02-22
Administrative Law Judge	Jenna Clark
Outcome	The Administrative Law Judge denied the petition, finding Petitioner failed to prove the Association violated ARIZ. REV. STAT. § 33-1242 regarding due process requirements for violation enforcement, as the Petitioner did not follow the required certified mail procedure to trigger those rights.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Victoria J Whitaker	Counsel	—
Respondent	Villas at Sunland Condominium Association	Counsel	Austin Baillio

Alleged Violations

ARIZ. REV. STAT. § 33-1242

Outcome Summary

The Administrative Law Judge denied the petition, finding Petitioner failed to prove the Association violated ARIZ. REV. STAT. § 33-1242 regarding due process requirements for violation enforcement, as the Petitioner did not follow the required certified mail procedure to trigger those rights.

Why this result: Petitioner failed to prove by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1242. Petitioner did not follow the statutory requirement of sending a response via certified mail (ARIZ. REV. STAT. § 33-1242(B)).

Key Issues & Findings

Alleged failure to follow due process concerning violation enforcement

Petitioner alleged the Association failed to follow due process when enforcing community documents regarding damage to a semi-common element (carport) before her purchase, leading to a violation notice and subsequent enforcement.

Orders: Petition denied. Respondent shall not reimburse Petitioner's filing fee as required by ARIZ. REV. STAT. § 32-2199.02(A).

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

ARIZ. REV. STAT. § 33-1242
ARIZ. REV. STAT. § 33-1242(B)
ARIZ. REV. STAT. § 33-1242(C)
ARIZ. REV. STAT. § 33-1242(D)
ARIZ. REV. STAT. § 33-1803
ARIZ. REV. STAT. § 32-2199.02(A)

Analytics Highlights

Topics: Condominium Association, Due Process, Violation Enforcement, Carport Damage, Statutory Compliance, Filing Fee Denial

Additional Citations:

ARIZ. REV. STAT. § 33-1242
ARIZ. REV. STAT. § 33-1242(B)
ARIZ. REV. STAT. § 33-1242(C)
ARIZ. REV. STAT. § 33-1242(D)
ARIZ. REV. STAT. § 33-1803
ARIZ. REV. STAT. § 32-2199.01
ARIZ. REV. STAT. § 32-2199.02(A)
ARIZ. REV. STAT. § 33-1260(A)(3)(e)
ARIZ. REV. STAT. § 33-1243
Declaration Article 5.3
Declaration Article 5.1
Declaration Article 5.2

Video Overview

Audio Overview

Decision Documents

23F-H021-REL Decision – 1036088.pdf

Uploaded 2026-05-02T11:03:57 (224.9 KB)

23F-H021-REL Decision – 1036088.pdf

Uploaded 2026-01-23T17:53:06 (224.9 KB)

This summary details the hearing proceedings, key arguments, and final decision in the matter of Victoria Whitaker (Petitioner) versus Villas at Sunland Condominium Association (Respondent). The hearing took place on February 3, 2023, before Administrative Law Judge (ALJ) Jenna Clark.

Key Facts and Procedural History

The case centered on a dispute over damage to a semi-common element: a carport shared by Petitioner's unit (Unit 16) and an adjacent unit. The damage was observed prior to the Petitioner's purchase of the unit on June 13, 2022. Although the Petitioner received a $20,000 reduction in the purchase price due to the outstanding issue, she denied accepting responsibility for the repair.

On July 18, 2022, after the sale, the Association issued a Notice of Violation to the Petitioner, requiring her to repair the carport ceiling.

A key procedural point addressed at the start of the hearing was the deficient Notice of Hearing, which incorrectly cited the Planned Communities Act (ARS § 33-1803) instead of the correct statute for condominiums. All parties stipulated to amend the governing statute for the dispute to ARS § 33-1242(D), which regulates due process in condominium enforcement actions.

Main Issues and Arguments

Petitioner's Argument:

The Petitioner alleged that the Association failed to follow due process under ARS § 33-1242. She argued that the violation should not have been enforced against her, as the damage occurred before her purchase and the violation was not properly investigated by management. The Association's claim that the damage was caused by the prior owner's tenant relied solely on "hearsay" (a neighbor's phone call), and no further investigation or expert assessment was conducted. She also claimed that the subsequent hearing held by the Board on October 5, 2022, was unfair because the Board had already made its decision.

Respondent's Argument:

The Association contended that they fully complied with ARS § 33-1242, providing notice and affording the Petitioner a hearing before the Board prior to taking any enforcement action (such as imposing fines). The core legal argument focused on the Petitioner’s failure to adhere to statutory requirements: ARS § 33-1242(B) requires a unit owner to provide a written response to a violation notice by certified mail within 21 days to "trigger" the subsequent due process provisions. The Petitioner admitted sending her contestation via email, not certified mail. The Association argued that because the Petitioner did not follow the statutory procedure, they cannot be found in violation of the statute's subsequent timing requirements.

Final Decision and Outcome

The ALJ concluded that the Tribunal’s jurisdiction was narrowly limited to determining whether the Association violated ARS § 33-1242, not to decide who was responsible for the damage or whether the Board's determination was correct.

The ALJ found that Petitioner bore the burden of proving the statutory violation by a preponderance of the evidence. The record established that Petitioner did not follow the statutory requirements of ARS § 33-1242 (certified mail) necessary to "trigger" any protected due process rights. Despite this procedural failure, the Association still apprised her of her rights and afforded her a hearing.

Based on the evidence, the ALJ concluded that no violation of ARS § 33-1242 was established.

Outcome: Petitioner’s petition was denied. The Association was not required to reimburse the Petitioner’s filing fee.

Questions

Question

Can the Administrative Law Judge decide if I am actually responsible for the damage cited in a violation?

Short Answer

No. The ALJ's jurisdiction is limited to determining if the HOA followed the correct statutory process (due process), not determining the underlying facts of responsibility or 'guilt' regarding the damage.

Detailed Answer

The Tribunal does not have the authority to decide the merits of the violation itself (e.g., who caused the damage). Its role is strictly to determine if the Association violated the specific statutes governing the enforcement process (such as notice and hearing requirements).

Alj Quote

The record is clear that Petitioner was under the erroneous belief that the Tribunal had jurisdiction to determine who, if anyone, was responsible for causing the damage to Unit 16’s carport and was therefore liable for the repairs required. In all actuality, the crux of the matter for hearing is whether Respondent violated ARIZ. REV. STAT. § 33-1242.

Legal Basis

ARIZ. REV. STAT. § 33-1242

Topic Tags

jurisdiction
scope of hearing
violation responsibility

Question

Is it required to send my violation dispute response by certified mail?

Short Answer

Yes. Failing to send a response by certified mail may fail to 'trigger' the specific statutory due process protections afforded by state law.

Detailed Answer

The statute explicitly states that a unit owner 'may' provide a written response by certified mail within 21 days. The decision clarifies that failing to follow this specific requirement (e.g., sending an email instead) means the owner has not met the statutory requirements necessary to trigger protected due process rights under that specific statute.

Alj Quote

The record reflects that Petitioner did not follow the statutory requirements of ARIZ. REV. STAT. § 33-1242 necessary to 'trigger' any protected due process rights.

Legal Basis

ARIZ. REV. STAT. § 33-1242(B)

Topic Tags

certified mail
procedural requirements
contesting violations

Question

What constitutes 'due process' for an HOA violation?

Short Answer

Due process generally consists of being given notice of the violation and an opportunity to be heard by the Board before any penalties are levied.

Detailed Answer

Even if a homeowner misses a technical step (like certified mail), the ALJ may find the HOA acted correctly if the HOA still provided the homeowner with clear notice of their rights/options and allowed them a hearing before the Board prior to issuing fines.

Alj Quote

Respondent nonetheless apprised her of her rights and options, and afforded her an opportunity to be heard before the Board prior to levying penalties/fines over the violation at issue.

Legal Basis

ARIZ. REV. STAT. § 33-1242

Topic Tags

due process
notice
board hearing

Question

Who is responsible for repairing 'Limited Common Elements' like a designated carport?

Short Answer

Typically the Unit Owner. The specific maintenance obligations are defined in the community's Declaration.

Detailed Answer

In this case, the Declaration stated that while the Association maintains Common Elements, Limited Common Elements allocated to a specific unit are the responsibility of that Unit Owner to maintain, repair, and replace.

Alj Quote

[E]ach Owner shall be responsible for the maintenance, repair and replacement of the Limited Common Elements allocated to [their] unit.

Legal Basis

Declaration Article 5.2

Topic Tags

maintenance
limited common elements
carport

Question

Am I financially liable for damage caused by my tenants?

Short Answer

Yes. Owners are generally liable for damages to common elements resulting from the negligence or misconduct of their lessees.

Detailed Answer

The governing documents in this case explicitly stated that the owner is liable for damage to common elements resulting from the negligence or willful misconduct of the owner's lessees, occupants, or invitees.

Alj Quote

Each Owner shall be liable to the Association for any damage to the Common Elements which results from the negligence or willful misconduct of the Owner or of the Owner’s Lessees, Occupants or Invitees.

Legal Basis

Declaration Article 5.3

Topic Tags

tenant liability
rental property
damages

Question

Who has the burden of proof in an administrative hearing against the HOA?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

The homeowner must prove by a 'preponderance of the evidence' (meaning it is more probable than not) that the Association violated the relevant statute.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1243.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

burden of proof
evidence
legal standard

Question

Can I get my filing fee reimbursed if my petition is denied?

Short Answer

No. If the petition is denied, the ALJ acts under statute to order that the filing fee is not reimbursed.

Detailed Answer

The decision specifically orders that pursuant to state statute, the Respondent (HOA) is not required to reimburse the filing fee when the Petitioner does not prevail.

Alj Quote

IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee as required by ARIZ. REV. STAT. § 32-2199.01.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

filing fees
costs
reimbursement

Case

Docket No: 23F-H021-REL
Case Title: Victoria J Whitaker vs. Villas at Sunland Condominium Association
Decision Date: 2023-02-22
Alj Name: Jenna Clark
Tribunal: OAH
Agency: ADRE

Questions

Question

Can the Administrative Law Judge decide if I am actually responsible for the damage cited in a violation?

Short Answer

Detailed Answer

Alj Quote

Legal Basis

ARIZ. REV. STAT. § 33-1242

Topic Tags

jurisdiction
scope of hearing
violation responsibility

Question

Is it required to send my violation dispute response by certified mail?

Short Answer

Yes. Failing to send a response by certified mail may fail to 'trigger' the specific statutory due process protections afforded by state law.

Detailed Answer

Alj Quote

The record reflects that Petitioner did not follow the statutory requirements of ARIZ. REV. STAT. § 33-1242 necessary to 'trigger' any protected due process rights.

Legal Basis

ARIZ. REV. STAT. § 33-1242(B)

Topic Tags

certified mail
procedural requirements
contesting violations

Question

What constitutes 'due process' for an HOA violation?

Short Answer

Due process generally consists of being given notice of the violation and an opportunity to be heard by the Board before any penalties are levied.

Detailed Answer

Alj Quote

Respondent nonetheless apprised her of her rights and options, and afforded her an opportunity to be heard before the Board prior to levying penalties/fines over the violation at issue.

Legal Basis

ARIZ. REV. STAT. § 33-1242

Topic Tags

due process
notice
board hearing

Question

Who is responsible for repairing 'Limited Common Elements' like a designated carport?

Short Answer

Typically the Unit Owner. The specific maintenance obligations are defined in the community's Declaration.

Detailed Answer

Alj Quote

[E]ach Owner shall be responsible for the maintenance, repair and replacement of the Limited Common Elements allocated to [their] unit.

Legal Basis

Declaration Article 5.2

Topic Tags

maintenance
limited common elements
carport

Question

Am I financially liable for damage caused by my tenants?

Short Answer

Yes. Owners are generally liable for damages to common elements resulting from the negligence or misconduct of their lessees.

Detailed Answer

Alj Quote

Legal Basis

Declaration Article 5.3

Topic Tags

tenant liability
rental property
damages

Question

Who has the burden of proof in an administrative hearing against the HOA?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

The homeowner must prove by a 'preponderance of the evidence' (meaning it is more probable than not) that the Association violated the relevant statute.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1243.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

burden of proof
evidence
legal standard

Question

Can I get my filing fee reimbursed if my petition is denied?

Short Answer

No. If the petition is denied, the ALJ acts under statute to order that the filing fee is not reimbursed.

Detailed Answer

The decision specifically orders that pursuant to state statute, the Respondent (HOA) is not required to reimburse the filing fee when the Petitioner does not prevail.

Alj Quote

IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee as required by ARIZ. REV. STAT. § 32-2199.01.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

filing fees
costs
reimbursement

Case

Docket No: 23F-H021-REL
Case Title: Victoria J Whitaker vs. Villas at Sunland Condominium Association
Decision Date: 2023-02-22
Alj Name: Jenna Clark
Tribunal: OAH
Agency: ADRE

Case Participants

Petitioner Side

Victoria Whitaker (petitioner)
Appeared on her own behalf without counsel
Kimball Whitaker (observer)
Observed hearing; potential witness for petitioner
Realtor (realtor)
Petitioner's realtor (name not provided)

Respondent Side

Austin Baillio (HOA attorney)
Maxwell & Morgan, P.C.
Joseph Milin (board member)
Villas at Sunland Condominium Association
Board President; Witness
Steven Cheff (property manager)
Haywood Community Management (HMC)
Community Manager and Compliance Inspector; Witness
Carly Collins (property management admin)
Haywood Community Management (HMC)
Admin responsible for correspondence
Harvey Colin (property management admin)
Haywood Community Management (HMC)
Signed resale disclosure statement
Neighbor (Unit 15) (witness)
Unit 15 resident
Provided alleged eyewitness testimony regarding the damage

Neutral Parties

Jenna Clark (ALJ)
OAH
Presiding Administrative Law Judge
Susan Nicolson (Commissioner)
Arizona Department of Real Estate (ADRE)

Other Participants

Chad and Ida Carpenter (prior owners/sellers)
Unit 16 (prior owners)
The sellers of the property at issue
Kevin Finley (contractor)
Signature
Provided repair estimate

R.L. Whitmer v. Hilton Casitas HOA

Posted on October 13, 2022 by [email protected]

Case Summary

Case ID	22F-H2222043-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2022-10-13
Administrative Law Judge	Tammy L. Eigenheer
Outcome	The ALJ granted Summary Judgment in favor of Petitioner, concluding that the plain language of Section 8.2 of the Declaration requires a majority of a quorum of all owners to vote to set the annual assessments, which the Respondent failed to obtain.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	R.L. Whitmer	Counsel	—
Respondent	Hilton Casitas HOA	Counsel	Edith Rudder

Alleged Violations

Section 8.2

Outcome Summary

The ALJ granted Summary Judgment in favor of Petitioner, concluding that the plain language of Section 8.2 of the Declaration requires a majority of a quorum of all owners to vote to set the annual assessments, which the Respondent failed to obtain.

Key Issues & Findings

Failure to Obtain Owner Approval for Annual Assessment

Respondent adopted the 2022 annual budget and assessment without obtaining the affirmative approval of a majority of a quorum of homeowners.

Orders: Petitioner's petition is affirmed. Respondent ordered to reimburse Petitioner's $500.00 filing fee and directed to comply with Section 8.2 of the Declaration going forward.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

ARIZ. REV. STAT. § 33-1201
ARIZ. REV. STAT. § 33-1202
ARIZ. REV. STAT. § 33-1241
ARIZ. REV. STAT. § 33-1243
ARIZ. REV. STAT. § 38-551(5)

Related election workflow tool

Many HOA election disputes start with preventable workflow problems: unclear ballot language, separate-vote issues, quorum tracking, paper/online reconciliation, proxy handling, or incomplete records. HOABallot is a separate platform built to document the voting workflow from notice through certification.

Preview HOABallot election workflows

Video Overview

Audio Overview

Decision Documents

22F-H2222043-REL Decision – 1005717.pdf

Uploaded 2026-04-24T11:50:30 (155.6 KB)

22F-H2222043-REL Decision – 1014946.pdf

Uploaded 2026-04-24T11:50:34 (40.7 KB)

22F-H2222043-REL Decision – 976124.pdf

Uploaded 2026-04-24T11:50:39 (46.1 KB)

22F-H2222043-REL Decision – 976252.pdf

Uploaded 2026-04-24T11:50:43 (5.5 KB)

22F-H2222043-REL Decision – 979285.pdf

Uploaded 2026-04-24T11:50:47 (50.0 KB)

22F-H2222043-REL Decision – 1005717.pdf

Uploaded 2026-02-27T14:42:04 (155.6 KB)

22F-H2222043-REL Decision – 1014946.pdf

Uploaded 2026-02-27T14:42:05 (40.7 KB)

22F-H2222043-REL Decision – 976124.pdf

Uploaded 2026-02-27T14:42:06 (46.1 KB)

22F-H2222043-REL Decision – 976252.pdf

Uploaded 2026-02-27T14:42:06 (5.5 KB)

22F-H2222043-REL Decision – 979285.pdf

Uploaded 2026-02-27T14:42:07 (50.0 KB)

Briefing Document: R.L. Whitmer v. Hilton Casitas HOA (Case No. 22F-H2222043-REL)

Executive Summary

This briefing document analyzes the administrative legal dispute between R.L. Whitmer (Petitioner) and Hilton Casitas HOA (Respondent), a 29-unit condominium association in Scottsdale, Arizona. The central conflict concerned the interpretation of the association's 1972 Declaration, specifically whether the "Council" authorized to set annual assessments refers to the Board of Directors or the collective body of Owners.

On October 13, 2022, the Administrative Law Judge (ALJ) ruled in favor of the Petitioner, determining that the plain language of the governing documents requires a majority of a quorum of all Owners to approve annual assessments. Because the Respondent failed to achieve a quorum during its 2022 budget ratification attempt, the assessment was deemed invalid. The Respondent was ordered to reimburse the Petitioner’s filing fee and comply with Owner-approval requirements moving forward.

Detailed Analysis of Key Themes

1. Linguistic Interpretation of "Council"

The crux of the legal dispute was the definition of the word "Council" as used in Section 8.2 of the Declaration.

Respondent’s Position: The HOA argued that "Council" is synonymous with the "Board of Directors" or the "Association" as a corporate entity. They contended that under modern Arizona statutes (the Condominium Act), the Board has the power to act on behalf of the association in all instances not explicitly reserved for members.
Petitioner’s Position: The Petitioner argued that the Declaration explicitly defines the Council as the entire membership of owners.
ALJ Finding: The ALJ upheld the Petitioner’s view, noting that Section 1.4 of the Declaration specifically states the Council "consists of all of the Owners of the Casitas."

2. Statutory Evolution vs. Contractual Fidelity

The case highlights the tension between historical governing documents and evolving state law.

The Horizontal Property Regime Act: This was the law in effect when the Hilton Casitas Declaration was recorded in 1972. It defined "Council of co-owners" as "all of the co-owners of the building."
The Condominium Act: Adopted in 1986, this Act replaced the previous regime. The Respondent argued that the modern Act allows Boards to adopt budgets and set assessments unless the documents state otherwise.
The Ruling: The ALJ concluded that because the association's governing documents constitute a contract, the intent of the parties at the time of the contract (1972) is paramount. The ALJ noted that despite the repeal of the old Act in 1985, the HOA had 36 years to amend its documents to clarify Board authority but failed to do so.

3. Procedural Failure and Quorum Requirements

The HOA attempted a "ratification" process for the 2022 budget that failed to meet the standards set by its own Bylaws.

Participation Numbers: Hilton Casitas consists of 29 Owners. A quorum (majority) requires 15 members.
The February 9, 2022 Meeting: Only 14 Owners participated (in person or by absentee ballot). Even though 11 of those 14 voted to approve the budget, the lack of a 15-person quorum rendered the vote legally ineffective.
The Difference in Standards: While the Declaration requires higher vote percentages for major changes (e.g., 51% to amend the Declaration or 75% for new construction), the ALJ clarified that for standard "Council" acts, a majority of a quorum is the minimum requirement.

Important Quotes with Context

Governing Document Definitions

"“Council” shall mean the Council of Co-owners as defined in the Horizontal Property Regime Act, and consists of all of the Owners of the Casitas."

— Declaration, Section 1.4

Context: This quote was the primary evidence used to defeat the Respondent’s claim that "Council" referred to the Board.

Assessment Authority

"The Owner of each Casita… agrees that each Casita shall be subject to an annual assessment in an amount to be determined by the Council…"

— Declaration, Section 8.2

Context: This provision establishes that the power to set the specific dollar amount of assessments resides with the "Council" (all Owners), not just the Board.

Conflict of Documents

"In case any of the provisions of these Bylaws conflict with the provisions of said Declaration, the provisions of said Declaration shall control."

— Bylaws, Article XI, Section 1

Context: This established the hierarchy of authority, ensuring that the Declaration's definition of "Council" overrode any broader powers the Board might claim under the Bylaws or general corporate law.

The ALJ's Conclusion

"The Administrative Law Judge concludes that, the plain language of the Declaration requires a majority of a quorum of all owners vote to set the annual assessments for Respondent."

— ALJ Decision, Conclusions of Law ¶ 22

Context: This was the final legal determination that invalidated the HOA's unilateral budgeting process.

Procedural History and Timeline

Date	Event
Nov 5, 2021	Board notices meeting for "discussion and approval" of 2022 budget.
Jan 13–19, 2022	Petitioner repeatedly warns Board via email regarding non-compliance with Section 8.2.
Feb 9, 2022	Budget meeting held; 14 Owners participate (less than quorum).
May 27, 2022	Respondent requests additional time to respond to Summary Judgment motion.
June 8, 2022	ALJ denies Respondent’s Motion to Strike and sets a response deadline of June 20.
June 22, 2022	ALJ denies Petitioner’s Motion for Default Judgment but grants a continuance of the hearing.
Oct 13, 2022	Final Decision issued: Petitioner's motion affirmed; Respondent ordered to comply.
Nov 14, 2022	Respondent files Motion for Rehearing/Reconsideration.
Nov 28, 2022	ALJ issues Minute Entry refusing to consider the motion, stating the OAH can take no further action.

Actionable Insights

For Governance Compliance

Mandatory Owner Voting: The Board cannot unilaterally set annual assessments. A formal meeting must be called where at least 15 of the 29 owners (a quorum) are present in person or by proxy.
Approval Threshold: Once a quorum of 15 is met, at least 8 votes (a majority of that quorum) are required to legally set the assessment.
Document Amendments: If the association wishes to grant the Board the power to set assessments without a full membership vote, they must formally amend the Declaration. Per Section 23.3, this requires the signed concurrence of 51% of the Owners.

Legal and Financial Consequences

Reimbursement: The association is legally obligated to reimburse the Petitioner $500.00 for the filing fee.
Standard of Conduct: The ALJ emphasized that the HOA had decades to modernize its language regarding the "Council" and the "Board." Failure to align historical documents with current practices results in the historical contract language remaining binding.
Finality of Administrative Decisions: The OAH has limited jurisdiction for reconsiderations. Once a final order is issued and the timeframe for standard motions passes, the Office may refuse to hear further arguments, as seen in the November 28 Minute Entry.

Legal Analysis Study Guide: Whitmer v. Hilton Casitas HOA

This study guide provides a comprehensive overview of the administrative law case R.L. Whitmer v. Hilton Casitas HOA (No. 22F-H2222043-REL). It explores the intersection of homeowner association (HOA) governing documents, Arizona statutory law, and the principles of contractual interpretation.

Key Case Concepts

1. The Central Dispute

The primary legal question was whether the Hilton Casitas HOA Board had the authority to determine annual assessments unilaterally or if such assessments required an affirmative vote by a quorum of the homeowners. The dispute centered on the interpretation of the term "Council" as used in the association's 1972 Declaration.

2. Hierarchy of Governing Documents

The case underscores the priority of governing documents:

The Declaration: The foundational document (recorded in 1972). Section 8.2 states that annual assessments are "determined by the Council."
Bylaws: Article XI, Section 1 explicitly states that in the event of a conflict between the Bylaws and the Declaration, the Declaration shall control.
Statutory Law: While the Arizona Condominium Act provides general management powers to boards, it also allows for specific restrictions within a community's own Declaration.

3. Definitions and Interpretations

Council: Section 1.4 of the Declaration defines "Council" as the "Council of Co-owners… and consists of all of the Owners of the Casitas."
Quorum Requirements: According to Article III, Section 6 of the Bylaws, a quorum is a majority of members. For this association of 29 owners, a quorum is 15. The "acts of the Council" are defined as the acts of a majority of those present at a meeting where a quorum is established.

4. Statutory Transitions

The community was originally governed by the Horizontal Property Regime Act. Although this was replaced by the Condominium Act in 1986 (and applied retroactively in 2008), the Administrative Law Judge (ALJ) determined that the specific definitions and voting requirements established in the original 1972 Declaration remained binding.

Short-Answer Practice Questions

1. How does Section 1.4 of the Declaration define the "Council"?

Answer: It defines the "Council" as the Council of Co-owners, consisting of all the Owners of the Casitas.

2. Why was the February 9, 2022, "Budget Ratification" vote deemed invalid by the Administrative Law Judge?

Answer: Only 14 Owners participated (in person or by absentee ballot), which was one less than the 15 required to constitute a quorum of the 29-member association.

3. According to Section 6.5 of the Declaration, under what circumstances is an Owner’s right to vote suspended?

Answer: Voting rights are suspended if an Owner is in arrears on payments or in default of the Declaration terms for a period of fifteen (15) days.

4. What was the Respondent’s primary argument regarding the Board's authority to set the budget?

Answer: The Respondent argued that the term "Council" in Section 8.2 referred to the Board of Directors, and that under the Condominium Act (A.R.S. § 33-1243), the board has the power to act in all instances on behalf of the association unless specifically prohibited.

5. How did the ALJ address the fact that the Declaration used the term "Owners" for some actions (like amendments) and "Council" for others?

Answer: The ALJ noted that actions requiring a specific percentage of "Owners" (like terminating the Declaration) are inherently different from day-to-day operations and did not prove that "Council" was intended to mean only the Board of Directors.

Essay Prompts for Deeper Exploration

1. Contractual Interpretation in HOA Governance

Analyze the ALJ's application of the "plain language" rule in this case. How does the requirement to examine the "plain meaning of the words in the context of the contract as a whole" impact the interpretation of the term "Council"? Discuss why the ALJ found the 1972 definition of "Council" more compelling than the general management powers granted to boards under modern statutes.

2. The Impact of Statutory Evolution on Older Declarations

Hilton Casitas was formed under the Horizontal Property Regime Act, which was later repealed and replaced by the Condominium Act. Explore the challenges faced by HOAs when their founding documents (recorded under old statutes) conflict with or use different terminology than current state laws. Should an association be required to amend its documents to match modern statutory language, or should the original intent of the developers and early owners take precedence?

3. Quorum and Collective Decision-Making

Discuss the significance of the quorum in this case. The Respondent argued that 11 out of 14 votes were in favor of the budget, representing a clear majority of those who chose to participate. Evaluate the legal and ethical implications of requiring a strict quorum for financial decisions, particularly in small associations where owner apathy or absence can stall administrative functions.

Glossary of Important Terms

Term	Definition
Administrative Law Judge (ALJ)	A judge who serves as the trier of fact in administrative hearings, such as those held by the Office of Administrative Hearings.
Bylaws	The rules adopted by the Council for the administration of the affairs of the association, subordinate to the Declaration.
Condominium Act	The Arizona statutes (A.R.S. § 33-1201 et seq.) governing condominiums, effective January 1, 1986, and applicable to all condominiums regardless of their creation date.
Council of Co-owners	Defined in the Horizontal Property Regime Act and the Hilton Casitas Declaration as all the owners of the casitas/units.
Declaration	The Declaration of Horizontal Property Regime; the master contract recorded in the county recorder's office that governs the property and its members.
Horizontal Property Regime Act	The precursor to the Condominium Act in Arizona, in effect when the Hilton Casitas Declaration was recorded in 1972.
Motion for Summary Judgment	A request for the judge to rule in favor of one party without a full hearing because there are no genuine issues of material fact.
Owner	The record owner of a Casita (unit) within the Hilton Casitas development.
Pro Rata Share	The proportionate share of common expenses assigned to each Casita, as determined by the Declaration.
Quorum	The minimum number of members required to be present (in person or by proxy) at a meeting to make the proceedings of that meeting valid.
Summary Judgment	A legal decision made by a court without a full trial, based on the principle that no factual disputes exist and the law is clearly on one side.

When Homeowners Hold the Gavel: Lessons from Whitmer v. Hilton Casitas HOA

1. Introduction: The Power of the Purse in HOA Governance

In the world of community associations, there is often a simmering tension between the Board of Directors and the homeowners they serve, particularly when it involves the "power of the purse." Many Boards operate under the assumption that they possess the unilateral authority to dictate financial assessments and annual budgets. However, a recent legal victory for a vigilant homeowner serves as a stark reminder: the Board’s power is not absolute. It is strictly bounded by the community’s founding documents.

The case of R.L. Whitmer v. Hilton Casitas HOA (No. 22F-H2222043-REL) provides a masterclass in why the specific, recorded language of a community’s Declaration—rather than general state law—is the final word on budget matters. In this dispute, a failure to respect the precise definitions within a 50-year-old document led to an invalidated budget and a clear message from the court: when homeowners are given the gavel by their governing documents, the Board cannot simply take it away.

2. The Dispute: A Question of Authority

This case didn't reach a hearing because of a factual "he-said, she-said" argument. Instead, it was decided on a Motion for Summary Judgment, meaning the facts were undisputed, and the outcome rested entirely on the legal interpretation of the HOA's governing documents.

The Petitioner, a homeowner at Hilton Casitas, challenged the HOA’s 2022 annual assessment. He argued that the Board failed to obtain the mandatory affirmative approval from the homeowners as required by the community's Declaration. While the Board attempted a modern "budget ratification" process common in many newer associations, the Petitioner insisted that the association’s specific 1972 rules required a much higher level of homeowner participation.

Timeline of Events:

November 10, 2021: The Board met to discuss and approve a proposed 2022 budget.
Dec 30, 2021 – Jan 19, 2022: The Petitioner sent four separate, written reminders (Dec 30, Jan 13, Jan 16, and Jan 19) to the Board president and treasurer, warning them that they were not complying with Section 8.2 of the Declaration regarding the budget approval process.
January 25, 2022: The Board officially cancelled a previously scheduled (but improperly noticed) budget meeting and issued a new notice for a "Budget Ratification" meeting.
February 9, 2022: The HOA held the meeting to seek owner "ratification" of the assessment.

3. The Definition of "Council": Words That Cost $500

The entire legal dispute revolved around the interpretation of the word "Council." The HOA Board argued that "Council" was simply another term for the Board of Directors. The Petitioner argued it meant the entire body of owners. This single word was so central to the case that the Board’s misinterpretation ultimately led to the Administrative Law Judge (ALJ) ordering the HOA to reimburse the Petitioner’s $500 filing fee.

To find the truth, the ALJ went back to the source. The 1972 Declaration was written under the Horizontal Property Regime Act, which specifically defined the "Council of co-owners" as "all of the co-owners of the building." This historical context was the "smoking gun"—the term "Council" had a fixed legal meaning from the day the community was born.

Key Document Definitions

Term	Source Context Definition
Council	Consists of all of the Owners of the Casitas; defined by the Horizontal Property Regime Act as "all of the co-owners" (Section 1.4).
Owner	The record owner of a Casita (Section 1.8).
Common Expenses	Costs for which each Casita is subject to an annual assessment in an amount to be determined by the Council (Section 8.2).

Because Section 8.2 requires assessments to be "determined by the Council," the Board never had the unilateral authority to set the budget. That power belonged to the owners.

4. The Quorum Quagmire: Why 14 Ballots Weren’t Enough

Even when the Board finally attempted to involve the owners in the February 9, 2022, meeting, they failed to clear the procedural hurdles set by their own Bylaws.

Hilton Casitas consists of 29 condominium units. Article III, Section 6 of the Bylaws defines a quorum as a "majority of members."

The Math: To have a valid meeting of the Council, the HOA needed a quorum of 15 members (a majority of 29).
The Reality: Only 14 owners participated (in person or via absentee ballot).

Because they were one person short of a quorum, the meeting was legally a non-event. Even though 11 of those 14 owners voted in favor of the budget, the vote was invalid. The ALJ clarified that for an act of the "Council" to be valid, 15 members must be present, and at least 8 (a majority of the quorum) must vote in favor.

5. Legal Nuance: Governing Documents vs. The Condominium Act

The HOA’s primary defense was a reliance on modern statute. They argued that the Arizona Condominium Act (A.R.S. § 33-1243) grants Boards broad power to act on behalf of the association unless a power is specifically reserved for the members. Since the Act doesn't explicitly reserve "budget adoption" for members, the Board claimed they could act alone.

The ALJ rejected this, noting that the Condominium Act itself states that a Board may act "except as provided in the declaration." Essentially, the private contract of the Declaration overrides the general permissions of the statute.

Perhaps the most stinging part of the ruling was the ALJ's observation that the Board’s predicament was entirely avoidable. Since the Horizontal Property Regime Act was repealed in 1985, the Board had over 36 years to amend their Declaration to shift budget power from the owners to the Board. They chose not to do so, leaving the 1972 "Council" requirement in full effect.

"An association’s governing documents constitute a contract between the association and the owners. When interpreting contractual provisions, the Office of Administrative Hearings should not construe or interpret a contract if the intent of the parties is clear and unambiguous from its plain language." — Administrative Law Judge Decision

6. The Verdict and Its Implications

On October 13, 2022, the ALJ issued a Final Order that served as a total victory for homeowner vigilance:

Affirmation of the Petition: The judge ruled that the HOA violated Section 8.2 of the Declaration.
Financial Penalty: The HOA was ordered to reimburse the Petitioner’s $500 filing fee.
Future Compliance: The HOA was directed to strictly comply with Section 8.2 for all future assessments, ensuring the "Council" (the owners) determines the amounts.

7. Key Takeaways for HOA Members and Boards

The Whitmer case provides three essential lessons for community governance:

Definitions are Decisive: Words like "Council," "Board," and "Association" are not interchangeable. Boards must look at their community’s specific definitions, particularly in older "legacy" documents, to understand where authority truly lies.
Quorum is Non-Negotiable: A vote—even a unanimous one—is legally worthless if the minimum quorum requirement is not met. Boards must be meticulous in tracking attendance and proxies to ensure their actions are binding.
Modern Statutes Don't Always Erase Old Declarations: While state laws provide a general framework, they often defer to the community’s Declaration. If your documents are outdated or restrictive, "standard practice" will not save you in court.

8. Conclusion

The Whitmer v. Hilton Casitas HOA case underscores a fundamental truth: the Declaration is the supreme law of the association. This was a "clean" legal victory achieved through a Motion for Summary Judgment because the governing documents were clear and unambiguous.

For homeowners, this case is a testament to the fact that vigilance and a thorough understanding of your documents can check a Board’s overreach. For Boards, it is a cautionary tale. Proactivity is key—if your 50-year-old documents no longer serve the practical needs of the community, you must amend them. Until then, you are bound by every word, every definition, and every procedural hurdle your predecessors put in writing.

Case Participants

Petitioner Side

R.L. Whitmer (petitioner)

Respondent Side

Edith Rudder (HOA attorney)
Carpenter, Hazlewood, Delgado & Bolen, PLC

Neutral Parties

Tammy L. Eigenheer (ALJ)
Office of Administrative Hearings
Louis Dettorre (Commissioner)
Arizona Department of Real Estate
Miranda Alvarez (Legal Secretary)
Office of Administrative Hearings
c. serrano (Legal Secretary)
Office of Administrative Hearings

James Iannuzo v. Moonrise at Starr Pass Community Association

Posted on December 30, 2021 by [email protected]

Case Summary

Case ID	22F-H2221014-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2021-12-30
Administrative Law Judge	Thomas Shedden
Outcome	The Petitioner prevailed by showing the Association violated ARIZ. REV. STAT. section 33-1243. The Association was ordered to refund the $500.00 filing fee. Petitioner's requests for voiding election results, assessing a civil penalty, and appointing an administrator were denied.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	James Iannuzo	Counsel	—
Respondent	Moonrise at Starr Pass Community Association	Counsel	Jason E. Smith

Alleged Violations

ARIZ. REV. STAT. section 33-1243(H)(4)

Outcome Summary

The Petitioner prevailed by showing the Association violated ARIZ. REV. STAT. section 33-1243. The Association was ordered to refund the $500.00 filing fee. Petitioner's requests for voiding election results, assessing a civil penalty, and appointing an administrator were denied.

Key Issues & Findings

Violation of statutory procedure for board member removal concerning ballot tabulation after deadline.

The Association violated the statute by tabulating ballots for a recall election at the August 19, 2021 meeting, as those ballots were only valid for the canceled June 30, 2021 special meeting.

Orders: Respondent must pay the Petitioner his filing fee of $500.00 within thirty days of the Order. Other requested remedies (voiding results, assessing civil penalty, appointing administrator) were denied.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

ARIZ. REV. STAT. § 33-1243
ARIZ. REV. STAT. § 33-1243(H)(4)
ARIZ. REV. STAT. § 33-1250(C)(3)

Analytics Highlights

Topics: HOA board recall, Ballot tabulation, Quorum dispute, Statutory violation, Filing fee refund

Additional Citations:

ARIZ. REV. STAT. § 33-1243
ARIZ. REV. STAT. § 33-1250
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 32-2199.01
ARIZ. ADMIN. CODE § R2-19-119
Whitmer v. Hilton Casitas Homeowners Ass'n
Gutierrez v. Industrial Commission of Arizona
State v. McFall

Related election workflow tool

Preview HOABallot election workflows

Video Overview

Audio Overview

Decision Documents

22F-H2221014-REL Decision – 935534.pdf

Uploaded 2026-01-23T17:41:19 (128.9 KB)

22F-H2221014-REL Decision – 945764.pdf

Uploaded 2026-01-23T17:41:24 (48.2 KB)

22F-H2221014-REL Decision – 949683.pdf

Uploaded 2026-01-23T17:41:26 (49.4 KB)

This is a summary of the Administrative Law Judge (ALJ) Decision regarding the Petitioner, James Iannuzo, versus the Respondent, Moonrise at Starr Pass Community Association. The hearing took place on December 13, 2021.

Key Facts and Procedural History

The case centered on the Association's handling of a petition to recall and remove two board members, specifically addressing violations of ARIZ. REV. STAT. section 33-1243.

The Association received the recall petitions and scheduled a Special Meeting for June 30, 2021. This meeting was required to be "called, noticed and held within thirty days after receipt of the petition" pursuant to A.R.S. § 33-1243(H)(4)(c). A quorum required 20% of eligible voters (45 ballots).

The Association required ballots to be received by June 29, 2021. On the morning of June 30, 2021, the Association canceled the meeting, announcing that it had failed to achieve a quorum. Subsequently, on or about July 14, 2021, the Association announced that late-received ballots provided a quorum and scheduled a new meeting for August 19, 2021, solely to count the ballots originally issued for the June 30th meeting.

The single issue pursued by Petitioner Iannuzo was that the tabulation of Special Meeting ballots received after the statutory deadline violated ARIZ. REV. STAT. section 33-1243(H)(4).

Key Arguments

Petitioner's Argument: Iannuzo argued that the August 19, 2021, recount results should be voided because the ballots, notice, and voting instructions specifically stated the ballots were valid only for the June 30, 2021, Special Meeting.

Respondent's Argument: The Association argued that it could not hold the June 30th meeting due to lack of a quorum. They contended that merely setting the meeting was sufficient to satisfy the 30-day requirement of A.R.S. § 33-1243(H)(4)(c), and the statute does not specify when votes must be tallied.

Legal Findings and Outcome

The Administrative Law Judge (ALJ) found that the Association violated ARIZ. REV. STAT. section 33-1243.

Statutory Violation: The Association acknowledged it did not conduct the June 30th special meeting, meaning no meeting was conducted within 30 days of receiving the recall petitions, a violation of A.R.S. § 33-1243(H)(4)(c).
Invalid Ballot Counting: The decision to count the votes at the August 19th meeting was a violation because, under statute (A.R.S. § 33-1250(C)(3)) and by the Association’s own documentation, the ballot was valid only for the specified June 30th election or meeting. The use of these ballots at the August 19th meeting was non-compliant.

Final Decision and Order:

James Iannuzo was declared the prevailing party.
The Association was ordered to pay Mr. Iannuzo his filing fee of $500.00 within thirty days of the Order.
The ALJ declined Iannuzo’s requests to void the election results, assess a civil penalty, or appoint an oversight administrator, concluding these remedies were outside the scope of the tribunal’s authority under ARIZ. REV. STAT. § 32-2199.02(A).

Subsequent Advisement: Following the Order, the Office of Administrative Hearings later advised the parties that OAH's enabling statutes do not provide authority for it to compel the Respondent to comply with the Order (the fee refund).

Questions

Question

What is the deadline for an HOA to hold a special meeting after receiving a petition to recall board members?

Short Answer

The meeting must be held within 30 days of receiving the petition.

Detailed Answer

According to Arizona statute, once an HOA receives a petition for the removal of a board member, it is legally required to call, notice, and actually hold the special meeting within a 30-day timeframe.

Alj Quote

The special meeting shall be called, noticed and held within thirty days after receipt of the petition.

Legal Basis

ARIZ. REV. STAT. § 33-1243(H)(4)(c)

Topic Tags

recall election
deadlines
board removal

Question

Can an HOA count ballots collected for a specific meeting date at a later, rescheduled meeting?

Short Answer

No, ballots are only valid for the specific meeting they were issued for.

Detailed Answer

An HOA cannot use ballots collected for a canceled meeting at a subsequent meeting held on a different date. The decision clarified that counting such ballots violates the statute because the ballots are strictly limited to the meeting for which they were originally valid.

Alj Quote

The Association’s decision to count the ballots at the August 19th meeting does not comply with section 33-1243 because those ballots were valid only for the June 30th meeting as evidenced by the ballots, the Notice, and the voting instructions.

Legal Basis

ARIZ. REV. STAT. § 33-1250(C)(3)

Topic Tags

voting
ballots
meetings

Question

Can an Administrative Law Judge (ALJ) void an HOA election or remove board members?

Short Answer

No, the ALJ does not have the authority to void election results or appoint administrators.

Detailed Answer

While an ALJ can determine if a violation occurred and levy penalties, they cannot order an election to be voided or appoint an independent administrator to oversee the HOA. These remedies are outside the tribunal's statutory scope.

Alj Quote

Mr. Iannuzo’s requests that the tribunal void the election results and that an oversight administrator be appointed have not been shown to be within the scope of the tribunal’s authority.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

legal remedies
ALJ authority
elections

Question

Is an HOA allowed to determine a quorum based solely on mail-in ballots before the meeting starts?

Short Answer

Likely no; the quorum should be determined based on eligible voters present at the time of the meeting.

Detailed Answer

The ALJ noted that the statute calls for a quorum to be determined based on the number of eligible voters at the time of the meeting, implying that canceling a meeting beforehand based solely on returned ballots is not supported by persuasive legal argument.

Alj Quote

The Association presented no persuasive legal argument or authority showing that in determining whether a quorum existed it was appropriate for the Association to use only the ballots returned by June 29th, rather than using the ballots and the members present at the meeting on June 30th.

Legal Basis

ARIZ. REV. STAT. § 33-1243(H)(4)(d)

Topic Tags

quorum
meetings
voting

Question

If I win my case against the HOA, can I get my filing fee refunded?

Short Answer

Yes, if the homeowner prevails, the HOA must be ordered to pay the filing fee.

Detailed Answer

If the Administrative Law Judge determines that the homeowner has prevailed in proving a violation, the law mandates that the Judge order the HOA to reimburse the petitioner for the filing fee.

Alj Quote

If the petitioner prevails, the administrative law judge shall order the respondent to pay to the petitioner the filing fee required by section 32-2199.01.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

fees
penalties
reimbursement

Question

Can an HOA fix a violation for missing the 30-day recall meeting deadline by holding the meeting later?

Short Answer

No, this specific violation cannot be cured after the fact.

Detailed Answer

Once the 30-day window for holding a recall meeting has passed, the violation is established and cannot be retroactively fixed by holding the meeting late.

Alj Quote

And although the Association did not conduct the required meeting within 30 days of receiving the recall petitions, this violation cannot be cured.

Legal Basis

ARIZ. REV. STAT. § 33-1243

Topic Tags

violations
compliance
deadlines

Case

Docket No: 22F-H2221014-REL
Case Title: James Iannuzo vs. Moonrise at Starr Pass Community Association
Decision Date: 2021-12-30
Alj Name: Thomas Shedden
Tribunal: OAH
Agency: ADRE

Questions

Question

What is the deadline for an HOA to hold a special meeting after receiving a petition to recall board members?

Short Answer

The meeting must be held within 30 days of receiving the petition.

Detailed Answer

Alj Quote

The special meeting shall be called, noticed and held within thirty days after receipt of the petition.

Legal Basis

ARIZ. REV. STAT. § 33-1243(H)(4)(c)

Topic Tags

recall election
deadlines
board removal

Question

Can an HOA count ballots collected for a specific meeting date at a later, rescheduled meeting?

Short Answer

No, ballots are only valid for the specific meeting they were issued for.

Detailed Answer

Alj Quote

Legal Basis

ARIZ. REV. STAT. § 33-1250(C)(3)

Topic Tags

voting
ballots
meetings

Question

Can an Administrative Law Judge (ALJ) void an HOA election or remove board members?

Short Answer

No, the ALJ does not have the authority to void election results or appoint administrators.

Detailed Answer

Alj Quote

Mr. Iannuzo’s requests that the tribunal void the election results and that an oversight administrator be appointed have not been shown to be within the scope of the tribunal’s authority.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

legal remedies
ALJ authority
elections

Question

Is an HOA allowed to determine a quorum based solely on mail-in ballots before the meeting starts?

Short Answer

Likely no; the quorum should be determined based on eligible voters present at the time of the meeting.

Detailed Answer

Alj Quote

Legal Basis

ARIZ. REV. STAT. § 33-1243(H)(4)(d)

Topic Tags

quorum
meetings
voting

Question

If I win my case against the HOA, can I get my filing fee refunded?

Short Answer

Yes, if the homeowner prevails, the HOA must be ordered to pay the filing fee.

Detailed Answer

If the Administrative Law Judge determines that the homeowner has prevailed in proving a violation, the law mandates that the Judge order the HOA to reimburse the petitioner for the filing fee.

Alj Quote

If the petitioner prevails, the administrative law judge shall order the respondent to pay to the petitioner the filing fee required by section 32-2199.01.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

fees
penalties
reimbursement

Question

Can an HOA fix a violation for missing the 30-day recall meeting deadline by holding the meeting later?

Short Answer

No, this specific violation cannot be cured after the fact.

Detailed Answer

Once the 30-day window for holding a recall meeting has passed, the violation is established and cannot be retroactively fixed by holding the meeting late.

Alj Quote

And although the Association did not conduct the required meeting within 30 days of receiving the recall petitions, this violation cannot be cured.

Legal Basis

ARIZ. REV. STAT. § 33-1243

Topic Tags

violations
compliance
deadlines

Case

Docket No: 22F-H2221014-REL
Case Title: James Iannuzo vs. Moonrise at Starr Pass Community Association
Decision Date: 2021-12-30
Alj Name: Thomas Shedden
Tribunal: OAH
Agency: ADRE

Case Participants

Petitioner Side

James Iannuzo (petitioner)
Appeared and testified on his own behalf

Respondent Side

Jason E. Smith (respondent attorney)
Smith & Wamsley, PLLC
Counsel for Respondent

Neutral Parties

Thomas Shedden (ALJ)
Office of Administrative Hearings
Louis Dettorre (Commissioner)
Arizona Department of Real Estate
Miranda Alvarez (clerk)
Transmitted Decision
c. serrano (clerk)
Transmitted Advisements
AHansen (staff)
Arizona Department of Real Estate
Recipient of transmission (Attn)
djones (staff)
Arizona Department of Real Estate
Recipient of transmission (Attn)
DGardner (staff)
Arizona Department of Real Estate
Recipient of transmission (Attn)
vnunez (staff)
Arizona Department of Real Estate
Recipient of transmission (Attn)

Nancy Bender v. Foothills Townhomes Association, Inc.

Posted on August 23, 2021 by [email protected]

Case Summary

Case ID	21F-H2121048-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2021-08-23
Administrative Law Judge	Jenna Clark
Outcome	The petition was denied because Petitioner failed to sustain her burden of proof that the Association violated Community Bylaws 3.03, as the issue regarding a special meeting was found to be unripe. Other alleged statutory violations were inapplicable.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Nancy Bender	Counsel	—
Respondent	Foothills Townhomes Association, Inc.	Counsel	Jason Smith, Esq.

Alleged Violations

Community Bylaws 3.03

Outcome Summary

The petition was denied because Petitioner failed to sustain her burden of proof that the Association violated Community Bylaws 3.03, as the issue regarding a special meeting was found to be unripe. Other alleged statutory violations were inapplicable.

Why this result: Petitioner did not sustain the burden of proof (preponderance of the evidence) on the Bylaws violation because the condition precedent (requesting or holding a special meeting) had not occurred, rendering the issue unripe. The statutory violations cited were inapplicable to the Association.

Key Issues & Findings

Whether Foothills Townhomes Association, Inc. violated Community Bylaws 3.03 and ARIZ. REV. STAT. §§ 33-1248(A), 33-1248(B), and 33-1261(D).

Petitioner alleged the Association violated Community Bylaws 3.03 when it drafted and posted a letter directed to Petitioner on its online platform, in response to private correspondence (a draft special meeting request) that had not yet been submitted to the Board, which Petitioner perceived as an attempt to dismantle a platform for discussion and retaliate against her.

Orders: Petitioner’s petition is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

Community Bylaws 3.03
ARIZ. REV. STAT. §§ 33-1248(A)
ARIZ. REV. STAT. §§ 33-1248(B)
ARIZ. REV. STAT. §§ 33-1261(D)

Analytics Highlights

Topics: HOA Dispute, Planned Community, Bylaws Violation, Jurisdiction, Unripe Issue, Special Meeting, Filing Fee Paid

Additional Citations:

ARIZ. REV. STAT. §§ 33-1248(A)
ARIZ. REV. STAT. §§ 33-1248(B)
ARIZ. REV. STAT. §§ 33-1261(D)
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. §§ 32-2199.01(A)
ARIZ. REV. STAT. §§ 32-2199.01(D)
ARIZ. REV. STAT. §§ 32-2199.02
ARIZ. REV. STAT. §§ 41-1092 et seq.
ARIZ. REV. STAT. § 33-1243
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov
Community Bylaws 3.03

Video Overview

Audio Overview

Decision Documents

21F-H2121048-REL Decision – 906190.pdf

Uploaded 2026-01-23T17:37:43 (117.4 KB)

This is a concise summary of the Administrative Law Judge Decision in the case of Nancy Bender v. Foothills Townhomes Association, Inc. (No. 21F-H2121048-REL), heard on August 2, 2021, by Administrative Law Judge Jenna Clark.

Key Facts and Background

The Petitioner, Nancy Bender, is an owner and member of the Foothills Townhomes Association, Inc. (Respondent), a planned community association in Arizona. The Association is governed by its Covenants, Conditions, and Restrictions (CC&Rs) and Bylaws, which form an enforceable contract between the Association and its members.

The dispute arose after the Petitioner drafted a letter, along with other homeowners, intended to request a special meeting to discuss issues such as meeting minutes, water bills, financial statements, and due increases. Although this draft letter was never formally submitted to the Board to schedule a special meeting, the Association came into possession of the draft. On February 15, 2021, the Board posted the Petitioner’s draft letter on the HOA’s online platform, along with a written response directed to the Petitioner by the Association’s attorney. Petitioner alleged that this conduct was an act of retaliation intended to dismantle a platform for discussion and that the Association breached its fiduciary duty.

Main Issues and Legal Arguments

Petitioner filed an amended single-issue petition alleging the Association violated Community Bylaws 3.03 and specific Arizona statutes: ARIZ. REV. STAT. §§ 33-1248(A), 33-1248(B), and 33-1261(D). The Administrative Law Judge (ALJ) had jurisdiction over disputes between owners and planned community associations regarding violations of community documents or regulating statutes. The Petitioner bore the burden of proving the violation by a preponderance of the evidence.

Key Legal Points and Findings

Statutory Claims Dismissed as Inapplicable: The Tribunal found that the alleged statutory violations (ARIZ. REV. STAT. §§ 33-1248(A), 33-1248(B), and 33-1261(D)) were inapplicable because the Respondent Association is not subject to governance or regulation by those statutes, thus rendering those concerns moot.
Focus on Bylaws 3.03: Because the statutory claims were moot and Petitioner paid for adjudication of only one issue, the ALJ focused solely on whether the Association violated Community Bylaws Section 3.03. Bylaws Section 3.03 governs the procedure for calling a special meeting of homeowners.
Issue Found Unripe: The ALJ determined that no violation of Bylaws Section 3.03 existed because the issue was unripe. The record showed that a special meeting was *not* held, nor had the Petitioner formally requested one prior to filing her petition. The Petitioner’s actual grievance—the Association’s public dissemination and address of her private correspondence—was determined *not* to be a violation of Bylaws Section 3.03.

Outcome and Decision

The Administrative Law Judge concluded that the Petitioner failed to sustain her burden of proof by a preponderance of the evidence that the Association violated Bylaws Section 3.03. Therefore, the Petitioner's petition was denied.

Questions

Question

If I pay for a single-issue petition, can the judge rule on other grievances I mention during the hearing?

Short Answer

No. The tribunal is limited to the specific issue paid for and filed.

Detailed Answer

If a petitioner only pays the filing fee for the adjudication of one issue, the Administrative Law Judge cannot address other issues raised in the petition or during testimony.

Alj Quote

Because Petitioner only paid for the adjudication of one (1) issue, this Tribunal may not address all of the issues Petitioner raised in her petition or during her testimony.

Legal Basis

ARIZ. REV. STAT. § 32-2199.05

Topic Tags

procedure
jurisdiction
filing fees

Question

What happens if I cite Condominium statutes in a dispute regarding a Planned Community?

Short Answer

The claims will likely be dismissed as moot or inapplicable.

Detailed Answer

Different statutes regulate Condominiums (Title 33, Chapter 9) and Planned Communities (Title 33, Chapter 16). If a homeowner alleges violations of statutes that do not govern their specific type of association, the burden of proof is not met and the concerns are rendered moot.

Alj Quote

However, because Petitioner’s amended petition specifically alleges violations of ARIZ. REV. STAT. § 33-1248(A), 33-1248(B) and 33-1261(D), which are inapplicable as the Association is not subject to governance or regulation by these statutes, the concerns are rendered moot.

Legal Basis

ARIZ. REV. STAT. Title 33, Chapter 9 vs. Chapter 16

Topic Tags

legal standards
statutes
planned communities

Question

Does the HOA posting my private correspondence on the community website violate bylaws regarding special meetings?

Short Answer

No. Public dissemination of private letters does not violate bylaws strictly governing the calling of meetings.

Detailed Answer

While a homeowner may feel that publishing private correspondence is retaliatory or malicious, it does not constitute a violation of bylaws specifically designed to regulate the calling and holding of special meetings.

Alj Quote

Instead, Petitioner’s grievance is the Association’s public dissemination and address of her private correspondence; which is not a violation of Bylaws Section 3.03.

Legal Basis

Bylaws Section 3.03

Topic Tags

privacy
bylaws
communications

Question

Can the ADRE hear claims regarding my constitutional rights or general 'rights as a homeowner'?

Short Answer

No. The Department's jurisdiction is limited to violations of community documents and specific statutes.

Detailed Answer

The Department lacks jurisdiction over broad claims such as constitutional rights, general homeowner rights, or fiduciary responsibilities unless they are framed as specific violations of the community documents or relevant statutes.

Alj Quote

Petitioner also alleged no less than four (4) additional violations in her Amended Petition that the Department has no jurisdiction over or she lacked standing to bring, such as (1) 'my rights as a homeowner,' (2) 'my constitutional rights as an American citizen'…

Legal Basis

ARIZ. REV. STAT. §§ 32-2102, 32-2199

Topic Tags

jurisdiction
constitutional rights
adre authority

Question

Can I claim the HOA violated the rules for calling a special meeting if I never formally requested one?

Short Answer

No. The issue is considered 'unripe' if no meeting was actually requested or held.

Detailed Answer

A violation regarding the calling of a special meeting cannot be established if the homeowner never submitted the request for the meeting prior to filing the petition. The tribunal cannot rule on a hypothetical refusal.

Alj Quote

No violation of Bylaws Section 3.03 exists because the issue is unripe. Here, the record reflects that a special meeting was not held, nor had Petitioner requested one prior to the filing of her petition in this matter.

Legal Basis

ripeness doctrine

Topic Tags

meetings
procedural requirements
violations

Question

What is the standard of proof required for a homeowner to win an administrative hearing?

Short Answer

Preponderance of the evidence.

Detailed Answer

The petitioner must provide enough evidence to convince the judge that their contention is 'more probably true than not.' It requires superior evidentiary weight, not necessarily a greater number of witnesses.

Alj Quote

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

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

burden of proof
legal standards
evidence

Question

Are the CC&Rs considered a legal contract between me and the HOA?

Short Answer

Yes. CC&Rs form an enforceable contract that binds the owner upon purchase.

Detailed Answer

When a party purchases a property within the development, they agree to be bound by the terms of the CC&Rs and Bylaws, creating a contractual relationship.

Alj Quote

Thus, the CC&Rs form an enforceable contract between the Association and each property owner, and the Bylaws outline how the Association is permitted to operate.

Legal Basis

Contract Law Principles

Topic Tags

CC&Rs
contracts
enforcement

Case

Docket No: 21F-H2121048-REL
Case Title: Nancy Bender vs. Foothills Townhomes Association, Inc.
Decision Date: 2021-08-23
Alj Name: Jenna Clark
Tribunal: OAH
Agency: ADRE

Questions

Question

If I pay for a single-issue petition, can the judge rule on other grievances I mention during the hearing?

Short Answer

No. The tribunal is limited to the specific issue paid for and filed.

Detailed Answer

If a petitioner only pays the filing fee for the adjudication of one issue, the Administrative Law Judge cannot address other issues raised in the petition or during testimony.

Alj Quote

Because Petitioner only paid for the adjudication of one (1) issue, this Tribunal may not address all of the issues Petitioner raised in her petition or during her testimony.

Legal Basis

ARIZ. REV. STAT. § 32-2199.05

Topic Tags

procedure
jurisdiction
filing fees

Question

What happens if I cite Condominium statutes in a dispute regarding a Planned Community?

Short Answer

The claims will likely be dismissed as moot or inapplicable.

Detailed Answer

Alj Quote

Legal Basis

ARIZ. REV. STAT. Title 33, Chapter 9 vs. Chapter 16

Topic Tags

legal standards
statutes
planned communities

Question

Does the HOA posting my private correspondence on the community website violate bylaws regarding special meetings?

Short Answer

No. Public dissemination of private letters does not violate bylaws strictly governing the calling of meetings.

Detailed Answer

Alj Quote

Instead, Petitioner’s grievance is the Association’s public dissemination and address of her private correspondence; which is not a violation of Bylaws Section 3.03.

Legal Basis

Bylaws Section 3.03

Topic Tags

privacy
bylaws
communications

Question

Can the ADRE hear claims regarding my constitutional rights or general 'rights as a homeowner'?

Short Answer

No. The Department's jurisdiction is limited to violations of community documents and specific statutes.

Detailed Answer

Alj Quote

Legal Basis

ARIZ. REV. STAT. §§ 32-2102, 32-2199

Topic Tags

jurisdiction
constitutional rights
adre authority

Question

Can I claim the HOA violated the rules for calling a special meeting if I never formally requested one?

Short Answer

No. The issue is considered 'unripe' if no meeting was actually requested or held.

Detailed Answer

Alj Quote

Legal Basis

ripeness doctrine

Topic Tags

meetings
procedural requirements
violations

Question

What is the standard of proof required for a homeowner to win an administrative hearing?

Short Answer

Preponderance of the evidence.

Detailed Answer

Alj Quote

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

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

burden of proof
legal standards
evidence

Question

Are the CC&Rs considered a legal contract between me and the HOA?

Short Answer

Yes. CC&Rs form an enforceable contract that binds the owner upon purchase.

Detailed Answer

When a party purchases a property within the development, they agree to be bound by the terms of the CC&Rs and Bylaws, creating a contractual relationship.

Alj Quote

Thus, the CC&Rs form an enforceable contract between the Association and each property owner, and the Bylaws outline how the Association is permitted to operate.

Legal Basis

Contract Law Principles

Topic Tags

CC&Rs
contracts
enforcement

Case

Docket No: 21F-H2121048-REL
Case Title: Nancy Bender vs. Foothills Townhomes Association, Inc.
Decision Date: 2021-08-23
Alj Name: Jenna Clark
Tribunal: OAH
Agency: ADRE

Case Participants

Petitioner Side

Nancy Bender (petitioner)
Foothills Townhomes owner/member

Respondent Side

Jason Smith (respondent attorney)
Goodman Holmgren Smith

Neutral Parties

Jenna Clark (ALJ)
Office of Administrative Hearings
Judy Lowe (Commissioner)
Arizona Department of Real Estate
Dan Gardener (Constituent Services Manager)
Arizona Department of Real Estate

Michael J Stoltenberg v. Rancho Del Oro Homeowners Association

Posted on August 3, 2020 by [email protected]

Case Summary

Case ID	20F-H2020049-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2021-03-08
Administrative Law Judge	Jenna Clark
Outcome	loss
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

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

Alleged Violations

CC&Rs Section 14.8

Outcome Summary

The Administrative Law Judge denied the petition, concluding that the Association did not violate CC&Rs Section 14.8. The provision was determined to be inapplicable, governing the Association’s obligation to provide notice, not the methods homeowners must use to send payments.

Why this result: Petitioner failed to meet the burden of proof. CC&Rs Section 14.8 was inapplicable, and Petitioner's chosen restricted delivery method for assessment payments caused delays, which were not the responsibility of the Respondent.

Key Issues & Findings

Whether the Association violated CC&Rs 14.8 concerning notice obligations.

Petitioner alleged the Association violated CC&Rs 14.8 by improperly handling or failing to receive his monthly assessment payments, which he sent via restricted delivery to a board member despite receiving instructions to mail payments to the Association's designated P.O. Box address.

Orders: Petitioner's petition was denied because he failed to sustain his burden of proof that the Association violated CC&Rs Section 14.8.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 33-1243
CC&Rs 14.8

Analytics Highlights

Topics: homeowner assessments, CC&Rs interpretation, restricted delivery, jurisdiction, notice provision, rehearing

Additional Citations:

ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 33-1243
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 10-3842
CC&Rs 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 – 861466.pdf

Uploaded 2026-04-24T11:25:54 (145.6 KB)

20F-H2020049-REL Decision – 811290.pdf

Uploaded 2026-04-24T11:25:59 (131.7 KB)

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: Stoltenberg v. Rancho Del Oro Homeowners Association

This guide provides a detailed review of the administrative case Michael J Stoltenberg v. Rancho Del Oro Homeowners Association, Case No. 20F-H2020049-REL, including the initial hearing and a subsequent rehearing. It is designed to test and deepen understanding of the facts, legal arguments, procedures, and outcomes presented in the official decisions.

Short-Answer Quiz

Instructions: Please answer the following questions in two to three complete sentences, drawing information exclusively from the provided legal documents.

1. Who were the primary parties in this legal dispute, and what was their relationship to one another?

2. What was the specific allegation Michael Stoltenberg made against the Rancho Del Oro Homeowners Association in his petition?

3. What specific action did the Petitioner take regarding his monthly assessment payments starting in November 2019?

4. According to the Association, why was Section 14.8 of the CC&Rs not applicable to the Petitioner’s complaint?

5. What were the negative consequences the Petitioner faced as a result of his payments being received late by the Association?

6. What was the legal standard of proof the Petitioner was required to meet, and did the judge find he had met it?

7. What were the two grounds upon which the Petitioner requested a rehearing after the initial decision?

8. Why was the Petitioner’s citation of Arizona Revised Statutes (ARIZ. REV. STAT.) § 10-3842 dismissed during the proceedings?

9. What was the final ruling in the Administrative Law Judge Decision issued on March 08, 2021, following the rehearing?

10. After the final order was issued, what was the Petitioner’s sole remaining avenue for appeal?

——————————————————————————–

Answer Key

1. The primary parties were Michael J Stoltenberg, the Petitioner, and the Rancho Del Oro Homeowners Association, the Respondent. Mr. Stoltenberg was a condominium owner and a member of the Association, which governed the residential development where he lived.

2. In his petition filed on March 2, 2020, Stoltenberg alleged the Association violated Section 14.8 of its CC&Rs and Arizona Revised Statutes §§ 10-3842 and 10-801. He specifically claimed the Association “fail to do their job, and are acting in bad faith.”

3. Beginning in November 2019, the Petitioner began sending his monthly assessment payments to the Association’s P.O. Box via restricted delivery from the United States Postal Service. He specified that the mail was for board member Rhea Carlisle’s pickup only, despite knowing she was a volunteer and not an employee of the property management company that handled mail.

4. The Association argued that Section 14.8 of the CC&Rs was inapplicable because it governs the Association’s notice obligations to its members. The judge agreed, stating the section has no binding authority over how homeowners send mail to the Association.

5. Each time the Petitioner’s monthly assessment was received late, he was assessed a late fee by the Association. Additionally, each late payment occurrence placed his residence in danger of foreclosure.

6. The Petitioner bore the burden of proving his case by a “preponderance of the evidence,” which means showing the contention is more probably true than not. The judge concluded in both decisions that the Petitioner failed to sustain this burden of proof.

7. The Petitioner requested a rehearing on the grounds that there was an alleged “Error in the admission or rejection of evidence or other errors of law occurring during the proceeding” and because “[t]he findings of fact or decision is arbitrary, capricious, or an abuse of discretion.”

8. The citation of ARIZ. REV. STAT. § 10-3842, which concerns standards of conduct for officers of nonprofit corporations, was dismissed because it falls outside the jurisdiction of the Arizona Department of Real Estate’s HOA Dispute Process. The Petitioner was advised of these jurisdictional limitations when he filed his petition.

9. The final ruling issued on March 8, 2021, denied the Petitioner’s petition once again. The judge affirmed the original findings, concluding there was no violation of Section 14.8 and that the Petitioner had not introduced any evidence to support his grounds for a rehearing.

10. After the final order resulting from the rehearing, the Petitioner’s only remaining recourse was to seek judicial review by filing an appeal with the superior court. This appeal had to be filed within thirty-five days from the date the order was served upon the parties.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed for a more in-depth analysis. Formulate a comprehensive essay response for each prompt, using specific evidence and details from the source documents to support your arguments.

1. Analyze the legal reasoning of Administrative Law Judge Jenna Clark in her interpretation of Section 14.8 of the CC&Rs. Explain why this section was deemed inapplicable to the Petitioner’s situation and how this interpretation was central to the case’s outcome in both the hearing and rehearing.

2. Discuss the concept of “burden of proof” as it applied in this case. Explain who held the burden, what the “preponderance of the evidence” standard required, and why the Petitioner ultimately failed to meet this standard in the judgment of the court.

3. Trace the complete procedural history of this case, starting from the initial petition. Detail the key dates, filings (petition, answer, rehearing request), hearings, and decisions, explaining the significance of each step in the administrative legal process from March 2020 to March 2021.

4. Examine the actions of the Petitioner, Michael Stoltenberg, beginning in November 2019. Evaluate his rationale for unilaterally changing his payment method, the specific steps he took, and how his choices directly led to the late fees and risk of foreclosure he sought to avoid.

5. Explain the roles and jurisdictional limitations of the Arizona Department of Real Estate (the Department) and the Office of Administrative Hearings (OAH) in this dispute. Why were certain statutes cited by the Petitioner, such as those under Title 10 of the ARIZ. REV. STAT., dismissed by the court as being outside its purview?

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge, in this case Jenna Clark, who presides over administrative hearings, reviews evidence, and issues decisions for state agencies.

Answer

The formal written response filed by the Respondent (the Association) on March 24, 2020, denying all items in the Petitioner’s complaint.

Arizona Department of Real Estate (Department)

The state agency authorized by statute to receive and decide petitions for hearings regarding disputes within homeowners’ associations in Arizona.

Arizona Revised Statutes (ARIZ. REV. STAT.)

The collection of laws enacted by the Arizona state legislature. Specific statutes were cited by the Petitioner and referenced by the court.

Association

The Rancho Del Oro Homeowners Association, a condominium association responsible for governing the real estate development and enforcing its CC&Rs.

Board of Directors (the Board)

The governing body that oversees the Homeowners Association.

Burden of Proof

The legal obligation of a party in a trial (in this case, the Petitioner) to produce evidence that proves the claims they have made against the other party.

An acronym for the Declaration of Covenants, Conditions and Restrictions. These are the governing legal documents that form an enforceable contract between the Association and each property owner.

Conclusions of Law

The section of the judge’s decision that applies legal principles and statutes to the established facts of the case to reach a final judgment.

Findings of Fact

The section of the judge’s decision that details the factual background, procedural history, and evidence presented during the hearing.

Hearing

A formal proceeding before an administrative law judge where parties present evidence and arguments. In this case, hearings were held on July 14, 2020, and February 16, 2021.

Jurisdiction

The official power to make legal decisions and judgments. The Department’s jurisdiction was limited and did not extend to disputes arising from Title 10 of the Arizona Revised Statutes.

Office of Administrative Hearings (OAH)

An independent state agency that provides administrative law judges to conduct hearings for other state agencies, ensuring impartiality.

The final, binding command issued by the judge at the conclusion of the decision. In this case, the order was to deny the Petitioner’s petition.

Petitioner

The party who initiates a legal action by filing a petition. In this case, Michael J Stoltenberg.

Petition

The formal legal document filed by the Petitioner on March 2, 2020, to initiate the hearing process with the Department.

Preponderance of the Evidence

The standard of proof in this civil administrative case. It is defined as evidence that is sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Rehearing

A second hearing granted to a party to re-examine the issues of a case, typically requested on grounds of legal error or an unjust decision. The Petitioner’s request for a rehearing was granted.

Respondent

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

Restricted Delivery

A service offered by the United States Postal Service (USPS) that ensures mail is delivered only to a specific addressee or their authorized agent.

Statutory Agent

An individual or entity designated to receive legal notices and service of process on behalf of a corporation or association. For the Association, this was Diana Crites.

Select all sources

811290.pdf

861466.pdf

No emoji found

20F-H2020049-REL-RHG

2 sources

These documents contain the Administrative Law Judge Decisions stemming from a dispute between a homeowner, Michael J. Stoltenberg, and the Rancho Del Oro Homeowners Association regarding the timely delivery of monthly assessment payments. The initial decision in August 2020 denied the homeowner’s petition, finding that the Association did not violate Section 14.8 of the Covenants, Conditions and Restrictions (CC&Rs), as that provision governs the Association’s notice obligation to members, not homeowners’ mail to the Association. Following a granted request for rehearing due to alleged errors of law, the subsequent March 2021 decision affirmed the original ruling, concluding that the homeowner’s self-imposed restriction on mail delivery caused the delays and that the relevant CC&R section was inapplicable to the petitioner’s complaint. Both decisions noted that the Office of Administrative Hearings (OAH) lacked jurisdiction over one of the statutes cited by the petitioner.

What were the legal and procedural reasons for granting the rehearing request?

How did the interpretation of CC&R Section 14.8 resolve the core dispute?

What was the Petitioner’s basis for claiming a violation against the Association?

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
Dan Gardner (HOA coordinator)
ADRE
Transmitted decision electronically (c/o Commissioner Judy Lowe)

Werner A Reis v. Canyon Mesa Townhouse Association

Posted on July 14, 2020 by [email protected]

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	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.
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)
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)

Video Overview

Audio Overview

Decision Documents

20F-H2019026-REL-RHG Decision – 792741.pdf

Uploaded 2026-01-23T17:30:49 (47.0 KB)

20F-H2019026-REL-RHG Decision – 806920.pdf

Uploaded 2026-01-23T17:30:53 (175.9 KB)

20F-H2019026-REL-RHG Decision – ../20F-H2019026-REL/770924.pdf

Uploaded 2026-01-23T17:30:56 (153.6 KB)

Briefing Document: Reis v. Canyon Mesa Townhouse Association

Executive Summary

This document synthesizes the legal dispute between homeowner Werner A. Reis (Petitioner) and the Canyon Mesa Townhouse Association (Respondent) concerning the modification of a common area tennis court. The core of the dispute, adjudicated under case numbers 20F-H2019026-REL and 20F-H2019026-REL-RHG, was the Association’s decision in June 2019 to paint pickleball lines on one of its two community tennis courts. The Petitioner alleged this action violated Article III, section 1 of the community’s Covenants, Conditions, and Restrictions (CC&Rs), infringing upon his nonexclusive perpetual easement of use and enjoyment. The Association contended that its Board of Directors acted within its authority, as granted by the CC&Rs, to manage, maintain, and improve common areas for the benefit of all members.

Following an evidentiary hearing and a subsequent rehearing, Administrative Law Judge Jenna Clark ruled decisively in favor of the Association. The Judge found that the Petitioner failed to meet his burden of proof by a preponderance of the evidence. Key findings established that the Board was fully authorized to make the modification without a member vote, that tennis play was not restricted, and that the Petitioner’s easement rights were not violated. The Petitioner’s arguments, based on a potential future conflict rather than an actual experienced impediment, were deemed “unfounded” and “without merit.” The final order, issued on July 14, 2020, denied the petition, affirming the Association’s right to manage the recreational facilities in this manner.

——————————————————————————–

I. Case Overview

This matter involves a formal complaint by a homeowner against his townhouse association, brought before the Arizona Department of Real Estate and adjudicated by the Office of Administrative Hearings (OAH).

Case Detail

Information

Case Numbers

20F-H2019026-REL, 20F-H2019026-REL-RHG (Rehearing)

Petitioner

Werner A. Reis

Respondent

Canyon Mesa Townhouse Association

Adjudicator

Administrative Law Judge (ALJ) Jenna Clark

Core Issue

Whether the Canyon Mesa Townhouse Association violated community documents (CC&Rs Article III, section 1) by adding pickleball lines to one of two community tennis courts.

——————————————————————————–

II. Procedural History

The dispute progressed through a formal administrative hearing process, including a petition, a hearing, a decision, a request for rehearing, and a final order.

• November 18, 2019: Werner Reis files a single-issue petition with the Arizona Department of Real Estate.

• December 4, 2019: The Association files its ANSWER, denying all complaint items.

• January 31, 2020: An evidentiary hearing is held before ALJ Jenna Clark.

• February 20, 2020: The ALJ issues a decision denying the Petitioner’s petition, finding he failed to sustain his burden of proof.

• March 26, 2020: The Petitioner submits a REQUEST FOR REHEARING to the Department.

• April 22, 2020: The Department grants the Petitioner’s request for a rehearing.

• May 20, 2020: During a prehearing conference, both parties stipulate that no factual dispute exists and agree to adopt the prior hearing record and submit written closing arguments in lieu of a new hearing.

• June 24, 2020: Deadline for written closing arguments. The Association submits a 17-page argument; the OAH receives no closing argument from the Petitioner.

• July 14, 2020: The ALJ issues a final decision, again denying the petition and ordering that the initial decision from February be the final order in the matter.

——————————————————————————–

III. Analysis of the Dispute

The central conflict was the interpretation of the Association’s CC&Rs regarding the Board’s authority to modify common areas versus a member’s right to their use and enjoyment.

Petitioner’s Position (Werner A. Reis)

The Petitioner’s case was built on the premise that adding pickleball as a competing use for a tennis court fundamentally diminished the rights of tennis-playing members.

• Core Allegation: The Association violated Article III, section 1 of the CC&Rs, which grants every member a “nonexclusive perpetual easement of use and enjoyment in and to the Common Areas.”

• Argument on Infringement: The Petitioner argued the Association created a situation where “Members have the right to play tennis unless pickleball is in play,” which he claimed “constitutes an infringement of tennis players’ right of use and enjoyment.”

• Impediment of Enjoyment: He contended that reducing the number of exclusively available tennis courts from two to one amounts to “an impediment of enjoyment rights.”

• Creation of Competition: He accused the Association of “creating a new class of people” (pickleball players) who could access the courts, creating new competition for members on a first-come, first-served basis.

• Hypothetical Conflict: The “crux” of his complaint was the possible future conflict between his desire to play two singles matches simultaneously and up to sixteen “outsiders playing a raucous game of pickleball on the other designated tennis court.”

• Requested Remedy: The Petitioner requested an order requiring the Association to designate the courts for tennis playing only.

Respondent’s Position (Canyon Mesa Townhouse Association)

The Association defended its decision as a reasonable exercise of the Board’s authority to manage community property for the benefit of all residents.

• Board Authority: The Board asserted that its decision was permitted by Article II, section 1 of the CC&Rs, which grants it the authority to “manage, maintain, repair, replace and improve the Common Areas” without requiring a member vote. Article VI further requires the Board to maintain and manage recreational facilities.

• Benefit to Community: The decision was made to offer pickleball as an additional recreational feature to satisfy growing interest from owners, renters, and guests, and was also considered as a potential means to generate revenue.

• No Restriction of Use: The Association maintained that tennis play was not restricted. Both courts remained available seven days a week on a first-come, first-served basis, with no changes to the reservation system. One court remained available exclusively for tennis at all times.

• Nature of Modification: The modification involved painting lines and using portable nets, which must be detached after play. The permanent tennis nets on both courts remained in place.

——————————————————————————–

IV. Summary of Evidence and Testimony

Testimony from the Association’s representatives and the Petitioner established the key undisputed facts of the case.

Testimony for the Association (Charles Mitchell & Arland Averell)

• Board Authority Confirmed: Charles Mitchell, the Board Director, testified that CC&Rs Articles II and VI, along with the Association’s Articles of Incorporation, authorize the Board to manage and improve common areas, including painting lines on the tennis courts.

• Historical Context: Arland Averell, a 20-year Board member, explained that a taped pickleball court had existed in 2015 but was damaged. The Board decided in April 2019 to reestablish it with painted lines in response to requests from several families.

• Practical Use: Pickleball is generally played only by a few families, typically on Saturday mornings. When pickleball is being played on the modified court, the other tennis court is always available.

• No Denial of Access: Director Mitchell confirmed that the Petitioner had never been denied access to the tennis courts at any time.

Testimony of the Petitioner (Werner A. Reis)

• Recent Homeowner: The Petitioner described himself as a “snowbird” who had purchased his townhouse in November 2019, shortly before filing his complaint.

• Conflict is Hypothetical: He admitted that he “has not played tennis in ‘years'” and, as a result, “has not yet found himself facing any such actual conflict.”

• No Direct Observation: The Petitioner testified that he had not personally observed contemporaneous tennis and pickleball games being played. His concerns about safety and inconvenience were speculative.

——————————————————————————–

V. Administrative Law Judge’s Findings and Final Order

The Administrative Law Judge’s decisions consistently found the Petitioner’s arguments to be legally and factually unsupported.

Conclusions of Law

• Undisputed Facts: The Judge concluded that the material facts were not in dispute. The Association’s governing documents clearly authorize the Board to maintain, manage, and improve the Common Areas, including the recreational facilities.

• No Violation of Easement Rights: The ruling stated, “What the evidence of record reflects is that Petitioner’s easement rights have not been violated by the Association because the Board painted blue pickleball lines on one of two tennis courts.”

• Petitioner’s Arguments Dismissed: The Judge found the Petitioner’s arguments to be “unfounded” and “without merit.” Specifically, the claim that the availability of only one dedicated court was an “impediment of enjoyment rights” was rejected.

• Failure to Meet Burden of Proof: In both the initial decision and the final order, the Judge concluded that the “Petitioner has failed to sustain his burden of proof” by a preponderance of the evidence that the Association violated Article III, section 1 of the CC&Rs.

• Failure to Prosecute Rehearing: The final decision noted that the Petitioner “did not provide OAH with a closing argument in support of his request for rehearing.”

Final Disposition

IT IS ORDERED that Petitioner’s petition is denied.

The decision issued on July 14, 2020, affirmed the initial February 24, 2020, decision and was designated as the FINAL ORDER in the matter, binding on both parties.

Study Guide: Reis vs. Canyon Mesa Townhouse Association

Short-Answer Quiz

Instructions: Answer the following questions in two to three sentences, drawing exclusively from the information provided in the case documents.

1. What was the specific allegation made by the Petitioner, Werner A. Reis, in his petition filed on November 18, 2019?

2. On what grounds did the Canyon Mesa Townhouse Association’s Board of Directors justify its decision to add pickleball lines to a tennis court?

3. According to the testimony of Arland Averell, what prompted the Board to reestablish a pickleball court in April 2019, and what was a prior experience with a pickleball court?

4. Describe the central, or “crux,” of the Petitioner’s complaint as summarized in the hearing evidence.

5. What key admissions did the Petitioner make during his testimony regarding his own tennis activity and his personal experience with the alleged conflict?

6. According to Director Charles Mitchell’s testimony, what is the physical setup of the nets on the courts, and how does this differ between tennis and pickleball?

7. What was the legal standard of proof the Petitioner was required to meet, and how is that standard defined in the legal documents?

8. What was the outcome of the initial evidentiary hearing held on January 31, 2020, and on what basis did the Administrative Law Judge reach this conclusion?

9. Describe the procedural change that occurred for the rehearing after the parties’ prehearing conference on May 20, 2020.

10. What action, or lack thereof, by the Petitioner on June 24, 2020, contributed to the final ruling in the rehearing?

——————————————————————————–

Answer Key

1. The Petitioner alleged that the Association violated Article III, section 1 of the Covenants, Conditions, and Restrictions (CC&Rs). The specific violation claimed was the modification of one of the two existing tennis courts for use as a pickleball court.

2. The Association’s Board of Directors justified the decision as an improvement to the Common Areas for the benefit of the Association, which it was permitted to do under Article II, section 1 of the CC&Rs. The decision was made to offer pickleball as an additional recreational feature to satisfy growing interest from owners, renters, and guests.

3. Arland Averell testified that in April 2019, the Board decided to reestablish the pickleball court with painted lines after several families requested it, and the Board also saw it as a way to generate additional revenue. A previous pickleball court established in 2015 had lines made of tape which were damaged approximately four months after being applied.

4. The crux of the Petitioner’s complaint was the possible future conflict between his personal desire to play two singles tennis matches on both courts simultaneously and the potential for up to sixteen “outsiders” to be playing a “raucous game of pickleball” on the modified court.

5. The Petitioner admitted that he had not played tennis in “years” and, as a result, had never actually faced the conflict he was complaining about. He also stated he had never been denied access to the courts and had not observed contemporaneous games of tennis and pickleball being played.

6. Director Mitchell testified that both tennis courts have fixed tennis nets. The pickleball court, however, has portable nets which must be attached for use and then detached at the end of play.

7. The Petitioner was required to prove his case by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that the contention is more probably true than not, representing the greater weight of evidence.

8. Following the January 31, 2020, hearing, the Administrative Law Judge denied the Petitioner’s petition. The judge concluded that the Petitioner had failed to sustain his burden of proof and that the evidence showed his easement rights had not been violated, as one tennis court always remained available.

9. During the prehearing conference, the parties stipulated that no factual dispute existed. They agreed to vacate the scheduled rehearing, adopt the evidentiary record from the first hearing without presenting new evidence, and submit written closing arguments instead.

10. On the deadline of June 24, 2020, the Office of Administrative Hearings received a 17-page closing argument from the Respondent (the Association). The Petitioner, Werner A. Reis, failed to submit a closing argument, which was noted in the final decision denying his petition again.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed for longer, essay-style responses. Formulate your answers by synthesizing information from across the case documents. Answers are not provided.

1. Analyze the conflict between the rights granted to members under CC&Rs Article III, section 1 (“easement of use and enjoyment”) and the powers granted to the Board under CC&Rs Article II, section 1 (“manage, maintain, repair, replace and improve the Common Areas”). How did the Administrative Law Judge resolve this apparent tension in the final decision?

2. Discuss the concept of the “burden of proof” as it applied in this case. Explain why Werner Reis’s testimony and arguments ultimately failed to meet the “preponderance of the evidence” standard.

3. Trace the procedural history of this case from the initial petition on November 18, 2019, to the final order on July 14, 2020. Identify the key events and decisions at each stage, including the initial hearing, the request for rehearing, and the final disposition.

4. Evaluate the strength of the Petitioner’s case. Focus specifically on the evidence he presented versus the evidence presented by the Association’s witnesses, Charles Mitchell and Arland Averell.

5. The Petitioner argued that the availability of only one tennis court when pickleball is in play constituted an “impediment of enjoyment rights.” Explain the Association’s counter-arguments and why the Administrative Law Judge ultimately found the Petitioner’s argument to be “unfounded” and “without merit.”

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The presiding official (Jenna Clark) at the Office of Administrative Hearings who reviews evidence, makes Findings of Fact and Conclusions of Law, and issues orders and decisions.

ARIZ. REV. STAT.

Abbreviation for the Arizona Revised Statutes, the laws enacted by the Arizona state legislature that regulate planned communities and govern the administrative hearing process.

Association

The Canyon Mesa Townhouse Association, a non-profit Arizona corporation serving as the property owner’s association for the development. In this case, it is the Respondent.

Board of Directors (Board)

The governing body of the Association, empowered by the CC&Rs and Articles of Incorporation to manage, maintain, and improve the Common Areas.

Burden of Proof

The obligation of a party in a trial (in this case, the Petitioner) to produce the degree of evidence required to prove their case. The standard required here was “preponderance of the evidence.”

CC&Rs (Covenants, Conditions, and Restrictions)

The governing documents that form an enforceable contract between the Association and each property owner, controlling property use within the development. The Restated Declaration was recorded on June 8, 2015.

Common Areas

Property within the development, such as the tennis courts, for the mutual benefit of all owners. The Association’s Board is granted authority to manage and improve these areas.

Department

The Arizona Department of Real Estate, the state agency authorized to receive and decide on petitions for hearings regarding disputes in planned communities.

Easement of use and enjoyment

A non-exclusive, perpetual right granted to every member of the Association to use and enjoy the Common Areas, as established in CC&Rs Article III, section 1.

OAH (Office of Administrative Hearings)

An independent state agency to which the Department refers cases for evidentiary hearings.

Petitioner

The party who filed the petition initiating the legal action. In this case, Werner A. Reis, a townhouse owner and member of the Association.

Preponderance of the evidence

The standard of proof in this case, defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and representing the “greater weight of the evidence.”

Respondent

The party against whom the petition is filed. In this case, the Canyon Mesa Townhouse Association.

Snowbird

A colloquial term used by the Petitioner to describe himself as an out-of-state retiree who resides in Arizona during the winter months.

5 Surprising Lessons from a Bizarre HOA Lawsuit Over a Pickleball Court

Introduction: The Battle for the Tennis Court

Disputes with a homeowner association (HOA) are a common feature of suburban life, often revolving around landscaping, paint colors, or parking. But when you combine the rigid world of HOA rules with the explosive popularity of pickleball, you get a conflict that is uniquely modern. In a real-life legal case from Sedona, Arizona, one homeowner took his HOA to court over the decision to add pickleball lines to one of the community’s two tennis courts.

What might seem like a minor neighborhood squabble became a formal legal challenge, complete with hearings, testimony, and an official judicial decision. The court documents from this case offer a surprisingly revealing look into community rules, personal grievances, and the peculiar nature of legal battles. More importantly, they reveal several counter-intuitive lessons for anyone living in a planned community.

——————————————————————————–

1. You Can Sue Over a Problem That Doesn’t Exist (But You Probably Won’t Win)

The core of the legal challenge was filed by Werner Reis, a new homeowner in the Canyon Mesa Townhouse Association. His complaint was over the modification of one of two community tennis courts to accommodate pickleball. The “crux” of his complaint was a concern over a possible future conflict: a hypothetical scenario where he might want to play two singles tennis matches while a large group of “outsiders” played a “raucous game of pickleball.”

This seems like a specific, if forward-thinking, concern. But the timeline and testimony revealed a truly bizarre situation. According to court records, Reis purchased his townhouse in November 2019 and filed his lawsuit on or about November 18, 2019—meaning he initiated a formal legal action within days or weeks of becoming a member of the community. Even more stunning was this fact from his own testimony:

Petitioner has not played tennis in “years.” As such, Petitioner has not yet found himself facing any such actual conflict.

The entire legal challenge—filed almost immediately upon moving in—was based on a hypothetical grievance for a sport the petitioner hadn’t even played in years. Unsurprisingly, the Administrative Law Judge found his argument “unfounded.” The lesson is clear: a legal claim based on “what if” is unlikely to succeed without any actual harm.

2. Your HOA’s Governing Documents Are a Legally Binding Contract

Many homeowners view their HOA’s rules as guidelines, but legally, they are a binding contract called Covenants, Conditions, and Restrictions (CC&Rs). When you buy a property, you agree to their terms.

In its defense, the HOA pointed directly to its governing documents. Article VI requires the Board to manage all recreational facilities, and Article II, section 1, gives it the explicit authority to “manage, maintain, repair, replace and improve the Common Areas” for the “general welfare and benefit of the Owners”—all without a member vote. This clause was the legal bedrock of the Board’s defense; in the eyes of the law, painting lines to accommodate a popular new sport is not a degradation of an amenity, but an improvement of it, squarely within the Board’s mandate.

The tennis courts are legally defined as “Common Areas.” This gave the Board the unambiguous right to paint new lines on them. This is an impactful takeaway for all homeowners: while you may feel a sense of personal ownership over shared amenities, the Board has broad, legally-defined powers to manage them for the entire community.

3. A Board’s Duty Is to Adapt to the Community’s Evolving Interests

The HOA Board’s decision wasn’t a whim; it was a response to a persistent community interest with a history. Testimony from a 20-year Board member, Arland Averell, revealed that in April 2019, the Board decided to reestablish a pickleball court “after several families requested they do so.” As a secondary benefit, the Board also saw it as a way to “generate additional revenue.”

But this wasn’t the community’s first foray into the sport. Court records show that back in 2015, the association had a pickleball court with taped lines, but it was damaged after only four months. This context is crucial. The 2019 decision to paint permanent lines was not just a reaction to new requests but an institutional lesson learned. It shows the Board was responding to a long-term, evolving interest and choosing a more durable solution, fulfilling its duty to adapt common resources to meet new demands.

4. An “Infringement” Requires an Actual Impediment

The petitioner’s legal argument was very specific. He claimed that adding pickleball “constitutes an infringement of tennis players’ right of use and enjoyment” and that having only one guaranteed tennis court is an “impediment of enjoyment rights.” He summarized his grievance with the line:

“Members have the right to play tennis unless pickleball is in play.”

However, the facts presented in court systematically dismantled this argument. The evidence showed:

• One of the two courts remained exclusively for tennis at all times.

• Both courts were still available for tennis on a first-come, first-served basis.

• The pickleball nets were portable and had to be detached at the end of play, leaving the court ready for tennis.

• Most critically, the petitioner himself testified that he had “never been denied access to the tennis courts at issue at any time.”

The judge determined that no violation occurred because the petitioner’s rights were never actually impeded. This reveals the critical legal distinction between an inconvenience and an infringement. The petitioner’s entire case rested on a hypothetical future inconvenience, but the law requires an actual, demonstrable impediment to rights. Since his own testimony confirmed one had never occurred, his claim was impossible to prove.

5. If You Demand a Rehearing, You Should Probably Show Up with an Argument

In a final, bizarre twist, the story doesn’t end with the initial ruling in February 2020. The petitioner filed a “REQUEST FOR REHEARING,” which the court granted, giving him a second chance to make his case.

To streamline the process, both parties agreed to skip a new evidentiary hearing and instead submit written “Closing Arguments” to the judge. The HOA’s legal team submitted a detailed, 17-page argument. What happened next was documented in the final court order:

OAH did not receive a closing argument from Petitioner.

The petitioner, who had initiated the entire legal process and successfully demanded a second chance, was given the final word. He had the opportunity to submit a closing argument that could have vindicated his entire complaint. Instead, he offered only silence. By ghosting his own rehearing, he left the judge with no choice but to conclude that he had once again “failed to sustain his burden of proof” and make the original ruling against him final.

——————————————————————————–

Conclusion: The Court of Community Opinion

This case is a fascinating lesson in the difference between a personal annoyance and an actual legal violation. It demonstrates that in the world of HOAs, feelings and hypothetical concerns carry little weight compared to the cold, hard text of the governing documents. Those documents give boards significant power, but also charge them with the difficult task of balancing the desires of all residents, not just the grievance of one.

As pickleball courts continue to replace shuffleboard courts and community gardens pop up in unused green spaces, this story leaves us with a critical question: As our communities change, how do we balance protecting the familiar traditions we love with making space for the new ones our neighbors are asking for?

Case Participants

Petitioner Side

Werner A Reis (petitioner)
Appeared on his own behalf

Respondent Side

Edward O’Brien (attorney)
Carpenter, Hazlewood, Delgado & Bolen, LLP
Counsel for Canyon Mesa Townhouse Association
Mark Sall (attorney)
Carpenter, Hazlewood, Delgado & Bolen, LLP
Counsel for Canyon Mesa Townhouse Association (Also cited as Mark Sahl)
Charles Mitchell (board member, witness)
Canyon Mesa Townhouse Association
Current Director of the Association's Board
Arland Averell (board member, witness)
Canyon Mesa Townhouse Association
Served on the Board for the past twenty years

Neutral Parties

Jenna Clark (ALJ)
OAH
Judy Lowe (commissioner)
ADRE
Commissioner of the Arizona Department of Real Estate
DGardner (department contact)
ADRE
Electronic contact for ADRE
c. serrano (staff)
OAH
Administrative staff/Clerk noted on document transmission

John H. Kelly v. Cortez Canyon Unit Owners Association

Posted on September 13, 2019 by [email protected]

Case Summary

Case ID	19F-H1919060-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-09-13
Administrative Law Judge	Jenna Clark
Outcome	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.
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	John H. Kelly	Counsel	—
Respondent	Cortez Canyon Unit Owners Association	Counsel	Jonathan A. Dessaules

Alleged Violations

ARIZ. REV. STAT. § 33-1243

Outcome Summary

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)

Related election workflow tool

Preview HOABallot election workflows

Video Overview

Audio Overview

Decision Documents

19F-H1919060-REL Decision – 737890.pdf

Uploaded 2026-04-24T11:20:28 (142.6 KB)

19F-H1919060-REL Decision – 737890.pdf

Uploaded 2026-01-23T17:29:30 (142.6 KB)

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: 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.

——————————————————————————–

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?

——————————————————————————–

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.

——————————————————————————–

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?

——————————————————————————–

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.

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