Michael J Stoltenberg v. Rancho Del Oro Homeowners Association

Posted on September 4, 2019 by [email protected]

Case Summary

Case ID	19F-H1919068-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-09-04
Administrative Law Judge	Thomas Shedden
Outcome	The ALJ found the HOA violated CC&R 4.3 regarding the timing of budget delivery. While the Petitioner prevailed on the violation and was awarded the $500 filing fee, the ALJ denied the request to rescind the dues increase and denied civil penalties.
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

Alleged Violations

CC&R 4.3

Outcome Summary

The ALJ found the HOA violated CC&R 4.3 regarding the timing of budget delivery. While the Petitioner prevailed on the violation and was awarded the $500 filing fee, the ALJ denied the request to rescind the dues increase and denied civil penalties.

Key Issues & Findings

Failure to deliver budget 15 days prior to meeting

Petitioner alleged the HOA violated CC&R 4.3 by failing to deliver the budget 15 days before the meeting. The HOA mailed the budget exactly 15 days prior (Jan 2 for Jan 17 meeting), but the ALJ ruled the contract required delivery, not just mailing, 15 days prior.

Orders: Respondent must pay to Petitioner his filing fee of $500.00 within thirty days.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Video Overview

Audio Overview

Decision Documents

19F-H1919068-REL Decision – 735330.pdf

Uploaded 2026-04-24T11:21:24 (80.1 KB)

19F-H1919068-REL Decision – 735330.pdf

Uploaded 2026-01-27T21:17:02 (80.1 KB)

Administrative Decision Briefing: Stoltenberg v. Rancho Del Oro Homeowners Association

Executive Summary

This document provides a comprehensive analysis of the administrative law decision in Case No. 19F-H1919068-REL, involving Petitioner Michael J. Stoltenberg and Respondent Rancho Del Oro Homeowners Association. The central dispute concerned whether the Association complied with its Covenants, Conditions, and Restrictions (CC&Rs) regarding the timely delivery of budget documentation to members.

The Administrative Law Judge (ALJ), Thomas Shedden, determined that the Association violated CC&R section 4.3 by failing to deliver the 2019 budget to the Petitioner at least fifteen days before the annual meeting. While the Petitioner was declared the prevailing party and awarded a refund of his $500 filing fee, the court declined to rescind the 2019 dues increase or issue civil penalties.

Detailed Analysis of Key Themes

1. Interpretation of Delivery Timelines

The core of the legal dispute rested on the distinction between "mailing" and "delivery." CC&R section 4.3 stipulates that the Board must cause a copy of the budget and assessment amounts to be delivered to each unit owner at least fifteen days prior to the meeting where the budget is presented.

The evidence established that:

The annual meeting occurred on January 17, 2019.
The Association mailed the budget on January 2, 2019 (exactly fifteen days before the meeting).
The Petitioner did not actually receive the budget fifteen days before the meeting.

The ALJ concluded that merely placing the budget in the mail fifteen days prior does not satisfy a requirement for "delivery" by that same date, as the transit time naturally delays the delivery beyond the required window.

2. Contractual Nature of CC&Rs

The decision reinforces the legal principle that CC&Rs constitute a binding contract between a Homeowners Association and its members. The tribunal emphasized that:

Both parties are required to comply with the explicit terms of the CC&Rs.
The court must give effect to the "clear and unambiguous terms" of these documents.
The Association’s failure to meet the specific delivery deadline constituted a breach of its contractual duty under section 4.3.

3. Burden of Proof and Evidentiary Standards

The Petitioner bore the burden of proof under the standard of a "preponderance of the evidence." This case highlights how credible personal testimony, combined with physical evidence (such as a postmarked envelope), can meet this standard. The ALJ found the Petitioner's testimony regarding the receipt of the budget to be credible, which was sufficient to incline the "fair and impartial mind" toward his side of the issue.

4. Remedies and Judicial Discretion

While the Petitioner successfully proved a violation, the court exercised discretion regarding the requested remedies. The decision illustrates a distinction between a procedural violation and the substantive validity of Association actions:

Procedural Violation: Confirmed (Late delivery of budget).
Awarded Remedy: Refund of the $500 filing fee to the Petitioner.
Denied Remedies: The court refused to rescind the 10% dues increase and declined to issue civil penalties, as the Petitioner failed to demonstrate that such measures were appropriate or necessary.

Key Case Data

Category	Details
Case Number	19F-H1919068-REL
Administrative Law Judge	Thomas Shedden
Hearing Date	August 21, 2019
Decision Date	September 4, 2019
Relevant CC&R	Section 4.3 (Budget Delivery)
Prevailing Party	Michael J. Stoltenberg
Financial Award	$500.00 (Filing Fee Reimbursement)

Important Quotes with Context

On the Definition of Preponderance of Evidence

"The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that… is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other." (Citing Black’s Law Dictionary)

Context: This quote establishes the legal threshold the Petitioner had to meet to prove the Association violated the CC&Rs.

On Contractual Compliance

"The CC&Rs are a contract between the parties and the parties are required to comply with its terms… the tribunal must give effect to a contract’s clear and unambiguous terms."

Context: The ALJ used this to explain why the Association could not be excused from the strict 15-day delivery requirement, regardless of their mailing efforts.

On the Specific Violation

"The preponderance of the evidence shows that the Association placed the budget in the mail on January 2, 2019, which is fifteen days before the meeting, but it was not delivered to Mr. Stoltenberg on that date and was not delivered to him fifteen days before the meeting as required."

Context: This finding is the pivot point of the decision, clarifying that mailing a document on the deadline date is insufficient if the requirement is "delivery."

Actionable Insights

For Homeowners Associations

Buffer Mailing Dates: When CC&Rs require "delivery" by a certain date, Associations should account for mail transit times. Mailing exactly on the deadline (e.g., 15 days before a meeting for a 15-day requirement) will likely result in a violation if the document is not received on that same day.
Review Mandatory Timelines: Associations must strictly adhere to the timelines set in their CC&Rs for budget preparation (60 days prior to fiscal year) and member notification (30 days prior to meetings).
Dues Increase Authority: The case notes that dues increases up to 10% do not require membership approval under these specific CC&Rs, though procedural notice requirements still apply.

For Association Members

Documenting Receipts: Maintaining evidence of postmarks and arrival dates is crucial when alleging procedural violations by an Association.
Single-Issue Petitions: Petitioners should be aware that administrative hearings may require identifying a single issue or paying additional fees for multi-issue hearings.
Limited Remedies: Even if a violation is proven, the court may only award the recovery of filing fees rather than the rescission of Association financial decisions (like dues increases) unless a specific harm or lack of authority is demonstrated.

Study Guide: Stoltenberg v. Rancho Del Oro Homeowners Association

This study guide provides a comprehensive overview of the administrative law case Michael J. Stoltenberg v. Rancho Del Oro Homeowners Association (No. 19F-H1919068-REL). It covers the legal standards, factual findings, and final rulings issued by the Arizona Office of Administrative Hearings.

Core Case Overview

The case centers on a dispute regarding the procedural requirements for notifying homeowners of annual budgets and assessment increases. The Petitioner, Michael J. Stoltenberg, alleged that the Rancho Del Oro Homeowners Association (the Association) failed to comply with its Covenants, Conditions, and Restrictions (CC&Rs) regarding the timely delivery of budget documentation.

Key Legal Standards

Jurisdiction: The Arizona Department of Real Estate has authority over this matter pursuant to ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11.
Burden of Proof: The Petitioner bears the burden of proof.
Standard of Proof: The standard is a "preponderance of the evidence," defined as the greater weight of the evidence or evidence that has the most convincing force.
Contractual Nature of CC&Rs: Legal precedent establishes that CC&Rs are a contract between the parties, and the tribunal must give effect to the contract’s clear and unambiguous terms.

Factual Findings and Timeline

The dispute focused on the Association's actions leading up to the 2019 fiscal year and its annual meeting.

2019 Budget and Dues Increase

Meeting Date: The Association conducted its annual meeting on January 17, 2019.
Dues Adjustment: Monthly dues were increased by 10% to a total of $154 per month. Under the Association's rules, dues increases of up to 10% do not require membership approval.
Notice of Increase: The Association informed members of the dues increase in November 2018.

CC&R Section 4.3 Requirements

Section 4.3 of the CC&Rs outlines specific timelines for the Board of Directors:

Preparation: The budget must be prepared at least 60 days before the fiscal year and at least 30 days before the meeting where it is presented.
Delivery: A copy of the budget and assessment amounts must be delivered to each unit owner at least 15 days prior to the meeting.

The Violation

The evidence showed that the Association postmarked the 2019 budget on January 2, 2019. While this was 15 days before the January 17 meeting, the budget was not actually delivered to Mr. Stoltenberg 15 days prior. The Administrative Law Judge (ALJ) determined that mailing the document on the 15th day did not satisfy the requirement for delivery "at least fifteen days prior" to the meeting.

Short-Answer Practice Questions

1. Who had the burden of proof in this matter, and what was the required standard?

The Petitioner (Michael J. Stoltenberg) had the burden of proof, and the required standard was a "preponderance of the evidence."

2. Why was the Petitioner required to limit his petition to a single issue?

The Administrative Law Judge informed the Petitioner that his initial petition encompassed multiple issues (violations of CC&R 1.8, 1.9, 2.1, 3.1, etc.). He was required to either identify a single issue for the hearing or pay a fee for a multi-issue hearing.

3. What specific violation did the ALJ find the Association committed?

The Association violated CC&R section 4.3 by failing to deliver a copy of the budget to the Petitioner at least 15 days before the meeting at which the budget was considered.

4. What was the Association’s defense regarding the timing of the budget notification?

The Association postmarked the budget on January 2, 2019, exactly 15 days before the meeting; however, the law requires delivery, not just mailing, by that deadline.

5. Did the dues increase of 10% require a vote from the membership?

No. Dues increases of up to 10% do not require approval of the membership under the Association's governing documents.

6. What was the final remedy awarded to the Petitioner?

The Petitioner was deemed the prevailing party, and the Association was ordered to reimburse his $500 filing fee.

Essay Prompts for Deeper Exploration

1. The Distinction Between Mailing and Delivery in Contractual Obligations Analyze the ALJ’s interpretation of CC&R section 4.3. Discuss why the postmark date of January 2nd was insufficient to meet a "fifteen-day delivery" requirement for a meeting held on January 17th. How does this distinction affect how Homeowners Associations should manage their administrative timelines?

2. Remedies and Limits of Administrative Authority The Petitioner requested that the 2019 dues increase be rescinded and a civil penalty be issued. However, the ALJ denied these requests despite finding a violation. Based on the source context, explore the potential reasons why the procedural violation regarding the budget delivery did not automatically invalidate the dues increase itself.

Glossary of Important Terms

Term	Definition
Administrative Law Judge (ALJ)	A judge who presides over hearings and adjudicates disputes involving government agencies (in this case, the Office of Administrative Hearings).
CC&Rs	Covenants, Conditions, and Restrictions; the governing documents and rules that constitute a contract between a Homeowners Association and its members.
Filing Fee	The cost paid by a petitioner to initiate a legal matter. In this case, the fee was $500.00.
Fiscal Year	The 12-month period used by the Association for budgeting and financial reporting.
Preponderance of the Evidence	The standard of proof where the evidence is of "superior evidentiary weight" and more "convincing" than the opposing evidence.
Prevailing Party	The party in a lawsuit or legal proceeding who succeeds on the main issues.
Petitioner	The party who brings a legal petition or complaint to the tribunal (Michael J. Stoltenberg).
Respondent	The party against whom a legal action is brought (Rancho Del Oro Homeowners Association).
Rescinded	To cancel, revoke, or repeal a decision or agreement.

The "Delivery" Deadline: Lessons in HOA Transparency from Stoltenberg v. Rancho Del Oro

1. Introduction: When Procedure Meets Property Rights

For many homeowners, the relationship with their Homeowners Association (HOA) is a balancing act between community standards and personal property rights. However, as any seasoned legal analyst will tell you, this relationship is governed strictly by contract law. When a Board fails to adhere to the procedural requirements of its own governing documents, it risks not only community trust but also a formal administrative remedy.

The case of Michael J. Stoltenberg vs. Rancho Del Oro Homeowners Association stands as a pivotal cautionary tale. It demonstrates that even when an Association acts in good faith to announce a dues increase, a single procedural oversight regarding the definition of the word "delivered" can result in a legal defeat. This post analyzes how a $500 filing fee refund turned on the precise timing of a budget distribution.

2. The Dispute: A Question of Timing

In early 2019, Petitioner Michael J. Stoltenberg challenged the Rancho Del Oro Homeowners Association following a budget meeting that resulted in an assessment increase. While Mr. Stoltenberg’s initial petition alleged a wide array of violations—including CC&Rs 1.8, 1.9, 2.1, 3.1, and various parts of Article 4—he ultimately employed a focused legal strategy, narrowing his claim to a single, provable issue of procedural non-compliance.

The conflict centered on the following facts:

The Annual Meeting: Conducted on January 17, 2019.
The Assessment Change: A 10% increase, raising monthly dues to $154.
The Regulatory Conflict: CC&R Section 4.3, which mandates specific timelines for budget distribution.

The Petitioner’s primary allegation was that the Association committed a contractual breach by failing to deliver the 2019 budget within the mandatory 15-day window prior to the meeting.

3. The Legal Threshold: CC&R Section 4.3 Analyzed

The Association’s obligations were not mere suggestions; they were contractual mandates. The Board's failure to distinguish between "mailing" and "delivery" created the grounds for the dispute.

Legal Spotlight: CC&R Section 4.3 Requirements Under the Association’s governing documents, the Board has two distinct temporal duties: 1. Preparation Duties: The Board must prepare a budget at least 60 days before the fiscal year and at least 30 days before the meeting at which it is presented. 2. Delivery Duties: The Board "shall cause a copy of the budget and the amount of the assessments… to be delivered to each unit owner at least fifteen days prior to that meeting."

The Association, represented by the testimony of Diana Crites of Crites Property Management, argued that they had fulfilled their duty by informing members of the increase in November 2018 and mailing the budget on January 2, 2019. However, the legal standard for "delivery" is not met by the mere act of placing an item into the stream of transit.

4. The ALJ’s Decision: Mailing is Not Delivery

Administrative Law Judge (ALJ) Thomas Shedden applied the Preponderance of the Evidence standard to this matter. As defined in Black’s Law Dictionary, this is "the greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other."

The ALJ’s logic focused on the "15-day math." If a meeting is held on the 17th, and the document is mailed on the 2nd, it is physically and legally impossible for the document to be "delivered" (received) on that same day.

HOA's Position	The ALJ's Ruling	Legal Logic
The Association mailed the budget on January 2, 2019, exactly 15 days prior to the meeting.	Mailing on the deadline day is insufficient to satisfy a delivery requirement.	"Delivery" implies receipt. Because the document was in transit on the 15th day, it was not delivered "at least 15 days prior."

The Verdict: The ALJ ruled that the Association violated Section 4.3. As a result, the Association was ordered to pay Mr. Stoltenberg $500 to reimburse his filing fee—effectively shifting the cost of litigation to the non-compliant Association.

5. Nuance in the Verdict: Limits to Homeowner Remedies

While the Petitioner secured a victory on the procedural point, the ruling highlights the limitations of administrative remedies. Homeowners should note that a procedural "win" does not always result in a total reversal of Association policy:

Dues Increase Upheld: Because the 10% increase did not exceed the threshold requiring membership approval under the CC&Rs, the ALJ did not rescind the increase. The $154 monthly rate remained valid.
No Civil Penalties: The ALJ determined that while a violation of the CC&Rs occurred, the circumstances did not warrant additional punitive civil penalties beyond the reimbursement of the filing fee.

6. Final Takeaways for Homeowners and Boards

The Stoltenberg case offers three high-impact lessons for community governance:

For Boards: Delivery Means Receipt. If governing documents require "delivery" by a specific deadline, mailing the document on that day is a breach of contract. Boards and management companies—such as Crites Property Management in this instance—must account for postal transit times to ensure documents are in the homeowners' hands by the deadline.
For Homeowners: Document Everything. Mr. Stoltenberg’s case was won on evidence, not just anecdotally. His presentation of the January 2nd postmark on the envelope was the pivotal "smoking gun" that proved the Association's timeline was flawed.
For Both: Contracts Matter. This ruling reinforces the precedent set in Johnson v. The Pointe Community Association (205 Ariz. 485), which establishes that CC&Rs are binding contracts. Tribunals are legally bound to give effect to the clear and unambiguous terms of these documents. Procedural transparency is a contractual obligation, not a courtesy.

7. Conclusion: The Value of Accountability

The Stoltenberg v. Rancho Del Oro decision serves as a vital reminder that in the world of HOAs, details matter. While the Association had notified members of the increase as early as November, their failure to strictly adhere to the 15-day delivery window for the final budget resulted in a financial penalty and a formal finding of violation. Ultimately, strict adherence to procedural deadlines is the only way for a Board to insulate itself from the costs and scrutiny of administrative litigation.

Case Participants

Petitioner Side

Michael J. Stoltenberg (petitioner)
Appeared on his own behalf

Respondent Side

Nicole Payne (respondent attorney)
Carpenter, Hazlewood, Delgado & Bolen LLP
Diana Crites (witness)
Crites Property Management
Testified for the Association
Lydia A. Peirce Linsmeier (respondent attorney)
Carpenter, Hazlewood, Delgado & Bolen LLP
Listed in transmission block

Neutral Parties

Thomas Shedden (ALJ)
Office of Administrative Hearings
Judy Lowe (Commissioner)
Arizona Department of Real Estate
Recipient of transmitted order
F. Del Sol (clerk/staff)
Office of Administrative Hearings
Signed the transmission of the order

Myron H Colvin vs. Tierra Del Sol RV Resort Association

Posted on August 27, 2019 by [email protected]

Case Summary

Case ID	19F-H19190064-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-08-27
Administrative Law Judge	Velva Moses-Thompson
Outcome	The Administrative Law Judge dismissed the petition. The Petitioner failed to meet the burden of proof to establish that the HOA violated the CC&Rs. The ALJ ruled that the Tribunal did not have jurisdiction to issue a declaratory judgment regarding the Petitioner's request to determine if his own actions constituted a violation.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Myron H. Colvin	Counsel	—
Respondent	Tierra Del Sol RV Resort Association	Counsel	Nicholas Nogami

Alleged Violations

CC&R § 4.3

Outcome Summary

The Administrative Law Judge dismissed the petition. The Petitioner failed to meet the burden of proof to establish that the HOA violated the CC&Rs. The ALJ ruled that the Tribunal did not have jurisdiction to issue a declaratory judgment regarding the Petitioner's request to determine if his own actions constituted a violation.

Why this result: Failure to prove HOA violation; lack of jurisdiction for declaratory judgment.

Key Issues & Findings

Dispute over lot setbacks and paver installation violation notice

Petitioner installed concrete pavers in his lot's setback area. The HOA issued a Notice of Violation stating the pavers violated CC&R § 4.3 because they were not small enough to be moved by one person. Petitioner argued he had approval and sought a hearing regarding the alleged violation. The ALJ found Petitioner failed to prove the HOA violated the CC&Rs.

Orders: Petition dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Video Overview

Audio Overview

Decision Documents

19F-H19190064-REL Decision – 733836.pdf

Uploaded 2026-04-24T11:18:46 (83.2 KB)

19F-H19190064-REL Decision – 733836.pdf

Uploaded 2026-01-27T21:16:06 (83.2 KB)

Administrative Law Briefing: Colvin v. Tierra Del Sol RV Resort Association

Executive Summary

This briefing examines the administrative law decision in the matter of Myron H. Colvin v. Tierra Del Sol RV Resort Association (No. 19F-H19190064-REL). The dispute arose when the Tierra Del Sol RV Resort Association (the Association) issued a Notice of Violation to Mr. Colvin regarding the installation of concrete pavers within the setback area of his lot.

The primary legal question concerned whether the pavers complied with the community’s Covenants, Conditions, and Restrictions (CC&Rs) § 4.3, which requires improvements in setback areas to be movable by one person without mechanical assistance. While Mr. Colvin sought a determination that he had not violated the CC&Rs, the Administrative Law Judge (ALJ) dismissed the petition. The ruling was based on two factors: the Petitioner’s failure to prove that the Association itself violated the CC&Rs and the tribunal’s lack of jurisdiction to issue a declaratory judgment regarding an owner’s compliance status.

Case Overview

Feature	Details
Case Name	Myron H. Colvin v. Tierra Del Sol RV Resort Association
Case Number	19F-H19190064-REL
Hearing Date	August 7, 2019
Administrative Law Judge	Velva Moses-Thompson
Petitioner	Myron H. Colvin (Self-represented)
Respondent	Tierra Del Sol RV Resort Association (Represented by Nicholas Nogami, Esq.)
Final Order	Petition Dismissed

Detailed Analysis of Key Themes

1. Interpretation of CC&R Section 4.3 (Lot Setbacks)

The central technical conflict involves the definition of allowable improvements within designated setback areas. Per the Association’s CC&Rs, setbacks are defined as:

Front: Five (5) feet.
Sides: Three (3) feet.
Rear: Three (3) feet.

Section 4.3 explicitly prohibits permanent or temporary structures, improvements, or vehicles (excluding golf carts and car dollies) in these areas. The only exception is for landscaping features, provided they can be "moved by one person unassisted by mechanical devices."

The dispute focused on whether Mr. Colvin’s concrete pavers met this "movability" requirement. The Association alleged the pavers were too large for manual removal, whereas Mr. Colvin contended the Association had previously approved his plan to cut the pavers into 3 x 5 ft pieces.

2. Procedural Burden of Proof

Under Arizona law (A.R.S. § 41-1092.07(G)(2)), the Petitioner bears the burden of proof to establish a violation by a preponderance of the evidence. This standard requires the Petitioner to prove that their contention is "more probably true than not."

In this matter, the ALJ found that Mr. Colvin failed to meet this burden. Rather than proving the Association violated the CC&Rs, Mr. Colvin focused his arguments on defending his own actions. The ALJ noted that the Association can only be found in violation if it, as an entity, placed an unapproved object or improvement in a setback area—an allegation Mr. Colvin did not make.

3. Jurisdictional Limitations of the OAH

A critical theme in the decision is the distinction between a violation hearing and a request for a declaratory judgment. While the Arizona Department of Real Estate (DRE) has jurisdiction over violations of planned community documents (A.R.S. § 32-2199(B)), that jurisdiction is specific.

The ALJ concluded that the tribunal did not have the authority to grant a "declaratory judgment." Mr. Colvin was essentially asking the court to declare that he was not in violation of the rules. The OAH determined it lacks the legal jurisdiction to provide such a determination for a homeowner seeking to pre-emptively clear their own record of a violation notice.

Important Quotes with Context

On the Definition of Setback Restrictions

"Each Lot shall be subject to a setback area… No permanent or temporary structures, improvements (other than landscaping)… shall be located within such setback area… [any] Improvement, other than landscaping features which can be moved by one person unassisted by mechanical devices, [shall not] encroach on or overhang any area designated in this Declaration as a lot setback."

— CC&R § 4.3 (as cited in Finding of Fact #13)

Context: This quote establishes the specific criteria that led to the Notice of Violation. It defines the strict limitations on what may occupy the three-to-five-foot perimeter of a lot.

On the Burden of Evidence

"A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not… superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other."

— Conclusion of Law #3

Context: The ALJ uses this definition to explain the standard Mr. Colvin failed to meet when attempting to challenge the Association's actions.

On the Scope of the Tribunal’s Authority

"To the extent that Mr. Colvin is requesting a declaratory judgment regarding his alleged violation, this tribunal does not have jurisdiction to make such a determination."

— Conclusion of Law #5

Context: This serves as the primary legal basis for the dismissal. It clarifies that the Office of Administrative Hearings is not empowered to issue rulings that merely validate a homeowner's compliance to satisfy an internal HOA dispute.

Actionable Insights

For Homeowners in Planned Communities

Clarification of Approval: Even if an Association approves a request for an improvement (as they did twice for Mr. Colvin), the final installation must strictly adhere to the specific text of the CC&Rs. Approval of a "request to place pavers" does not necessarily override the specific material requirements (such as weight and movability) found in the governing documents.
Understanding the Petitioner's Role: When filing a petition with the Department of Real Estate, the homeowner must prove that the Association violated the rules. Defending one's own actions against a notice of violation may not be sufficient grounds for an administrative hearing if the Association's own conduct remains within its legal authority.

For Association Boards and Management

Enforcement Authority: The decision reinforces that A.R.S. § 33-1803 authorizes associations to enforce CC&Rs. Providing specific remediation steps in a Notice of Violation (e.g., "cutting the concrete… into small 100 pound sections") helps demonstrate that the Association is acting in accordance with its governing documents.
Jurisdictional Defense: Associations facing similar petitions can successfully argue for dismissal if the Petitioner is seeking a declaratory judgment of their own compliance rather than proving a specific breach of duty by the Association.

Legal Recourse and Rehearing

Time Sensitivity: Parties dissatisfied with an Administrative Law Judge's decision have a strictly defined window of 30 days from the service of the Order to file a request for a rehearing with the Commissioner of the Department of Real Estate (pursuant to A.R.S. § 41-1092.09).

Study Guide: Colvin v. Tierra Del Sol RV Resort Association

This study guide provides a comprehensive overview of the administrative hearing between Myron H. Colvin (Petitioner) and the Tierra Del Sol RV Resort Association (Respondent). It explores the factual background, legal standards, and the final decision rendered by the Office of Administrative Hearings.

I. Case Background and Timeline

The dispute centers on the installation of concrete pavers in a lot's setback area and the interpretation of the community's governing documents.

Initial Request (March 2018): Myron H. Colvin submitted a request to Tierra Del Sol to install concrete pavers in the setback area of his lot. This was approved, but the project was delayed because Colvin left the state.
Second Request (March 2019): Colvin submitted a second request for the same project, which was also approved by the Association.
Notice of Violation (May 8, 2019): After installation, Tierra Del Sol issued a notice alleging a violation of Covenants, Conditions, and Restrictions (CC&Rs) § 4.3. The Association claimed the pavers were too large to be moved by one person without mechanical assistance.
Proposed Remedies: The Association suggested Colvin could correct the violation by removing the concrete or cutting it into small sections weighing approximately 100 pounds.
Legal Action: On May 10, 2019, Colvin filed a petition with the Arizona Department of Real Estate (DRE). An evidentiary hearing was held on August 7, 2019.

II. Key Legal Concepts and CC&R Interpretation

CC&R Section 4.3: Lot Setbacks

The central regulation in this case defines the restricted areas of a lot and the types of items permitted within them:

Setback Dimensions: 5 feet across the front; 3 feet on both sides; 3 feet at the rear.
Prohibited Items: Permanent or temporary structures, improvements (except landscaping), vehicles (except golf carts and car dollies), Park Models, or Recreational Vehicles.
The "One Person" Rule: Landscaping features are only permitted in the setback if they can be moved by one person unassisted by mechanical devices.

Legal Standards and Burden of Proof

The case was governed by the following legal principles:

Jurisdiction: Arizona Revised Statutes (A.R.S.) § 32-2199(B) grants the Department of Real Estate authority over violations of planned community documents.
Burden of Proof: The Petitioner (Colvin) bears the burden of establishing that the Respondent (Association) violated the CC&Rs by a preponderance of the evidence.
Restrictive Covenants: In Arizona, unambiguous covenants are enforced to reflect the intent of the parties and must be construed as a whole, giving effect to all provisions.

III. Short-Answer Practice Questions

1. According to CC&R § 4.3, what are the specific dimensions of the setback areas for a lot?

Answer: The setback areas consist of five feet across the front and three feet on both sides and the rear.

2. Why did Tierra Del Sol allege that the concrete pavers violated the CC&Rs?

Answer: The Association alleged the pavers were not small enough to be removed by one person without the assistance of a mechanical device, as required for improvements in the setback area.

3. What specific weight did the Association suggest for the concrete sections to bring them into compliance?

Answer: The Association advised cutting the concrete into small 100-pound sections.

4. What is the definition of "preponderance of the evidence" used by the tribunal?

Answer: It is proof that convinces the trier of fact that a contention is "more probably true than not," or evidence that has the "most convincing force."

5. Why was Myron Colvin’s petition ultimately dismissed?

Answer: Colvin failed to establish that the Association violated Section 4.3. Additionally, the tribunal lacked jurisdiction to provide a declaratory judgment on whether Colvin himself had violated the CC&Rs.

IV. Essay Prompts for Deeper Exploration

Analysis of the Burden of Proof: Explain the legal significance of the "Petitioner bears the burden of proof." In the context of this case, why did the Administrative Law Judge find that Mr. Colvin failed to meet this burden even though he was the one who received a notice of violation?
The Limits of Administrative Jurisdiction: Discuss the distinction between a hearing to determine if a Homeowners Association (HOA) violated its own documents and a request for a "declaratory judgment." Why did the tribunal refuse to rule on whether Colvin was actually in violation of the CC&Rs?
Interpretation of Restrictive Covenants: CC&R § 4.3 includes a clause regarding "landscaping features which can be moved by one person unassisted by mechanical devices." Evaluate how such a clause balances the aesthetic interests of the homeowner with the functional requirements of the Association.

V. Glossary of Important Terms

Term	Definition
A.R.S. § 32-2199(B)	The Arizona Revised Statute that permits owners or planned community organizations to file petitions concerning violations of community documents.
CC&Rs	Covenants, Conditions, and Restrictions; the governing documents that dictate the rules and limitations for property use within a community.
Declaratory Judgment	A legal determination by a court or tribunal that resolves legal uncertainty for the litigants, which the Office of Administrative Hearings ruled it did not have jurisdiction to provide in this specific context.
Improvement	Any structure or addition to a lot; under § 4.3, improvements in setbacks are generally restricted unless they are movable landscaping features.
Mechanical Device	Any tool or machinery used to assist in moving objects; its use is prohibited for moving items intended to be placed in the setback area under the "one person" rule.
Preponderance of the Evidence	The evidentiary standard where a claim is proved if it is shown to be more likely true than not; superior evidentiary weight.
Setback	A specific area of a lot (front, side, or rear) where structures and certain improvements are restricted to ensure space between properties or roads.
Tribunal	A person or institution (in this case, the Office of Administrative Hearings) with authority to judge, adjudicate on, or determine claims or disputes.

The Weight of Compliance: Lessons from the Tierra Del Sol Setback Dispute

1. When Lot Improvements Meet the Fine Print

For many RV resort enthusiasts, the appeal of a permanent lot lies in the ability to customize. Whether it’s a new awning or a pristine patio, these improvements define the resort lifestyle. However, as one resident at Tierra Del Sol RV Resort recently discovered, there is a significant legal distance between "getting approval" and "being in compliance."

The dispute between homeowner Myron H. Colvin and the Tierra Del Sol RV Resort Association serves as a cautionary tale for all planned community members. At the center of the conflict was a common upgrade—concrete pavers—that led to a Notice of Violation and an administrative hearing. By examining the nuances of this case, we can uncover how specific CC&R technicalities and jurisdictional boundaries determine the outcome of homeowner disputes.

2. From Green Light to Red Tape: The Project Timeline

The path to litigation began with what appeared to be a straightforward request. The timeline reveals a project that was approved twice but ultimately fell short of the community’s literal standards:

March 2018: Mr. Colvin submits his first request to the Association to install concrete pavers in his lot's setback area. The Association grants approval.
The Intervening Year: The project is stalled when Mr. Colvin leaves the state, preventing the immediate installation of the pavers.
March 2019: Upon his return, Mr. Colvin submits a second request for the same project. Once again, the Association issues an approval.
May 8, 2019: Shortly after the pavers are finally installed, the Association issues a formal Notice of Violation.

While the project was approved by the Architectural Officer, the execution—specifically the physical size and weight of the installed pavers—was deemed a breach of the community’s governing documents.

3. Decoding Section 4.3: The "One-Person" Rule and the 100-Pound Safe Harbor

The legal core of this dispute is Section 4.3 of the CC&Rs, which governs lot setbacks. Setbacks are designated "no-build" zones (five feet at the front, three feet on the sides and rear) intended to remain clear for utility access and safety.

The exact text of CC&R § 4.3 states:

"…in no event shall any Recreational Vehicle, its slide-out, or any Improvement, other than landscaping features which can be moved by one person unassisted by mechanical devices, encroach on or overhang any area designated in this Declaration as a lot setback."

To clarify this for members, the Association provided a "Safe Harbor" suggestion: the violation could be remedied if the concrete was cut into sections weighing no more than 100 pounds.

Category	Restriction Details
Permitted Landscaping	Must be movable by 1 person without tools or mechanical devices (e.g., no dollies, forklifts, or heavy machinery).
Prohibited Structures	No sheds, Arizona Rooms, or permanent structures of any kind.
Vehicles & Slide-outs	Strictly prohibited from overhanging the setback area.
Specific Exemptions	Golf carts and car dollies are permitted.

The Association’s grievance was that Mr. Colvin’s pavers were too large and heavy to be moved by a single person unassisted, effectively turning a "landscaping feature" into a "permanent improvement" prohibited in the setback.

4. The Legal Paradox: Why You Can’t Sue the Board for Your Own Violation

On August 7, 2019, the parties met for an administrative hearing. Mr. Colvin’s defense was built on the fact that he had received prior approval to place pavers cut into 3×5 foot pieces. He argued that because the Association approved the plan, he was not in violation.

However, the Association raised a brilliant, albeit frustrating, legal defense. They argued that under A.R.S. § 32-2199(B), the tribunal only has the authority to hear petitions regarding violations committed by the Association. Since the Association did not place the pavers in the setback—Mr. Colvin did—the Association could not have violated Section 4.3.

This created a procedural wall for the homeowner. In these hearings, the Petitioner (Mr. Colvin) bears the Burden of Proof. He had to establish his case by a Preponderance of the Evidence, meaning he had to prove it was "more probably true than not" that the Association broke a rule. Because the CC&Rs restrict what owners do, not what the Board does, the Petitioner’s argument was fundamentally misplaced.

Furthermore, the Association argued that the Office of Administrative Hearings (OAH) lacks the jurisdiction to issue a "declaratory judgment." In layperson’s terms, the court is not a consulting firm; it cannot provide a "stamp of approval" or pre-emptive advice to a homeowner looking to overturn a violation notice.

5. The Verdict: Dismissal and the Limits of Jurisdiction

Administrative Law Judge Velva Moses-Thompson ultimately dismissed the petition. The decision rested on two primary Conclusions of Law:

Failure to Establish a Violation by the Respondent: The Petitioner admitted to placing the pavers himself. Therefore, the Association did not violate the restriction against placing objects in the setback.
Lack of Jurisdiction: The tribunal does not have the legal authority to decide whether a member's personal actions constitute a violation when that member is seeking a "second opinion" to challenge a notice.

The final order was issued on August 27, 2019, and transmitted to the Commissioner of the Arizona Department of Real Estate.

6. Key Takeaways: Lessons for Every Resort Member

This case provides essential insights for anyone living under the governance of an HOA or RV resort:

Approval Is Not Absolute: An initial nod from an Architectural Officer is a green light to proceed, but it is not a shield against the literal text of the CC&Rs. If the finished product (e.g., the weight of a paver) violates the written code, the approval is effectively voided by the non-compliant execution.
The Tribunal is Not a "Second Opinion": Administrative hearings are for adjudicating breaches of law by the Association. They are not a venue to seek "declaratory relief" or to ask a judge to tell the Board to leave you alone.
The Burden of Proof is Yours: When you file a petition, you must prove the Association did something wrong. Proving that you followed a plan that later turned out to be a violation is rarely enough to win a case against the Board.
The Hierarchy of Authority: While an Architectural Officer may review your plans, the Board of Directors and the written CC&Rs remain the ultimate authority. Always ensure your project meets the "fine print" standards—like the "one-person" weight limit—before the concrete is poured.

7. Conclusion: The Constant State of Compliance

The Tierra Del Sol dispute highlights a vital truth of resort living: compliance is a constant state, not a one-time event. Obtaining a permit is only the first step; maintaining the project within the technical bounds of the CC&Rs is what prevents a costly legal setback.

The order in this matter became binding upon its issuance. Under Arizona law, any party wishing to challenge such a decision has a 30-day window to file a request for a rehearing with the Commissioner of the Department of Real Estate. For homeowners, the best defense remains a thorough understanding of the "one-person" rule and a cautious approach to the setback line.

Case Participants

Petitioner Side

Myron H. Colvin (petitioner)
Tierra Del Sol RV Resort Association (member)
Appeared on behalf of himself

Respondent Side

Nicholas Nogami (attorney)
Tierra Del Sol RV Resort Association
Esq.

Neutral Parties

Velva Moses-Thompson (ALJ)
Office of Administrative Hearings
Judy Lowe (Commissioner)
Arizona Department of Real Estate
Received electronic transmission of order