The Administrative Law Judge denied the petition, concluding that the Respondent HOA did not violate CC&R Section 11.1 because that section grants the Board discretion, rather than a mandatory obligation, in the timing of enforcement actions.
Why this result: The Petitioner failed to meet the burden of proof to establish that the Respondent violated CC&R Section 11.1, as the ALJ found the Board's decision to temporarily delay enforcement pending litigation and settlement discussions fell within the discretion granted by the CC&R.
Key Issues & Findings
Failure of HOA to Enforce Architectural Approval Conditions (Hot Tub Screening)
Petitioner alleged that the HOA failed to enforce the mandatory installation of a pergola and screening around a neighbor's hot tub, a condition imposed by the Architectural Review Committee when retroactively approving the installation.
Orders: Petitioner's petition is denied.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 32-2199(B)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
CC&R Article 11, Section 11.1
CC&R Article 4, Section 4.27
Analytics Highlights
Topics: HOA Enforcement, CC&R Dispute, Architectural Control, Discretionary Enforcement
Additional Citations:
A.R.S. § 32-2199(B)
A.R.S. § 32-2199.02(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.07(G)(2)
A.R.S. § 41-1092.09
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
CC&R Article 4, Section 4.27
CC&R Article 11, Section 11.1
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
20F-H2020053-REL Decision – 850237.pdf
Uploaded 2026-01-23T17:32:29 (43.0 KB)
20F-H2020053-REL Decision – 850239.pdf
Uploaded 2026-01-23T17:32:31 (7.1 KB)
20F-H2020053-REL Decision – 853778.pdf
Uploaded 2026-01-23T17:32:32 (119.9 KB)
Briefing Doc – 20F-H2020053-REL
Administrative Hearing Briefing: Pierce v. Sierra Morado Community Association
Executive Summary
This briefing synthesizes the key findings and judicial decision in the administrative case of Erik R. Pierce versus the Sierra Morado Community Association (SMCA), Case No. 20F-H2020053-REL. The petition, filed by homeowner Erik R. Pierce, was ultimately denied by the Administrative Law Judge on February 10, 2021.
The core of the dispute was Pierce’s allegation that the SMCA failed to enforce its Covenants, Conditions, and Restrictions (CC&Rs) against his neighbors, the Kinstles, who installed a hot tub visible from Pierce’s property, creating a privacy violation. While the SMCA Board retroactively approved the hot tub, it did so with the explicit condition that a pergola and screening be installed to mitigate the visibility issue. The Kinstles subsequently failed to install the required screening.
The judge concluded that the SMCA’s conditional approval resolved the initial violation claim under CC&R Section 4.27. The central issue then became whether the SMCA’s subsequent failure to compel the installation of the screening constituted a violation of its enforcement duty under CC&R Section 11.1. The judge ruled that it did not, finding that the CC&Rs grant the Association a discretionary right to enforce its rules, not an absolute obligation. The judge found persuasive the SMCA’s testimony that it delayed enforcement actions due to the ongoing litigation and in an attempt to foster a settlement between the neighbors. This exercise of discretion was deemed permissible under the Association’s governing documents.
1. Case Overview
Parties and Legal Representation
Entity
Legal Counsel
Petitioner
Erik R. Pierce
James C. Frisch, Esq. & Michael Resare, Esq. (King & Frisch, P.C.)
Respondent
Sierra Morado Community Association (SMCA)
Heather M. Hampstead, Esq. & Nicholas C.S. Nogami, Esq. (Carpenter, Hazlewood, Delgado & Bolen, LLP)
Key Case Details
• Case Number: 20F-H2020053-REL
• Presiding Judge: Adam D. Stone, Administrative Law Judge
• Hearing Date: January 25, 2021 (conducted via Google Meet)
• Decision Date: February 10, 2021
• Jurisdiction: The Arizona Department of Real Estate (ADRE) is statutorily authorized to hear petitions from homeowners’ association members. This case was referred by the ADRE to the Office of Administrative Hearings for an evidentiary hearing.
2. Core Dispute and Allegations
Petitioner’s Complaint
On March 23, 2020, Erik R. Pierce filed a complaint with the ADRE alleging that the SMCA was in violation of its own CC&Rs, specifically Sections 4.27 (Swimming Pools and Spas) and 11.1 (Enforcement).
The dispute originated with the installation of a hot tub by Pierce’s neighbors, the Kinstles. Pierce testified that the hot tub and its occupants were visible from inside his house, and that occupants of the hot tub could look directly into his home, violating his right to privacy.
Timeline of Key Events
• September 4, 2019: Pierce submits his initial complaint to the SMCA, noting the hot tub’s visibility and asserting that the Kinstles had failed to obtain prior approval from the Architectural Review Committee (ARC).
• Post-September 2019: The SMCA informs the Kinstles that they installed the hot tub without approval and directs them to submit plans for the proper approval process.
• February 10, 2020: After several rejections, the SMCA Board approves the Kinstles’ hot tub installation on the condition that a pergola and screening are installed.
• March 3, 2020: Pierce receives a letter from the property management company, AAM, LLC, stating that the installation was approved with the screening requirement and that the complaint was closed.
• January 25, 2021: At the time of the hearing, the Kinstles had still not installed the required pergola and screening.
3. Analysis of Key Testimonies
The decision was informed by testimony from four witnesses presented by the Petitioner.
• Erik R. Pierce (Petitioner): Outlined the timeline of the dispute, the visibility of the neighbors’ hot tub, the resulting privacy violation, and the SMCA Board’s failure to enforce its own conditional approval requiring a pergola and screening.
• Bill Oliver (Former SMCA President, Fall 2019 – April 2020): Confirmed that the Board approved the hot tub retroactively with the stipulation for a pergola and screening. He stated the Board had a “rigorous process of enforcement” but could not recall if a specific violation letter was sent to the Kinstles after the conditional approval was granted.
• Jodie Cervantes (Former Community Manager, 2019 – June 2020): Testified that she believed the CC&Rs were enforced and the matter was closed. She suggested the Kinstles had a six-month period to comply with the screening requirement, which she believed was in the Design Guidelines, but could not point to the specific language.
• Martin Douglas (Current SMCA President, from April 2020): Stated he had been to the Pierce residence for another matter and the hot tub was not visible to him. He attributed the lack of enforcement action to the “ongoing litigation and multiple settlement offers which were being exchanged.” He testified that upon resolution of the case, the Board “will follow through with enforcement actions should the Kinstle’s fail to comply.”
4. Judicial Reasoning and Decision
The Administrative Law Judge’s decision centered on the interpretation of the SMCA’s CC&Rs and the discretionary power of its Board.
Governing CC&R Provisions
The ruling rested on the specific language of two sections of the SMCA CC&Rs:
• Section 4.27 (Swimming Pools and Spas): This section permits the installation of a hot tub only if it is “properly screened… if neither it nor its occupants are Visible from Neighboring Property, and with the prior written approval of the Architectural Review Committee.”
• Section 11.1 (Enforcement): This section states that “The Association or any Owner shall have the right to enforce the Project Documents… The failure of the Association or an Owner to take enforcement action with respect to a violation of the Project Documents shall not constitute or be deemed a waiver of the right of the Association or any Owner to enforce the Project Documents in the future.”
Administrative Law Judge’s Conclusions
1. Resolution of the Section 4.27 Claim: The judge determined that the initial issue regarding the unapproved hot tub “was essentially resolved by the Board instructing the Kinstle’s erect a pergola and install screening.” By making its approval conditional on a privacy solution, the Board addressed the core requirement of the section.
2. The “Heart of the Matter” – Section 11.1 Enforcement: The judge identified the central question as whether the SMCA violated Section 11.1 by failing to enforce the screening requirement against the Kinstles.
3. Discretionary vs. Mandatory Enforcement: The judge concluded that the language of Section 11.1 grants the Board a “right to enforce, not an absolute obligation.”
4. Rationale for Delayed Enforcement: The judge found the testimony of the current SMCA President, Martin Douglas, to be “more persuasive.” Douglas’s explanation—that the Board delayed enforcement to “foster an agreement with the neighbors” amid ongoing litigation—was accepted as a valid exercise of the Board’s discretion.
5. Final Ruling: The judge stated, “Section 11.1 expressly granted the Board this discretion, and it should not be disturbed.” Consequently, the judge ruled that the Petitioner failed to prove by a preponderance of the evidence that the Respondent had violated CC&R Section 11.1.
Final Order
IT IS ORDERED that Petitioners’ petition is denied.
The order was issued on February 10, 2021, and is binding unless a rehearing is granted.
Study Guide – 20F-H2020053-REL
Study Guide: Pierce v. Sierra Morado Community Association (Case No. 20F-H2020053-REL)
This study guide provides a review of the administrative hearing concerning the dispute between Erik R. Pierce and the Sierra Morado Community Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a comprehensive glossary of terms and entities involved in the case.
Short-Answer Quiz
Answer each of the following questions in two to three complete sentences, based on the provided source documents.
1. Who were the primary parties in this case, and what were their respective roles?
2. What was the initial reason for Mr. Pierce’s complaint against his neighbors, the Kinstles?
3. Which two sections of the Sierra Morado Community Association (SMCA) CC&Rs did Mr. Pierce allege were violated?
4. What action did the SMCA Board take after being informed that the Kinstles had installed a hot tub without prior approval?
5. What specific conditions did the SMCA Board require for the retroactive approval of the Kinstles’ hot tub installation?
6. According to former Board President Bill Oliver’s testimony, what was the Board’s common practice regarding architectural requests made after an installation?
7. What reason did Community Manager Jodie Cervantes give for her belief that no further enforcement action could be taken against the Kinstles?
8. According to current SMCA Board President Martin Douglas, why had the Board delayed enforcement actions against the Kinstles?
9. What was the Administrative Law Judge’s final decision regarding the alleged violation of CC&R Section 11.1?
10. How did the judge interpret the Board’s enforcement power as described in Section 11.1 of the CC&Rs?
——————————————————————————–
Answer Key
1. The primary parties were Erik R. Pierce, who was the Petitioner filing the complaint, and the Sierra Morado Community Association (SMCA), which was the Respondent. Mr. Pierce is a homeowner and member of the SMCA.
2. Mr. Pierce’s complaint originated because his neighbors, the Kinstles, installed a hot tub that was visible from his backyard. He testified that occupants in the hot tub were visible from inside his house, violating his privacy.
3. The Petitioner, Mr. Pierce, alleged that the Respondent, SMCA, was in violation of sections 4.27 and 11.1 of the SMCA CC&Rs. Section 4.27 pertains to the installation of spas, and Section 11.1 addresses the enforcement of project documents.
4. After Mr. Pierce filed his complaint, the SMCA informed the Kinstles that they had installed the hot tub without approval. The Board then directed the Kinstles to submit their plans and go through the proper architectural approval process.
5. The Kinstles’ hot tub was approved retroactively on February 10, 2020, on the condition that they install a pergola and screening. This was intended to address the visibility of the hot tub from Mr. Pierce’s property.
6. Bill Oliver, the SMCA President from fall 2019 to April 2020, testified that the Board would approve architectural requests retroactively. He confirmed that this is what occurred in the case of the Kinstles’ hot tub.
7. Jodie Cervantes, the Community Manager, testified that she believed the matter was closed because the Kinstles had six months to comply with the pergola and screening requirements. She believed this six-month deadline was outlined in the Design Guidelines, though she could not locate the specific language.
8. Martin Douglas, who became Board President in April 2020, testified that the Board delayed enforcement actions due to the ongoing litigation. He stated that multiple settlement offers were being exchanged in an effort to foster an agreement between the neighbors.
9. The Administrative Law Judge ordered that the Petitioner’s petition be denied. The judge concluded that Mr. Pierce did not establish by a preponderance of the evidence that the SMCA had violated CC&R Section 11.1.
10. The judge determined that Section 11.1 grants the Board a right to enforce the rules, not an absolute obligation to do so. This interpretation means the Board has the discretion to delay enforcement, which it did in this case to facilitate a potential settlement.
——————————————————————————–
Essay Questions
The following questions are designed for longer, essay-style responses. Use evidence and testimony from the case documents to construct a thorough analysis. No answers are provided.
1. Explain the legal standard of “preponderance of the evidence” as defined in the Administrative Law Judge’s decision. Analyze why the Petitioner, Erik R. Pierce, failed to meet this burden of proof concerning the violation of CC&R Section 11.1.
2. Trace the timeline of events from Mr. Pierce’s initial complaint on September 4, 2019, to the final decision on February 10, 2021. Discuss the key actions, delays, and decisions made by the SMCA Board during this period.
3. Compare and contrast the testimonies of Bill Oliver, Jodie Cervantes, and Martin Douglas. How do their different roles and timeframes with the SMCA shape their perspectives on the association’s enforcement process and the specific handling of the Kinstle case?
4. Analyze the Administrative Law Judge’s interpretation of CC&R Section 11.1. Discuss the distinction made between a “right to enforce” and an “absolute obligation,” and explain how this interpretation was central to the final ruling.
5. Based on the judge’s findings and the testimony of Martin Douglas, what are the likely next steps for the SMCA regarding the Kinstles’ non-compliance with the pergola and screening requirement? Evaluate the potential for future conflict or resolution between the parties involved.
——————————————————————————–
Glossary of Key Terms
Term / Entity
Definition
AAM, LLC
The property management company that employed Community Manager Jodie Cervantes and managed the Sierra Morado Community Association during the period of the dispute.
Administrative Law Judge (ALJ)
The official who presides over administrative hearings. In this case, the ALJ was Adam D. Stone of the Office of Administrative Hearings.
Architectural Committee (ARC)
The committee within the SMCA responsible for approving construction, installations, and alterations to properties, as referenced in CC&R Section 4.27.
Arizona Department of Real Estate (ADRE)
The state agency authorized by statute to receive and decide Petitions for Hearing from members of homeowners’ associations. Mr. Pierce filed his initial complaint with this department.
Burden of Proof
The obligation on a party in a legal case to prove its allegations. In this case, the Petitioner had the burden to establish his claim by a “preponderance of the evidence.”
Covenants, Conditions, and Restrictions. These are the governing documents or rules of a planned community. The dispute centered on alleged violations of Sections 4.27 (Swimming Pools and Spas) and 11.1 (Enforcement).
Hearing
The formal proceeding held on January 25, 2021, where the parties presented exhibits and witness testimony to the Administrative Law Judge.
Office of Administrative Hearings
An independent state agency that conducts evidentiary hearings for other state agencies, such as the Department of Real Estate.
Petitioner
The party who files a petition or complaint to initiate a legal proceeding. In this case, the Petitioner was Erik R. Pierce.
Preponderance of the Evidence
The evidentiary standard required for the Petitioner to win the case. It is defined as proof that convinces the trier of fact that a contention is “more probably true than not.”
Respondent
The party against whom a petition or complaint is filed. In this case, the Respondent was the Sierra Morado Community Association (SMCA).
Retroactive Approval
The act of approving an architectural installation (such as a hot tub) after it has already been completed, which the SMCA Board did in this case.
Sierra Morado Community Association (SMCA)
The homeowners’ association in Tucson, Arizona, of which Erik R. Pierce and the Kinstles are members.
Stipulation
An agreement between the parties in a legal proceeding. In this case, the parties stipulated to enter all submitted exhibits into the record.
Blog Post – 20F-H2020053-REL
Your HOA Can Ignore Its Own Rules? A Surprising Legal Case Every Homeowner Needs to Understand
Introduction: The Homeowner’s Dilemma
Most homeowners in a planned community operate under a simple assumption: if a neighbor violates a clear rule, you can file a complaint, and the Homeowners Association (HOA) is required to take action. It’s the fundamental promise of an HOA—consistent enforcement to protect property values and quality of life.
But what happens when the HOA agrees a violation has occurred, demands a fix, and then… does nothing to enforce it?
A real-world legal case, Erik R. Pierce versus the Sierra Morado Community Association, provides a surprising and cautionary answer. The final court decision reveals a critical loophole that may exist in your own HOA agreement. This article will break down the three most counter-intuitive takeaways from that case that every homeowner should understand.
Takeaway 1: “A Right to Enforce” Isn’t an “Obligation to Enforce”
The core of the dispute was straightforward. Homeowner Erik Pierce filed a complaint because his neighbors, the Kinstles, installed a hot tub that was visible from his property, a violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs)—the legally binding rules that govern the community. The HOA’s Architectural Committee retroactively approved the hot tub, but only on the condition that the neighbors install a pergola and screening to shield it from view.
The neighbors never installed the required screening, yet the HOA took no further enforcement action. This inaction led Mr. Pierce to sue the HOA.
The judge’s decision hinged on a crucial interpretation of the HOA’s governing documents. The judge ruled in favor of the HOA because the documents gave the Board the right to enforce the rules, not an absolute obligation to do so. This distinction granted the HOA discretion to choose its strategy. The judge found the board’s reasoning for the delay persuasive: it was deliberately choosing negotiation over immediate punitive action to resolve the conflict. The board’s discretion wasn’t just a right to do nothing; it was a right to choose a different path to compliance.
The key phrase here is “shall have the right to enforce.” Had the documents stated the board “shall enforce,” the outcome would likely have been entirely different. This single phrase transforms enforcement from a mandate into a strategic option for the board.
The Administrative Law Judge’s decision highlights this critical point:
“…Section 11.1 only gives the Board a right to enforce, not an absolute obligation. While Petitioner is understandably upset that there has yet to be any follow through on enforcement of the screening requirements, this tribunal finds the testimony of Mr. Douglas more persuasive, namely that the Board has delayed in enforcing because it was trying to foster an agreement with the neighbors. Section 11.1 expressly granted the Board this discretion, and it should not be disturbed.”
This finding is shocking for most homeowners, who reasonably assume that the rules laid out in their CC&Rs are mandates for the board, not a menu of discretionary options.
Takeaway 2: Suing Your HOA Can Ironically Pause Enforcement
The board’s discretionary power was put on full display when Mr. Pierce filed his lawsuit, creating a legal Catch-22. The current SMCA Board President, Martin Douglas, testified that the board deliberately paused formal enforcement actions against the neighbors who had violated the architectural requirement.
The judge ultimately found that the board’s rationale for this pause was a valid exercise of its discretion. The decision to delay was framed not as inaction, but as a strategic choice “to foster an agreement with the neighbors” amidst the complexities of litigation.
This reveals a deep irony: by filing a petition to force the HOA’s hand, the homeowner inadvertently provided the context for the HOA to justify a delay. The judge accepted that the board’s attempt to find a negotiated solution instead of escalating fines and penalties during an active lawsuit was a reasonable use of its discretionary authority. This case demonstrates how legal action, intended to accelerate a resolution, can sometimes be used by an HOA board to justify a different, slower approach.
Takeaway 3: A Clear Rule Violation Doesn’t Guarantee a Win in Court
One of the most surprising aspects of this case is that the facts of the violation were not in dispute. The judge explicitly acknowledged that the neighbors were in violation of the Architectural Review Committee’s requirement. The official decision states:
“Based upon the evidence provided, the Kinstle’s are in violation of the requirement the ARC Committee imposed on them.”
Despite this clear violation by the neighbor, the homeowner, Mr. Pierce, still lost his case against the HOA.
The case was lost on a critical legal distinction: the lawsuit was not about the neighbor’s violation, but about the HOA’s alleged failure to act. Since the judge determined the HOA had the discretionary right—not the mandatory obligation—to enforce the rule, its choice to pursue negotiation rather than immediate punitive action was not considered a violation of its duties.
The lesson here is profound: proving a neighbor is breaking the rules is only the first step. To win a case against your HOA for non-enforcement, you must also prove that its response (or lack thereof) constitutes a breach of its specific duties as outlined in your community’s governing documents.
Conclusion: Know Your Documents, Temper Your Expectations
The case of Pierce v. Sierra Morado Community Association serves as a stark reminder that HOA governance is often more complex than it appears. The precise wording of your community’s CC&Rs is critically important, as a single phrase can be the difference between a mandatory duty and a discretionary power. This case illustrates that the gap between a rule existing on paper and the board’s power to enforce it can be vast.
As a homeowner, your first step should be to obtain a copy of your community’s most recent CC&Rs and search for the enforcement clause—does it say your board “shall” enforce the rules, or does it say they have the “right” to?
This case forces every homeowner to ask: If your governing documents give your board the ‘right’ to act, what leverage do you truly have to ensure they actually will?
Case Participants
Petitioner Side
Erik R. Pierce(petitioner)
James C. Frisch(petitioner attorney) King & Frisch, P.C.
Michael Resare(petitioner attorney)
Respondent Side
Nicholas C.S. Nogami(respondent attorney) Carpenter, Hazlewood, Delgado & Bolen, LLP
Heather M. Hampstead(respondent attorney) Carpenter, Hazlewood, Delgado & Bolen, LLP
Jodie Cervantes(property manager/witness) AAM, LLC Community Manager for Respondent SMCA
Bill Oliver(board member/witness) Former SMCA President (Fall 2019 to April 2020)
Martin Douglas(board member/witness) Current SMCA Board President (since April 2020)
Neutral Parties
Adam D. Stone(ALJ)
Judy Lowe(Commissioner) Arizona Department of Real Estate
LDettorre(unknown) Arizona Department of Real Estate Transmission recipient
AHansen(unknown) Arizona Department of Real Estate Transmission recipient
djones(unknown) Arizona Department of Real Estate Transmission recipient
DGardner(unknown) Arizona Department of Real Estate Transmission recipient
ncano(unknown) Arizona Department of Real Estate Transmission recipient
The Administrative Law Judge denied the petition, concluding that the Respondent HOA did not violate CC&R Section 11.1 because that section grants the Board discretion, rather than a mandatory obligation, in the timing of enforcement actions.
Why this result: The Petitioner failed to meet the burden of proof to establish that the Respondent violated CC&R Section 11.1, as the ALJ found the Board's decision to temporarily delay enforcement pending litigation and settlement discussions fell within the discretion granted by the CC&R.
Key Issues & Findings
Failure of HOA to Enforce Architectural Approval Conditions (Hot Tub Screening)
Petitioner alleged that the HOA failed to enforce the mandatory installation of a pergola and screening around a neighbor's hot tub, a condition imposed by the Architectural Review Committee when retroactively approving the installation.
Orders: Petitioner's petition is denied.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 32-2199(B)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
CC&R Article 11, Section 11.1
CC&R Article 4, Section 4.27
Analytics Highlights
Topics: HOA Enforcement, CC&R Dispute, Architectural Control, Discretionary Enforcement
Additional Citations:
A.R.S. § 32-2199(B)
A.R.S. § 32-2199.02(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.07(G)(2)
A.R.S. § 41-1092.09
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
CC&R Article 4, Section 4.27
CC&R Article 11, Section 11.1
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
20F-H2020053-REL Decision – 850237.pdf
Uploaded 2025-10-09T03:35:12 (43.0 KB)
20F-H2020053-REL Decision – 850239.pdf
Uploaded 2025-10-09T03:35:12 (7.1 KB)
20F-H2020053-REL Decision – 853778.pdf
Uploaded 2025-10-09T03:35:12 (119.9 KB)
Briefing Doc – 20F-H2020053-REL
Administrative Hearing Briefing: Pierce v. Sierra Morado Community Association
Executive Summary
This briefing synthesizes the key findings and judicial decision in the administrative case of Erik R. Pierce versus the Sierra Morado Community Association (SMCA), Case No. 20F-H2020053-REL. The petition, filed by homeowner Erik R. Pierce, was ultimately denied by the Administrative Law Judge on February 10, 2021.
The core of the dispute was Pierce’s allegation that the SMCA failed to enforce its Covenants, Conditions, and Restrictions (CC&Rs) against his neighbors, the Kinstles, who installed a hot tub visible from Pierce’s property, creating a privacy violation. While the SMCA Board retroactively approved the hot tub, it did so with the explicit condition that a pergola and screening be installed to mitigate the visibility issue. The Kinstles subsequently failed to install the required screening.
The judge concluded that the SMCA’s conditional approval resolved the initial violation claim under CC&R Section 4.27. The central issue then became whether the SMCA’s subsequent failure to compel the installation of the screening constituted a violation of its enforcement duty under CC&R Section 11.1. The judge ruled that it did not, finding that the CC&Rs grant the Association a discretionary right to enforce its rules, not an absolute obligation. The judge found persuasive the SMCA’s testimony that it delayed enforcement actions due to the ongoing litigation and in an attempt to foster a settlement between the neighbors. This exercise of discretion was deemed permissible under the Association’s governing documents.
1. Case Overview
Parties and Legal Representation
Entity
Legal Counsel
Petitioner
Erik R. Pierce
James C. Frisch, Esq. & Michael Resare, Esq. (King & Frisch, P.C.)
Respondent
Sierra Morado Community Association (SMCA)
Heather M. Hampstead, Esq. & Nicholas C.S. Nogami, Esq. (Carpenter, Hazlewood, Delgado & Bolen, LLP)
Key Case Details
• Case Number: 20F-H2020053-REL
• Presiding Judge: Adam D. Stone, Administrative Law Judge
• Hearing Date: January 25, 2021 (conducted via Google Meet)
• Decision Date: February 10, 2021
• Jurisdiction: The Arizona Department of Real Estate (ADRE) is statutorily authorized to hear petitions from homeowners’ association members. This case was referred by the ADRE to the Office of Administrative Hearings for an evidentiary hearing.
2. Core Dispute and Allegations
Petitioner’s Complaint
On March 23, 2020, Erik R. Pierce filed a complaint with the ADRE alleging that the SMCA was in violation of its own CC&Rs, specifically Sections 4.27 (Swimming Pools and Spas) and 11.1 (Enforcement).
The dispute originated with the installation of a hot tub by Pierce’s neighbors, the Kinstles. Pierce testified that the hot tub and its occupants were visible from inside his house, and that occupants of the hot tub could look directly into his home, violating his right to privacy.
Timeline of Key Events
• September 4, 2019: Pierce submits his initial complaint to the SMCA, noting the hot tub’s visibility and asserting that the Kinstles had failed to obtain prior approval from the Architectural Review Committee (ARC).
• Post-September 2019: The SMCA informs the Kinstles that they installed the hot tub without approval and directs them to submit plans for the proper approval process.
• February 10, 2020: After several rejections, the SMCA Board approves the Kinstles’ hot tub installation on the condition that a pergola and screening are installed.
• March 3, 2020: Pierce receives a letter from the property management company, AAM, LLC, stating that the installation was approved with the screening requirement and that the complaint was closed.
• January 25, 2021: At the time of the hearing, the Kinstles had still not installed the required pergola and screening.
3. Analysis of Key Testimonies
The decision was informed by testimony from four witnesses presented by the Petitioner.
• Erik R. Pierce (Petitioner): Outlined the timeline of the dispute, the visibility of the neighbors’ hot tub, the resulting privacy violation, and the SMCA Board’s failure to enforce its own conditional approval requiring a pergola and screening.
• Bill Oliver (Former SMCA President, Fall 2019 – April 2020): Confirmed that the Board approved the hot tub retroactively with the stipulation for a pergola and screening. He stated the Board had a “rigorous process of enforcement” but could not recall if a specific violation letter was sent to the Kinstles after the conditional approval was granted.
• Jodie Cervantes (Former Community Manager, 2019 – June 2020): Testified that she believed the CC&Rs were enforced and the matter was closed. She suggested the Kinstles had a six-month period to comply with the screening requirement, which she believed was in the Design Guidelines, but could not point to the specific language.
• Martin Douglas (Current SMCA President, from April 2020): Stated he had been to the Pierce residence for another matter and the hot tub was not visible to him. He attributed the lack of enforcement action to the “ongoing litigation and multiple settlement offers which were being exchanged.” He testified that upon resolution of the case, the Board “will follow through with enforcement actions should the Kinstle’s fail to comply.”
4. Judicial Reasoning and Decision
The Administrative Law Judge’s decision centered on the interpretation of the SMCA’s CC&Rs and the discretionary power of its Board.
Governing CC&R Provisions
The ruling rested on the specific language of two sections of the SMCA CC&Rs:
• Section 4.27 (Swimming Pools and Spas): This section permits the installation of a hot tub only if it is “properly screened… if neither it nor its occupants are Visible from Neighboring Property, and with the prior written approval of the Architectural Review Committee.”
• Section 11.1 (Enforcement): This section states that “The Association or any Owner shall have the right to enforce the Project Documents… The failure of the Association or an Owner to take enforcement action with respect to a violation of the Project Documents shall not constitute or be deemed a waiver of the right of the Association or any Owner to enforce the Project Documents in the future.”
Administrative Law Judge’s Conclusions
1. Resolution of the Section 4.27 Claim: The judge determined that the initial issue regarding the unapproved hot tub “was essentially resolved by the Board instructing the Kinstle’s erect a pergola and install screening.” By making its approval conditional on a privacy solution, the Board addressed the core requirement of the section.
2. The “Heart of the Matter” – Section 11.1 Enforcement: The judge identified the central question as whether the SMCA violated Section 11.1 by failing to enforce the screening requirement against the Kinstles.
3. Discretionary vs. Mandatory Enforcement: The judge concluded that the language of Section 11.1 grants the Board a “right to enforce, not an absolute obligation.”
4. Rationale for Delayed Enforcement: The judge found the testimony of the current SMCA President, Martin Douglas, to be “more persuasive.” Douglas’s explanation—that the Board delayed enforcement to “foster an agreement with the neighbors” amid ongoing litigation—was accepted as a valid exercise of the Board’s discretion.
5. Final Ruling: The judge stated, “Section 11.1 expressly granted the Board this discretion, and it should not be disturbed.” Consequently, the judge ruled that the Petitioner failed to prove by a preponderance of the evidence that the Respondent had violated CC&R Section 11.1.
Final Order
IT IS ORDERED that Petitioners’ petition is denied.
The order was issued on February 10, 2021, and is binding unless a rehearing is granted.
Study Guide – 20F-H2020053-REL
Study Guide: Pierce v. Sierra Morado Community Association (Case No. 20F-H2020053-REL)
This study guide provides a review of the administrative hearing concerning the dispute between Erik R. Pierce and the Sierra Morado Community Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a comprehensive glossary of terms and entities involved in the case.
Short-Answer Quiz
Answer each of the following questions in two to three complete sentences, based on the provided source documents.
1. Who were the primary parties in this case, and what were their respective roles?
2. What was the initial reason for Mr. Pierce’s complaint against his neighbors, the Kinstles?
3. Which two sections of the Sierra Morado Community Association (SMCA) CC&Rs did Mr. Pierce allege were violated?
4. What action did the SMCA Board take after being informed that the Kinstles had installed a hot tub without prior approval?
5. What specific conditions did the SMCA Board require for the retroactive approval of the Kinstles’ hot tub installation?
6. According to former Board President Bill Oliver’s testimony, what was the Board’s common practice regarding architectural requests made after an installation?
7. What reason did Community Manager Jodie Cervantes give for her belief that no further enforcement action could be taken against the Kinstles?
8. According to current SMCA Board President Martin Douglas, why had the Board delayed enforcement actions against the Kinstles?
9. What was the Administrative Law Judge’s final decision regarding the alleged violation of CC&R Section 11.1?
10. How did the judge interpret the Board’s enforcement power as described in Section 11.1 of the CC&Rs?
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Answer Key
1. The primary parties were Erik R. Pierce, who was the Petitioner filing the complaint, and the Sierra Morado Community Association (SMCA), which was the Respondent. Mr. Pierce is a homeowner and member of the SMCA.
2. Mr. Pierce’s complaint originated because his neighbors, the Kinstles, installed a hot tub that was visible from his backyard. He testified that occupants in the hot tub were visible from inside his house, violating his privacy.
3. The Petitioner, Mr. Pierce, alleged that the Respondent, SMCA, was in violation of sections 4.27 and 11.1 of the SMCA CC&Rs. Section 4.27 pertains to the installation of spas, and Section 11.1 addresses the enforcement of project documents.
4. After Mr. Pierce filed his complaint, the SMCA informed the Kinstles that they had installed the hot tub without approval. The Board then directed the Kinstles to submit their plans and go through the proper architectural approval process.
5. The Kinstles’ hot tub was approved retroactively on February 10, 2020, on the condition that they install a pergola and screening. This was intended to address the visibility of the hot tub from Mr. Pierce’s property.
6. Bill Oliver, the SMCA President from fall 2019 to April 2020, testified that the Board would approve architectural requests retroactively. He confirmed that this is what occurred in the case of the Kinstles’ hot tub.
7. Jodie Cervantes, the Community Manager, testified that she believed the matter was closed because the Kinstles had six months to comply with the pergola and screening requirements. She believed this six-month deadline was outlined in the Design Guidelines, though she could not locate the specific language.
8. Martin Douglas, who became Board President in April 2020, testified that the Board delayed enforcement actions due to the ongoing litigation. He stated that multiple settlement offers were being exchanged in an effort to foster an agreement between the neighbors.
9. The Administrative Law Judge ordered that the Petitioner’s petition be denied. The judge concluded that Mr. Pierce did not establish by a preponderance of the evidence that the SMCA had violated CC&R Section 11.1.
10. The judge determined that Section 11.1 grants the Board a right to enforce the rules, not an absolute obligation to do so. This interpretation means the Board has the discretion to delay enforcement, which it did in this case to facilitate a potential settlement.
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Essay Questions
The following questions are designed for longer, essay-style responses. Use evidence and testimony from the case documents to construct a thorough analysis. No answers are provided.
1. Explain the legal standard of “preponderance of the evidence” as defined in the Administrative Law Judge’s decision. Analyze why the Petitioner, Erik R. Pierce, failed to meet this burden of proof concerning the violation of CC&R Section 11.1.
2. Trace the timeline of events from Mr. Pierce’s initial complaint on September 4, 2019, to the final decision on February 10, 2021. Discuss the key actions, delays, and decisions made by the SMCA Board during this period.
3. Compare and contrast the testimonies of Bill Oliver, Jodie Cervantes, and Martin Douglas. How do their different roles and timeframes with the SMCA shape their perspectives on the association’s enforcement process and the specific handling of the Kinstle case?
4. Analyze the Administrative Law Judge’s interpretation of CC&R Section 11.1. Discuss the distinction made between a “right to enforce” and an “absolute obligation,” and explain how this interpretation was central to the final ruling.
5. Based on the judge’s findings and the testimony of Martin Douglas, what are the likely next steps for the SMCA regarding the Kinstles’ non-compliance with the pergola and screening requirement? Evaluate the potential for future conflict or resolution between the parties involved.
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Glossary of Key Terms
Term / Entity
Definition
AAM, LLC
The property management company that employed Community Manager Jodie Cervantes and managed the Sierra Morado Community Association during the period of the dispute.
Administrative Law Judge (ALJ)
The official who presides over administrative hearings. In this case, the ALJ was Adam D. Stone of the Office of Administrative Hearings.
Architectural Committee (ARC)
The committee within the SMCA responsible for approving construction, installations, and alterations to properties, as referenced in CC&R Section 4.27.
Arizona Department of Real Estate (ADRE)
The state agency authorized by statute to receive and decide Petitions for Hearing from members of homeowners’ associations. Mr. Pierce filed his initial complaint with this department.
Burden of Proof
The obligation on a party in a legal case to prove its allegations. In this case, the Petitioner had the burden to establish his claim by a “preponderance of the evidence.”
Covenants, Conditions, and Restrictions. These are the governing documents or rules of a planned community. The dispute centered on alleged violations of Sections 4.27 (Swimming Pools and Spas) and 11.1 (Enforcement).
Hearing
The formal proceeding held on January 25, 2021, where the parties presented exhibits and witness testimony to the Administrative Law Judge.
Office of Administrative Hearings
An independent state agency that conducts evidentiary hearings for other state agencies, such as the Department of Real Estate.
Petitioner
The party who files a petition or complaint to initiate a legal proceeding. In this case, the Petitioner was Erik R. Pierce.
Preponderance of the Evidence
The evidentiary standard required for the Petitioner to win the case. It is defined as proof that convinces the trier of fact that a contention is “more probably true than not.”
Respondent
The party against whom a petition or complaint is filed. In this case, the Respondent was the Sierra Morado Community Association (SMCA).
Retroactive Approval
The act of approving an architectural installation (such as a hot tub) after it has already been completed, which the SMCA Board did in this case.
Sierra Morado Community Association (SMCA)
The homeowners’ association in Tucson, Arizona, of which Erik R. Pierce and the Kinstles are members.
Stipulation
An agreement between the parties in a legal proceeding. In this case, the parties stipulated to enter all submitted exhibits into the record.
Blog Post – 20F-H2020053-REL
Your HOA Can Ignore Its Own Rules? A Surprising Legal Case Every Homeowner Needs to Understand
Introduction: The Homeowner’s Dilemma
Most homeowners in a planned community operate under a simple assumption: if a neighbor violates a clear rule, you can file a complaint, and the Homeowners Association (HOA) is required to take action. It’s the fundamental promise of an HOA—consistent enforcement to protect property values and quality of life.
But what happens when the HOA agrees a violation has occurred, demands a fix, and then… does nothing to enforce it?
A real-world legal case, Erik R. Pierce versus the Sierra Morado Community Association, provides a surprising and cautionary answer. The final court decision reveals a critical loophole that may exist in your own HOA agreement. This article will break down the three most counter-intuitive takeaways from that case that every homeowner should understand.
Takeaway 1: “A Right to Enforce” Isn’t an “Obligation to Enforce”
The core of the dispute was straightforward. Homeowner Erik Pierce filed a complaint because his neighbors, the Kinstles, installed a hot tub that was visible from his property, a violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs)—the legally binding rules that govern the community. The HOA’s Architectural Committee retroactively approved the hot tub, but only on the condition that the neighbors install a pergola and screening to shield it from view.
The neighbors never installed the required screening, yet the HOA took no further enforcement action. This inaction led Mr. Pierce to sue the HOA.
The judge’s decision hinged on a crucial interpretation of the HOA’s governing documents. The judge ruled in favor of the HOA because the documents gave the Board the right to enforce the rules, not an absolute obligation to do so. This distinction granted the HOA discretion to choose its strategy. The judge found the board’s reasoning for the delay persuasive: it was deliberately choosing negotiation over immediate punitive action to resolve the conflict. The board’s discretion wasn’t just a right to do nothing; it was a right to choose a different path to compliance.
The key phrase here is “shall have the right to enforce.” Had the documents stated the board “shall enforce,” the outcome would likely have been entirely different. This single phrase transforms enforcement from a mandate into a strategic option for the board.
The Administrative Law Judge’s decision highlights this critical point:
“…Section 11.1 only gives the Board a right to enforce, not an absolute obligation. While Petitioner is understandably upset that there has yet to be any follow through on enforcement of the screening requirements, this tribunal finds the testimony of Mr. Douglas more persuasive, namely that the Board has delayed in enforcing because it was trying to foster an agreement with the neighbors. Section 11.1 expressly granted the Board this discretion, and it should not be disturbed.”
This finding is shocking for most homeowners, who reasonably assume that the rules laid out in their CC&Rs are mandates for the board, not a menu of discretionary options.
Takeaway 2: Suing Your HOA Can Ironically Pause Enforcement
The board’s discretionary power was put on full display when Mr. Pierce filed his lawsuit, creating a legal Catch-22. The current SMCA Board President, Martin Douglas, testified that the board deliberately paused formal enforcement actions against the neighbors who had violated the architectural requirement.
The judge ultimately found that the board’s rationale for this pause was a valid exercise of its discretion. The decision to delay was framed not as inaction, but as a strategic choice “to foster an agreement with the neighbors” amidst the complexities of litigation.
This reveals a deep irony: by filing a petition to force the HOA’s hand, the homeowner inadvertently provided the context for the HOA to justify a delay. The judge accepted that the board’s attempt to find a negotiated solution instead of escalating fines and penalties during an active lawsuit was a reasonable use of its discretionary authority. This case demonstrates how legal action, intended to accelerate a resolution, can sometimes be used by an HOA board to justify a different, slower approach.
Takeaway 3: A Clear Rule Violation Doesn’t Guarantee a Win in Court
One of the most surprising aspects of this case is that the facts of the violation were not in dispute. The judge explicitly acknowledged that the neighbors were in violation of the Architectural Review Committee’s requirement. The official decision states:
“Based upon the evidence provided, the Kinstle’s are in violation of the requirement the ARC Committee imposed on them.”
Despite this clear violation by the neighbor, the homeowner, Mr. Pierce, still lost his case against the HOA.
The case was lost on a critical legal distinction: the lawsuit was not about the neighbor’s violation, but about the HOA’s alleged failure to act. Since the judge determined the HOA had the discretionary right—not the mandatory obligation—to enforce the rule, its choice to pursue negotiation rather than immediate punitive action was not considered a violation of its duties.
The lesson here is profound: proving a neighbor is breaking the rules is only the first step. To win a case against your HOA for non-enforcement, you must also prove that its response (or lack thereof) constitutes a breach of its specific duties as outlined in your community’s governing documents.
Conclusion: Know Your Documents, Temper Your Expectations
The case of Pierce v. Sierra Morado Community Association serves as a stark reminder that HOA governance is often more complex than it appears. The precise wording of your community’s CC&Rs is critically important, as a single phrase can be the difference between a mandatory duty and a discretionary power. This case illustrates that the gap between a rule existing on paper and the board’s power to enforce it can be vast.
As a homeowner, your first step should be to obtain a copy of your community’s most recent CC&Rs and search for the enforcement clause—does it say your board “shall” enforce the rules, or does it say they have the “right” to?
This case forces every homeowner to ask: If your governing documents give your board the ‘right’ to act, what leverage do you truly have to ensure they actually will?
Case Participants
Petitioner Side
Erik R. Pierce(petitioner)
James C. Frisch(petitioner attorney) King & Frisch, P.C.
Michael Resare(petitioner attorney)
Respondent Side
Nicholas C.S. Nogami(respondent attorney) Carpenter, Hazlewood, Delgado & Bolen, LLP
Heather M. Hampstead(respondent attorney) Carpenter, Hazlewood, Delgado & Bolen, LLP
Jodie Cervantes(property manager/witness) AAM, LLC Community Manager for Respondent SMCA
Bill Oliver(board member/witness) Former SMCA President (Fall 2019 to April 2020)
Martin Douglas(board member/witness) Current SMCA Board President (since April 2020)
Neutral Parties
Adam D. Stone(ALJ)
Judy Lowe(Commissioner) Arizona Department of Real Estate
LDettorre(unknown) Arizona Department of Real Estate Transmission recipient
AHansen(unknown) Arizona Department of Real Estate Transmission recipient
djones(unknown) Arizona Department of Real Estate Transmission recipient
DGardner(unknown) Arizona Department of Real Estate Transmission recipient
ncano(unknown) Arizona Department of Real Estate Transmission recipient
CC&Rs Article 7, Section 7.3, and Article 9, Sections 9.3, 9.4, and 9.5
Outcome Summary
The ALJ concluded that Foothills demonstrated Respondents' violation of the community governing documents by commencing and continuing construction of a second-story Addition without obtaining the required Architectural Committee approval. Foothills was deemed the prevailing party, and Respondents' appeal was dismissed.
Key Issues & Findings
Unauthorized 2nd story addition
Respondents constructed a second-story Addition to their property without first obtaining approval from the Foothills Architectural Committee, violating the community governing documents.
Orders: Respondents’ appeal is dismissed, and Foothills is deemed the prevailing party with regard to its Petition.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_win
Cited:
CC&Rs Article 7, Section 7.3
CC&R Article 9, Section 9.3
CC&R Article 9, Section 9.4
CC&R Article 9, Section 9.5
Analytics Highlights
Topics: architectural review, cc&r violation, unapproved construction, second story addition, prevailing party
Additional Citations:
A.R.S. §§ 32-2102
A.R.S. §§ 32-2199 et al.
A.R.S. §§ 32-2199(2)
A.R.S. §§ 32-2199.01(D)
A.R.S. §§ 32-2199.02
A.R.S. § 32-2199.05
A.R.S. § 41-1092
A.R.S. §32-2199.02(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.09
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
ARIZ. ADMIN. CODE R2-19-119
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
21F-H2120004-REL Decision – 839537.pdf
Uploaded 2026-01-23T17:34:43 (135.4 KB)
Briefing Doc – 21F-H2120004-REL
Briefing Document: Foothills Club West HOA v. Subrahmanyam & Sudhakar Living Trust
Executive Summary
This document synthesizes the findings and decision in the case of Foothills Club West Homeowners Association v. Subrahmanyam & Sudhakar Living Trust (No. 21F-H2120004-REL), adjudicated by the Arizona Office of Administrative Hearings. The core dispute involved the construction of a second-story addition by homeowners (Respondents) without the prior approval of the Homeowners Association (Petitioner), a direct violation of the community’s governing documents.
The Administrative Law Judge (ALJ) found conclusively in favor of the Foothills Club West HOA. The evidence demonstrated that the Respondents not only began construction without seeking approval but continued the project even after receiving a formal denial from the HOA’s Architectural Committee. A subsequent agreement between the parties, wherein the Respondents would demolish the addition in exchange for a waiver of fines, was not honored by the Respondents. The ALJ dismissed the Respondents’ appeal and declared the HOA the prevailing party, validating its authority to enforce the community’s architectural standards as outlined in its Covenants, Conditions, and Restrictions (CC&Rs).
I. Case Overview
• Case Name: Foothills Club West Homeowners Association, Petitioner, v. Subrahmanyam & Sudhakar Living Trust, Respondent.
• Case Number: 21F-H2120004-REL
• Jurisdiction: Arizona Office of Administrative Hearings
• Administrative Law Judge: Kay Abramsohn
• Hearing Date: October 5, 2020
• Decision Date: November 27, 2020
• Central Issue: The petition filed by Foothills HOA on July 24, 2020, alleged that the Respondents constructed an unauthorized and unapproved second-story addition to their property. This action was alleged to be in violation of CC&Rs Article 7, Section 7.3, and Article 9, Sections 9.3, 9.4, and 9.5.
II. Chronology of Key Events
The hearing record established the following undisputed sequence of events:
Oct. 2018
Respondents begin construction of the second-story addition.
Nov. 7, 2018
The City of Phoenix issues a stop-work order, noting a permit is required.
Nov. 7, 2018
Foothills HOA issues a violation notice to the Respondents.
Dec. 17, 2018
Respondents obtain a permit from the City of Phoenix.
Jan. 18, 2019 (approx.)
Respondents submit a request for approval to the Foothills Architectural Committee.
Jan. 18, 2019
Foothills HOA issues a penalty notice to the Respondents, with further notices issued monthly.
Feb. 22, 2019
Foothills HOA issues a formal denial of the application.
Mar. 15, 2019
The City of Phoenix gives final approval to the construction and issues a Certificate of Occupancy.
Post Feb. 2019
The parties reach an agreement for Respondents to demolish the addition in exchange for a waiver of fines.
July 24, 2020
Foothills HOA files its petition, noting Respondents have not complied with the demolition agreement.
Oct. 5, 2020
The administrative hearing is held.
Nov. 27, 2020
The Administrative Law Judge issues the final decision.
III. Arguments of the Parties
A. Petitioner: Foothills Club West HOA
• Violation of CC&Rs: The HOA argued that the Respondents violated CC&R Article 9, Section 9.3 by commencing construction without first obtaining approval from the Architectural Committee.
• Disregard for Denial: The HOA asserted that the Respondents completed the addition after receiving a formal denial of their application.
• Breach of Agreement: The HOA noted that the parties had reached a settlement agreement for demolition, which the Respondents failed to honor. The HOA requested that the Tribunal enforce this agreement.
• Jurisdictional Distinction: The HOA maintained that approval from the City of Phoenix was a separate matter and did not negate the requirement to obtain approval from the HOA as mandated by the governing documents.
B. Respondents: Subrahmanyam & Sudhakar Living Trust
• Initial Ignorance: Respondents claimed they were initially unaware of the HOA approval requirements.
• Attempted Compliance: They argued that once notified, they followed the association’s guidance, met with the Board, and sought approval.
• Vague Denial: Respondents stated they did not understand the meaning of the denial reason, “Fails aesthetics of surrounding community,” or how the addition specifically violated community rules.
• Lack of Due Process: They argued they did not receive a letter indicating an appeal process was available and therefore felt they had not received a final “denial.”
• Demolition Delay: While not disputing the existence of the demolition agreement, Respondents cited COVID-19 issues and safety concerns for their at-risk family as reasons for requesting more time.
• Final Appeal: At the hearing, Respondents reversed their position on the agreement and requested to be allowed to keep the addition.
IV. Analysis of Governing Documents
The decision centered on specific provisions within the Foothills Club West governing documents, which constitute the contract between the HOA and the homeowners.
• CC&R Article 9, Section 9.3 (Architectural Approval): This section was central to the case. It states in pertinent part:
• CC&R Article 9, Section 9.4 (Obligation to Obtain Approval): This provision explicitly sets forth a homeowner’s obligation to secure approval from the Architectural Committee.
• CC&R Article 9, Section 9.5 (Exterior Appearance): This section clarifies that while the HOA cannot limit interior remodeling, it retains jurisdiction over any changes that are “visible from outside such [home] … or affects the exterior appearance of such [home].”
• Amended Architectural Guidelines (2013): These guidelines reinforce the CC&Rs, specifying that a homeowner’s plans must be submitted for approval through the Architectural Committee on a case-by-case basis.
V. Administrative Law Judge’s Decision and Rationale
The ALJ’s conclusions of law provided a clear framework for the final order.
A. Burden of Proof
The ALJ established that in this proceeding, the petitioner (Foothills HOA) bore the burden of proving by a “preponderance of the evidence” that the Respondents had violated the governing documents. A preponderance of the evidence is defined as “proof as convinces the trier of fact that the contention is more probably true than not.”
B. Core Conclusion on Violations
The ALJ found that the HOA had successfully met its burden of proof. The central conclusion of law states:
“The Administrative Law Judge concludes that Foothills has demonstrated Respondents’ violation of the community governing documents, as stated in CC&R Article 9, Sections 9.3, 9.4, and 9.5, because Respondents began to construct a modification, the Addition, to their existing home prior to obtaining approval from Foothills Architectural Committee and, further, Respondents continued to construct the Addition despite receiving a denial of approval from Foothills Architectural Committee.”
This finding affirmed that the Respondents committed two distinct violations: starting work without approval and continuing work after being explicitly denied approval.
VI. Final Order and Implications
Based on the findings of fact and conclusions of law, the ALJ issued a decisive order.
• Order:
• Binding Nature: The decision notes that the order is binding on both parties unless a rehearing is requested. Pursuant to A.R.S. § 41-1092.09, a request for rehearing must be filed with the Commissioner of the Arizona Department of Real Estate within 30 days of the service of the order.
Study Guide – 21F-H2120004-REL
Study Guide: Foothills Club West HOA v. Subrahmanyam & Sudhakar Living Trust
This guide provides a detailed review of the Administrative Law Judge Decision in case No. 21F-H2120004-REL. It includes a short-answer quiz to test factual recall, essay questions for deeper analysis, and a comprehensive glossary of key terms found within the document.
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Short-Answer Quiz
Instructions: Answer the following ten questions in 2-3 sentences each, based on the information provided in the source document.
1. Who are the Petitioner and Respondent in this case, and what is their relationship?
2. What was the single issue raised in the petition filed by Foothills Club West Homeowners Association?
3. According to the Petition, which specific articles and sections of the governing documents did the Respondents allegedly violate?
4. What action did the City of Phoenix take on November 7, 2018, regarding the Respondents’ construction project?
5. What reasons did the Foothills Architectural Committee provide for denying the Respondents’ application on February 22, 2019?
6. Prior to the hearing, what agreement did the parties reach in an attempt to resolve the dispute?
7. What was the Respondents’ primary argument for their actions and for their failure to comply with the association’s denial?
8. What is the legal standard of proof required in this case, and which party bore the burden of meeting it?
9. Explain the difference between the City of Phoenix’s approval and the Foothills Architectural Committee’s approval, as argued by the Petitioner.
10. What was the final order issued by the Administrative Law Judge in this matter?
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Answer Key
1. The Petitioner is the Foothills Club West Homeowners Association (“Foothills”). The Respondent is the Subrahmanyam & Sheila Sudhakar Living Trust. Their relationship is that of a homeowners’ association and a member homeowner residing within the planned community for 22 years.
2. The single issue raised was that the Respondents constructed an unauthorized and unapproved second-story addition to their property. The construction was completed even after the Foothills Architectural Committee had issued a denial of the project.
3. Foothills alleged that the Respondents violated the CC&Rs Article 7, Section 7.3, and Article 9, Sections 9.3, 9.4, and 9.5. These articles pertain to the rights and obligations of the association and the architectural standards requiring prior approval for modifications.
4. On November 7, 2018, the City of Phoenix issued a stop-work order for the Respondents’ construction project. The order noted that the work being performed required a permit, which had not yet been obtained.
5. The Foothills Architectural Committee denied the application because it needed copies of the City permit, the plans were incomplete, and there was no documentation on the roof line or roofing materials. Furthermore, the denial stated that the project “Fails aesthetics of surrounding community.”
6. The parties came to an agreement wherein the Respondents would complete the demolition of the second-story addition. In exchange, Foothills agreed to waive the penalties that had been imposed on the Respondents for the violation.
7. The Respondents argued that they initially did not know what was required and that they cooperated with the association’s Board once notified. They claimed they did not understand what “Fails aesthetics” meant, did not receive a letter about an appeal process, and therefore did not feel they had received a final “denial.”
8. The legal standard of proof is a “preponderance of the evidence,” which is defined as proof that convinces the trier of fact that a contention is more probably true than not. The Petitioner, Foothills, bore the burden of proving the Respondents’ violation by this standard.
9. Foothills argued that approval from the City of Phoenix and approval from the association’s Architectural Committee were two different and separate matters. Even though the Respondents eventually received a City permit and a Certificate of Occupancy, this did not override the CC&R requirement to first obtain approval from Foothills.
10. The Administrative Law Judge ordered that the Respondents’ appeal be dismissed. The Judge deemed Foothills the prevailing party with regard to its petition, finding that Foothills had demonstrated the Respondents’ violation of the community’s governing documents.
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Essay Questions
Instructions: The following questions are designed for longer, more analytical responses. Formulate an essay-style answer for each, drawing evidence and support directly from the provided legal decision.
1. Analyze the arguments presented by both the Petitioner (Foothills) and the Respondents at the hearing. Discuss the key evidence and claims each party used to support their position and explain why the Administrative Law Judge ultimately found the Petitioner’s case more persuasive.
2. Explain the distinct roles and jurisdictions of the Homeowners Association’s Architectural Committee and the City of Phoenix regarding the Respondents’ construction project. Why was obtaining a City permit and a Certificate of Occupancy insufficient for the Respondents to proceed without violating the community’s governing documents?
3. Trace the procedural history of case No. 21F-H2120004-REL, from the filing of the initial petition to the final order. Discuss key filings, motions, and deadlines mentioned in the document, including the Respondents’ attempt to consolidate another case.
4. Discuss the significance of the “contract” between the parties, as defined in footnote 15. How do the CC&Rs and the amended Architectural Guidelines function as this contract, and which specific sections were central to the judge’s conclusion that a violation occurred?
5. Evaluate the Respondents’ attempt to justify their failure to demolish the addition as per their agreement with Foothills, citing COVID-19 issues. How did their request at the hearing to keep the addition conflict with their prior agreement, and what does this reveal about their position in the dispute?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official, in this case Kay Abramsohn, who presides over administrative hearings at the Office of Administrative Hearings and issues decisions.
Architectural Committee
A committee appointed by the Foothills HOA, as established by CC&R Article 9, with the authority to review, approve, or disapprove plans for construction, modifications, and additions to properties within the community.
An abbreviation for the Declaration of Covenants, Conditions and Restrictions. These are the governing documents that form a binding contract between the homeowners association and the property owners, outlining their rights and obligations.
Disclosure
The formal process by which parties in a legal case provide evidence, exhibits, and information to each other before a hearing. The deadline for disclosure in this case was September 29, 2020.
Governing Documents
The set of rules for the planned community, including the CC&Rs and the amended Architectural Guidelines, which have the same force and effect as association rules.
Petitioner
The party who initiates a legal proceeding by filing a petition. In this case, the Foothills Club West Homeowners Association.
Petition
The formal document filed with the Arizona Department of Real Estate to initiate a hearing concerning violations of community governing documents. In this case, it was a “single-issue petition.”
Preponderance of the Evidence
The standard of proof required in this administrative hearing. It is defined as “proof as convinces the trier of fact that the contention is more probably true than not.”
Respondent
The party against whom a petition is filed and who is required to respond to the allegations. In this case, the Subrahmanyam & Sheila Sudhakar Living Trust.
Tribunal
The Arizona Office of Administrative Hearings, the state agency authorized by statute to hear and decide contested matters referred to it, such as this dispute.
Blog Post – 21F-H2120004-REL
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21F-H2120004-REL
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This text is an Administrative Law Judge Decision from the Arizona Office of Administrative Hearings concerning a dispute between the Foothills Club West Homeowners Association and the Subrahmanyam & Sudhakar Living Trust. The Petitioner, the Foothills Club West Homeowners Association, filed a petition alleging that the Respondents constructed an unauthorized second-story addition to their property in violation of the association’s governing documents, specifically the CC&Rs Article 9, Sections 9.3, 9.4, and 9.5. The Administrative Law Judge determined that the Respondents violated these community documents by beginning construction prior to obtaining approval from the Foothills Architectural Committee and continuing the work despite receiving a denial. The judge ultimately concluded that Foothills was the prevailing party and dismissed the Respondents’ appeal, effectively upholding the violation finding.
What are the specific governing document violations alleged and proven against the homeowners?
How did the legal and administrative process address the unauthorized construction dispute?
What was the final resolution ordered regarding the unapproved second-story home addition?
Based on 1 source
Case Participants
Petitioner Side
John Halk(HOA attorney) BROWN/OLCOTT, PLLC Represented Petitioner Foothills Club West Homeowners Association
Nathan Tennyson(HOA attorney) BROWN/OLCOTT, PLLC Counsel for Petitioner
Respondent Side
Mary T. Hone(Respondent attorney) Mary T. Hone, PLLC Counsel for Respondent Trustees Subrahmanyam & Sheila Sudhakar
Subrahmanyam Sudhakar(respondent) Subrahmanyam & Sheila Sudhakar Living Trust Trustee of the Respondent Living Trust
Sheila Sudhakar(respondent) Subrahmanyam & Sheila Sudhakar Living Trust Trustee of the Respondent Living Trust
Neutral Parties
Kay Abramsohn(ALJ) Office of Administrative Hearings Administrative Law Judge
Judy Lowe(Commissioner) Arizona Department of Real Estate
LDettorre(Agency Staff) Arizona Department of Real Estate Recipient of electronic transmission of Order
AHansen(Agency Staff) Arizona Department of Real Estate Recipient of electronic transmission of Order
djones(Agency Staff) Arizona Department of Real Estate Recipient of electronic transmission of Order
DGardner(Agency Staff) Arizona Department of Real Estate Recipient of electronic transmission of Order
ncano(Agency Staff) Arizona Department of Real Estate Recipient of electronic transmission of Order
The Petition was upheld on all issues asserted by the Petitioner. The Respondent was found in violation of A.R.S. § 33-1250(C) (failure to provide election documents), A.R.S. § 33-1248(B) (failure to hold an annual meeting in 2019), and Article 3, Section 2 of the Bylaws (improperly prohibiting write-in ballots). Respondent was ordered to supply Petitioner with relevant documents and refund the Petitioner's filing fee of $1,500.00. No Civil Penalty was found appropriate.
Respondent failed to provide Petitioner with the required election materials and documentation from the October 2018 elections, violating statutory requirements for retention and availability of these materials for owner inspection.
Orders: Respondent ordered to supply Petitioner with the relevant documents, pursuant to A.R.S. § 33-1250(C), within ten (10) days of the Order.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1250(C)
Open meetings; exceptions
Respondent postponed its required yearly 2019 meeting until January 2020, resulting in a failure to hold a unit owners' association meeting in 2019 as required by statute.
Orders: Petition upheld on this issue.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1248(B)
Selection
Respondent's board of directors declared write-in ballots invalid for the November 20, 2019, election. Since the Bylaws were silent on prohibiting write-in ballots, Respondent failed to show how the ballots were invalid.
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
20F-H2019033-REL Decision – 778923.pdf
Uploaded 2026-01-23T17:31:15 (108.5 KB)
Briefing Doc – 20F-H2019033-REL
Briefing Document: Bischoff v. Country Hills West Condominium Association
Executive Summary
This document synthesizes the findings and decision in the case of Donna M. Bischoff v. Country Hills West Condominium Association, Inc. (No. 20F-H2019033-REL), heard by the Arizona Office of Administrative Hearings. The Administrative Law Judge found entirely in favor of the Petitioner, Donna M. Bischoff, concluding that the Respondent, Country Hills West Condominium Association (“the Association”), committed multiple violations of Arizona state statutes and its own governing documents.
The core violations upheld by the court are:
1. Failure to Hold a Required Annual Meeting: The Association violated A.R.S. § 33-1248(B) by failing to hold its required annual meeting within the 2019 calendar year, repeatedly postponing it until January 2020.
2. Failure to Provide Election Records: The Association violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with complete election materials for inspection, including ballots, envelopes, and sign-in sheets from the October 2018 election.
3. Improper Prohibition of Write-In Ballots: The Association violated Article 3, Section 2 of its Bylaws by unilaterally prohibiting write-in ballots for the 2019 election, despite its governing documents being silent on the issue.
As a result, the Association was ordered to provide the requested documents to the Petitioner within ten days and to reimburse her $1,500 filing fee within thirty days. The decision underscores the legal obligation of homeowners’ associations to adhere strictly to statutory requirements for meetings, elections, and record transparency.
——————————————————————————–
I. Case Overview
The dispute was adjudicated by the Office of Administrative Hearings following a petition filed by homeowner Donna M. Bischoff with the Arizona Department of Real Estate on December 11, 2019.
Case Detail
Information
Case Name
Donna M Bischoff, Petitioner, v. Country Hills West Condominium Association, Inc., Respondent
Case Number
20F-H2019033-REL
Adjudicator
Administrative Law Judge Antara Nath Rivera
Hearing Date
March 10, 2020
Decision Date
March 30, 2020
Petitioner Representative
Donna M. Bischoff (on her own behalf)
Respondent Representative
Doug Meyer, President and Director
II. Petitioner’s Allegations
The Petitioner, Donna M. Bischoff, asserted that the Country Hills West Condominium Association committed violations of state law and its own governing documents. The specific allegations were:
• Violation of A.R.S. § 33-1248(B): Failure to hold the mandatory annual unit owners’ association meeting within the 2019 calendar year.
• Violation of A.R.S. § 33-1250(C): Failure to make election materials, including ballots and related items, available for inspection by a unit owner.
• Violation of Bylaws Article 3, Section 2: Improperly invalidating election ballots by prohibiting write-in candidates without any authority from the governing documents.
The Petitioner bore the burden of proof to establish these violations by a “preponderance of the evidence,” defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
III. Core Issues and Factual Findings
The hearing established several key facts that formed the basis of the Judge’s decision. The testimony from both Ms. Bischoff and the Association’s President, Doug Meyer, was central to these findings.
A. Failure to Hold the 2019 Annual Meeting
• Timeline of Events: The Association’s required annual meeting for 2019 was initially scheduled for November 20, 2019. It was subsequently postponed three times: first to December 19, 2019; then to December 30, 2019; and ultimately held on January 24, 2020.
• Respondent’s Justification: Mr. Meyer testified that the postponements were necessary because write-in candidates appeared on the ballot, which the board had prohibited. He stated that the board “needed time to reprint the ballot and mail them out.”
• Conclusion of Law: The evidence was undisputed that no annual meeting took place during the 2019 calendar year. The Judge concluded that by postponing the meeting into the following year, the Association was in direct violation of A.R.S. § 33-1248(B), which mandates that “A meeting of the unit owners’ association shall be held at least once each year.”
B. Denial of Access to Election Records
• Petitioner’s Request: In October 2018, Ms. Bischoff requested to see the election results from the October 2018 meeting, specifically seeking to know which units had voted.
• Respondent’s Response: The Association initially did not provide the results. A few weeks prior to the March 2020 hearing, it supplied Ms. Bischoff with vote tallies and a list of unit members who voted. However, it failed to provide the full scope of required materials.
• Missing Documentation: The Association did not provide the “ballots, envelopes, related materials, and sign-in sheets” as mandated by statute for inspection.
• Respondent’s Justification: Mr. Meyer argued that no election actually occurred at the October 18, 2018, meeting because there was no quorum. He further made the admission that the Association had not achieved a quorum for any meeting in the preceding 20 years. He claimed that without an election, there was no obligation to publish ballots.
• Conclusion of Law: The Judge found that the Association violated A.R.S. § 33-1250(C). The statute requires that “Ballots, envelopes and related materials… shall be retained… and made available for unit owner inspection for at least one year.” The partial and delayed provision of records was insufficient to meet this legal requirement.
C. Improper Prohibition of Write-In Ballots
• The Dispute: The November 20, 2019, meeting was cancelled because some ballots contained write-in candidates. The board of directors informed members that write-in ballots were prohibited and would be “thrown out.”
• Petitioner’s Argument: Ms. Bischoff argued that the board could not “choose how to interpret a silent document.” She pointed out that the Bylaws and Articles of Incorporation do not prohibit write-in ballots and that the same board had allowed them in a 2017 election.
• Respondent’s Position: Mr. Meyer acknowledged that the Bylaws were silent on the issue but stated the Association needed to “figure out how to handle” them. A membership meeting to discuss the issue was held on December 30, 2019, but failed to achieve a quorum.
• Conclusion of Law: The Judge determined that the Association violated its own Bylaws. The decision states, “absent any clear language in the A.R.S. or the Bylaws prohibiting write in ballots, Respondent failed to show how the ballots were invalid.” The board’s unilateral prohibition was therefore found to be improper.
IV. Legal Conclusions and Final Order
The Administrative Law Judge upheld the petition on all issues, finding that the Petitioner had successfully proven her case by a preponderance of the evidence.
Final Order:
Based on the foregoing conclusions, IT IS ORDERED that:
1. The Petition filed by Donna M. Bischoff is upheld on all issues.
2. The Petitioner is deemed the prevailing party in the matter.
3. The Respondent must supply the Petitioner with the relevant election documents pursuant to A.R.S. § 33-1250(C) within ten (10) days of the Order.
4. The Respondent must pay the Petitioner’s filing fee of $1,500.00 directly to the Petitioner within thirty (30) days of the Order.
5. No Civil Penalty is found to be appropriate in this matter.
The Order is binding on the parties unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
Study Guide – 20F-H2019033-REL
Study Guide: Bischoff v. Country Hills West Condominium Association, Inc.
This study guide provides a review of the Administrative Law Judge Decision in case number 20F-H2019033-REL, concerning a dispute between a homeowner and a condominium association. It includes a quiz with an answer key, essay questions for deeper analysis, and a glossary of key terms found in the source document.
——————————————————————————–
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 sentences each, based on the provided source document.
1. Who were the primary parties in the legal dispute, and what were their roles?
2. What specific violations did the Petitioner, Donna M. Bischoff, allege against the Respondent?
3. Why was the 2019 yearly meeting for the Country Hills West Condominium Association repeatedly rescheduled?
4. What was the Respondent’s position on the validity of write-in ballots for the November 20, 2019, election?
5. What information did the Petitioner request from the October 2018 election, and what was the initial response?
6. What is the definition of “quorum” according to the association’s Bylaws, and why was it significant in this case?
7. What is the legal standard of proof the Petitioner was required to meet in this hearing?
8. According to the decision, how did the Respondent violate A.R.S. § 33-1248(B) regarding association meetings?
9. According to the decision, how did the Respondent violate A.R.S. § 33-1250(C) regarding election materials?
10. What were the key components of the final Order issued by the Administrative Law Judge?
——————————————————————————–
Answer Key
1. The primary parties were Donna M. Bischoff, the Petitioner, and the Country Hills West Condominium Association, Inc., the Respondent. The Petitioner is the homeowner who filed the complaint, and the Respondent is the homeowners association accused of violations.
2. The Petitioner alleged violations of Arizona Revised Statutes (A.R.S.) § 33-1250(C) and § 33-1248(B), as well as Article 3, Section 2 of the association’s Bylaws. These allegations related to the handling of yearly meetings and elections.
3. The 2019 yearly meeting was initially scheduled for November 20, 2019, but was rescheduled three times, ultimately taking place in January 2020. The first cancellation was because some ballots contained write-in candidates, which the board deemed prohibited.
4. The Respondent’s representative, Doug Meyer, testified that members were informed that write-in ballots were not valid for the November 20, 2019, election. He stated that any ballots with write-in candidates would have been thrown out.
5. The Petitioner requested to see the election results from the October 2018 election, specifically wanting to know which units voted. While she was eventually given the voting tallies, the Respondent did not initially provide the requested results.
6. Quorum is defined in Article 4, Section 3 of the Bylaws. It was significant because the Respondent’s president, Mr. Meyer, acknowledged that the association had not achieved a quorum for its meetings in the last 20 years, and thus no election occurred at the October 18, 2018, meeting.
7. The Petitioner had the burden of proof to establish the alleged violations by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that a contention is more probably true than not.
8. The Respondent violated A.R.S. § 33-1248(B) by failing to hold a required yearly meeting within the calendar year of 2019. The evidence showed that the meeting scheduled for 2019 was postponed until January 2020.
9. The Respondent violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with all required election materials from the 2018 election. While vote tallies were eventually provided, the statute requires that ballots, envelopes, and related materials be retained and made available for inspection for at least one year.
10. The Administrative Law Judge’s Order upheld the Petition on all issues, deemed the Petitioner the prevailing party, and required the Respondent to supply the relevant documents within 10 days. The Order also mandated that the Respondent reimburse the Petitioner’s filing fee of $1,500.00 within 30 days.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for longer, more analytical responses. Use the information presented in the source document to construct a comprehensive argument for each prompt.
1. Analyze the Respondent’s handling of the write-in ballot issue for the 2019 election. Discuss the legal basis (or lack thereof) for their actions as presented in the hearing, and explain why the Administrative Law Judge ultimately ruled that their prohibition of these ballots was a violation of the Bylaws.
2. Explain the concept of “quorum” as it relates to this case. How did the association’s failure to achieve a quorum for 20 years impact its governance, specifically regarding the 2018 meeting and the Respondent’s obligation to produce election records?
3. Describe in detail the specific violations of the Arizona Revised Statutes (A.R.S.) that the Country Hills West Condominium Association was found to have committed. For each statute (A.R.S. § 33-1248(B) and A.R.S. § 33-1250(C)), detail the legal requirement and explain how the Respondent’s actions failed to meet that standard.
4. Discuss the legal standard of “preponderance of the evidence.” Using testimony and evidence presented by both the Petitioner and the Respondent, explain how the Petitioner successfully met this burden of proof for her allegations.
5. Outline the final Order issued by the Administrative Law Judge. Beyond the simple outcome, explain the significance of each component of the order, including the validation of the petition, the designation of a “prevailing party,” the directive to supply documents, and the financial remedy awarded.
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Glossary of Key Terms
Definition
Administrative Law Judge
An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions and orders. In this case, Antara Nath Rivera.
Arizona Department of Real Estate (Department)
The state agency with which a homeowner or planned community organization can file a petition for a hearing concerning violations of community documents or statutes.
Arizona Revised Statutes (A.R.S.)
The collection of laws enacted by the Arizona state legislature. The specific statutes cited were A.R.S. §§ 33-1250(C) and 33-1248(B).
Bylaws
The rules and regulations that govern the internal operations of an organization, such as a homeowners association. In this case, the Bylaws of Country Hills West Association, Inc. were a key document.
Homeowners Association (HOA)
An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents.
Office of Administrative Hearings
The state agency where petitions filed with the Department of Real Estate are heard before an Administrative Law Judge.
Petitioner
The party who files a petition or brings a legal action against another party. In this case, Donna M. Bischoff.
Preponderance of the evidence
The standard of proof in this civil administrative case. It is met when the evidence presented is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”
Quorum
The minimum number of members of an assembly or society that must be present at any of its meetings to make the proceedings of that meeting valid. The Respondent had not achieved quorum for 20 years.
Respondent
The party against whom a petition is filed or a legal action is brought. In this case, Country Hills West Condominium Association, Inc.
Blog Post – 20F-H2019033-REL
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20F-H2019033-REL
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This source is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between Donna M. Bischoff, the Petitioner, and Country Hills West Condominium Association, Inc., the Respondent. The document details the hearing held on March 10, 2020, where the Petitioner alleged the Condominium Association violated Arizona Revised Statutes (A.R.S.) and the association’s Bylaws. Specifically, the Petitioner claimed violations related to the failure to hold a required yearly meeting in 2019, the failure to provide election materials for inspection, and the improper prohibition of write-in ballots where the Bylaws were silent. The Administrative Law Judge ultimately upheld the Petition on all issues, finding the Respondent in violation, and ordered the Association to provide the requested documents and pay the Petitioner’s $1,500.00 filing fee.
What were the specific legal violations found against the Condominium Association regarding meetings and documents?
How did the lack of clarity in the Bylaws regarding write-in ballots impact the association’s actions?
What was the ultimate outcome of this administrative hearing, including the ordered remedies for the petitioner?
Based on 1 source
Case Participants
Petitioner Side
Donna M Bischoff(petitioner) Appeared on her own behalf
Respondent Side
Doug Meyer(president, director, witness) Country Hills West Condominium Association, Inc. Appeared and testified on behalf of Respondent
Neutral Parties
Antara Nath Rivera(ALJ) OAH
Judy Lowe(commissioner) Arizona Department of Real Estate Decision transmitted electronically to Commissioner
The Petition was upheld on all issues asserted by the Petitioner. The Respondent was found in violation of A.R.S. § 33-1250(C) (failure to provide election documents), A.R.S. § 33-1248(B) (failure to hold an annual meeting in 2019), and Article 3, Section 2 of the Bylaws (improperly prohibiting write-in ballots). Respondent was ordered to supply Petitioner with relevant documents and refund the Petitioner's filing fee of $1,500.00. No Civil Penalty was found appropriate.
Respondent failed to provide Petitioner with the required election materials and documentation from the October 2018 elections, violating statutory requirements for retention and availability of these materials for owner inspection.
Orders: Respondent ordered to supply Petitioner with the relevant documents, pursuant to A.R.S. § 33-1250(C), within ten (10) days of the Order.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1250(C)
Open meetings; exceptions
Respondent postponed its required yearly 2019 meeting until January 2020, resulting in a failure to hold a unit owners' association meeting in 2019 as required by statute.
Orders: Petition upheld on this issue.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1248(B)
Selection
Respondent's board of directors declared write-in ballots invalid for the November 20, 2019, election. Since the Bylaws were silent on prohibiting write-in ballots, Respondent failed to show how the ballots were invalid.
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
20F-H2019033-REL Decision – 778923.pdf
Uploaded 2025-10-09T03:34:47 (108.5 KB)
Briefing Doc – 20F-H2019033-REL
Briefing Document: Bischoff v. Country Hills West Condominium Association
Executive Summary
This document synthesizes the findings and decision in the case of Donna M. Bischoff v. Country Hills West Condominium Association, Inc. (No. 20F-H2019033-REL), heard by the Arizona Office of Administrative Hearings. The Administrative Law Judge found entirely in favor of the Petitioner, Donna M. Bischoff, concluding that the Respondent, Country Hills West Condominium Association (“the Association”), committed multiple violations of Arizona state statutes and its own governing documents.
The core violations upheld by the court are:
1. Failure to Hold a Required Annual Meeting: The Association violated A.R.S. § 33-1248(B) by failing to hold its required annual meeting within the 2019 calendar year, repeatedly postponing it until January 2020.
2. Failure to Provide Election Records: The Association violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with complete election materials for inspection, including ballots, envelopes, and sign-in sheets from the October 2018 election.
3. Improper Prohibition of Write-In Ballots: The Association violated Article 3, Section 2 of its Bylaws by unilaterally prohibiting write-in ballots for the 2019 election, despite its governing documents being silent on the issue.
As a result, the Association was ordered to provide the requested documents to the Petitioner within ten days and to reimburse her $1,500 filing fee within thirty days. The decision underscores the legal obligation of homeowners’ associations to adhere strictly to statutory requirements for meetings, elections, and record transparency.
——————————————————————————–
I. Case Overview
The dispute was adjudicated by the Office of Administrative Hearings following a petition filed by homeowner Donna M. Bischoff with the Arizona Department of Real Estate on December 11, 2019.
Case Detail
Information
Case Name
Donna M Bischoff, Petitioner, v. Country Hills West Condominium Association, Inc., Respondent
Case Number
20F-H2019033-REL
Adjudicator
Administrative Law Judge Antara Nath Rivera
Hearing Date
March 10, 2020
Decision Date
March 30, 2020
Petitioner Representative
Donna M. Bischoff (on her own behalf)
Respondent Representative
Doug Meyer, President and Director
II. Petitioner’s Allegations
The Petitioner, Donna M. Bischoff, asserted that the Country Hills West Condominium Association committed violations of state law and its own governing documents. The specific allegations were:
• Violation of A.R.S. § 33-1248(B): Failure to hold the mandatory annual unit owners’ association meeting within the 2019 calendar year.
• Violation of A.R.S. § 33-1250(C): Failure to make election materials, including ballots and related items, available for inspection by a unit owner.
• Violation of Bylaws Article 3, Section 2: Improperly invalidating election ballots by prohibiting write-in candidates without any authority from the governing documents.
The Petitioner bore the burden of proof to establish these violations by a “preponderance of the evidence,” defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
III. Core Issues and Factual Findings
The hearing established several key facts that formed the basis of the Judge’s decision. The testimony from both Ms. Bischoff and the Association’s President, Doug Meyer, was central to these findings.
A. Failure to Hold the 2019 Annual Meeting
• Timeline of Events: The Association’s required annual meeting for 2019 was initially scheduled for November 20, 2019. It was subsequently postponed three times: first to December 19, 2019; then to December 30, 2019; and ultimately held on January 24, 2020.
• Respondent’s Justification: Mr. Meyer testified that the postponements were necessary because write-in candidates appeared on the ballot, which the board had prohibited. He stated that the board “needed time to reprint the ballot and mail them out.”
• Conclusion of Law: The evidence was undisputed that no annual meeting took place during the 2019 calendar year. The Judge concluded that by postponing the meeting into the following year, the Association was in direct violation of A.R.S. § 33-1248(B), which mandates that “A meeting of the unit owners’ association shall be held at least once each year.”
B. Denial of Access to Election Records
• Petitioner’s Request: In October 2018, Ms. Bischoff requested to see the election results from the October 2018 meeting, specifically seeking to know which units had voted.
• Respondent’s Response: The Association initially did not provide the results. A few weeks prior to the March 2020 hearing, it supplied Ms. Bischoff with vote tallies and a list of unit members who voted. However, it failed to provide the full scope of required materials.
• Missing Documentation: The Association did not provide the “ballots, envelopes, related materials, and sign-in sheets” as mandated by statute for inspection.
• Respondent’s Justification: Mr. Meyer argued that no election actually occurred at the October 18, 2018, meeting because there was no quorum. He further made the admission that the Association had not achieved a quorum for any meeting in the preceding 20 years. He claimed that without an election, there was no obligation to publish ballots.
• Conclusion of Law: The Judge found that the Association violated A.R.S. § 33-1250(C). The statute requires that “Ballots, envelopes and related materials… shall be retained… and made available for unit owner inspection for at least one year.” The partial and delayed provision of records was insufficient to meet this legal requirement.
C. Improper Prohibition of Write-In Ballots
• The Dispute: The November 20, 2019, meeting was cancelled because some ballots contained write-in candidates. The board of directors informed members that write-in ballots were prohibited and would be “thrown out.”
• Petitioner’s Argument: Ms. Bischoff argued that the board could not “choose how to interpret a silent document.” She pointed out that the Bylaws and Articles of Incorporation do not prohibit write-in ballots and that the same board had allowed them in a 2017 election.
• Respondent’s Position: Mr. Meyer acknowledged that the Bylaws were silent on the issue but stated the Association needed to “figure out how to handle” them. A membership meeting to discuss the issue was held on December 30, 2019, but failed to achieve a quorum.
• Conclusion of Law: The Judge determined that the Association violated its own Bylaws. The decision states, “absent any clear language in the A.R.S. or the Bylaws prohibiting write in ballots, Respondent failed to show how the ballots were invalid.” The board’s unilateral prohibition was therefore found to be improper.
IV. Legal Conclusions and Final Order
The Administrative Law Judge upheld the petition on all issues, finding that the Petitioner had successfully proven her case by a preponderance of the evidence.
Final Order:
Based on the foregoing conclusions, IT IS ORDERED that:
1. The Petition filed by Donna M. Bischoff is upheld on all issues.
2. The Petitioner is deemed the prevailing party in the matter.
3. The Respondent must supply the Petitioner with the relevant election documents pursuant to A.R.S. § 33-1250(C) within ten (10) days of the Order.
4. The Respondent must pay the Petitioner’s filing fee of $1,500.00 directly to the Petitioner within thirty (30) days of the Order.
5. No Civil Penalty is found to be appropriate in this matter.
The Order is binding on the parties unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
Study Guide – 20F-H2019033-REL
Study Guide: Bischoff v. Country Hills West Condominium Association, Inc.
This study guide provides a review of the Administrative Law Judge Decision in case number 20F-H2019033-REL, concerning a dispute between a homeowner and a condominium association. It includes a quiz with an answer key, essay questions for deeper analysis, and a glossary of key terms found in the source document.
——————————————————————————–
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 sentences each, based on the provided source document.
1. Who were the primary parties in the legal dispute, and what were their roles?
2. What specific violations did the Petitioner, Donna M. Bischoff, allege against the Respondent?
3. Why was the 2019 yearly meeting for the Country Hills West Condominium Association repeatedly rescheduled?
4. What was the Respondent’s position on the validity of write-in ballots for the November 20, 2019, election?
5. What information did the Petitioner request from the October 2018 election, and what was the initial response?
6. What is the definition of “quorum” according to the association’s Bylaws, and why was it significant in this case?
7. What is the legal standard of proof the Petitioner was required to meet in this hearing?
8. According to the decision, how did the Respondent violate A.R.S. § 33-1248(B) regarding association meetings?
9. According to the decision, how did the Respondent violate A.R.S. § 33-1250(C) regarding election materials?
10. What were the key components of the final Order issued by the Administrative Law Judge?
——————————————————————————–
Answer Key
1. The primary parties were Donna M. Bischoff, the Petitioner, and the Country Hills West Condominium Association, Inc., the Respondent. The Petitioner is the homeowner who filed the complaint, and the Respondent is the homeowners association accused of violations.
2. The Petitioner alleged violations of Arizona Revised Statutes (A.R.S.) § 33-1250(C) and § 33-1248(B), as well as Article 3, Section 2 of the association’s Bylaws. These allegations related to the handling of yearly meetings and elections.
3. The 2019 yearly meeting was initially scheduled for November 20, 2019, but was rescheduled three times, ultimately taking place in January 2020. The first cancellation was because some ballots contained write-in candidates, which the board deemed prohibited.
4. The Respondent’s representative, Doug Meyer, testified that members were informed that write-in ballots were not valid for the November 20, 2019, election. He stated that any ballots with write-in candidates would have been thrown out.
5. The Petitioner requested to see the election results from the October 2018 election, specifically wanting to know which units voted. While she was eventually given the voting tallies, the Respondent did not initially provide the requested results.
6. Quorum is defined in Article 4, Section 3 of the Bylaws. It was significant because the Respondent’s president, Mr. Meyer, acknowledged that the association had not achieved a quorum for its meetings in the last 20 years, and thus no election occurred at the October 18, 2018, meeting.
7. The Petitioner had the burden of proof to establish the alleged violations by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that a contention is more probably true than not.
8. The Respondent violated A.R.S. § 33-1248(B) by failing to hold a required yearly meeting within the calendar year of 2019. The evidence showed that the meeting scheduled for 2019 was postponed until January 2020.
9. The Respondent violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with all required election materials from the 2018 election. While vote tallies were eventually provided, the statute requires that ballots, envelopes, and related materials be retained and made available for inspection for at least one year.
10. The Administrative Law Judge’s Order upheld the Petition on all issues, deemed the Petitioner the prevailing party, and required the Respondent to supply the relevant documents within 10 days. The Order also mandated that the Respondent reimburse the Petitioner’s filing fee of $1,500.00 within 30 days.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for longer, more analytical responses. Use the information presented in the source document to construct a comprehensive argument for each prompt.
1. Analyze the Respondent’s handling of the write-in ballot issue for the 2019 election. Discuss the legal basis (or lack thereof) for their actions as presented in the hearing, and explain why the Administrative Law Judge ultimately ruled that their prohibition of these ballots was a violation of the Bylaws.
2. Explain the concept of “quorum” as it relates to this case. How did the association’s failure to achieve a quorum for 20 years impact its governance, specifically regarding the 2018 meeting and the Respondent’s obligation to produce election records?
3. Describe in detail the specific violations of the Arizona Revised Statutes (A.R.S.) that the Country Hills West Condominium Association was found to have committed. For each statute (A.R.S. § 33-1248(B) and A.R.S. § 33-1250(C)), detail the legal requirement and explain how the Respondent’s actions failed to meet that standard.
4. Discuss the legal standard of “preponderance of the evidence.” Using testimony and evidence presented by both the Petitioner and the Respondent, explain how the Petitioner successfully met this burden of proof for her allegations.
5. Outline the final Order issued by the Administrative Law Judge. Beyond the simple outcome, explain the significance of each component of the order, including the validation of the petition, the designation of a “prevailing party,” the directive to supply documents, and the financial remedy awarded.
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Glossary of Key Terms
Definition
Administrative Law Judge
An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions and orders. In this case, Antara Nath Rivera.
Arizona Department of Real Estate (Department)
The state agency with which a homeowner or planned community organization can file a petition for a hearing concerning violations of community documents or statutes.
Arizona Revised Statutes (A.R.S.)
The collection of laws enacted by the Arizona state legislature. The specific statutes cited were A.R.S. §§ 33-1250(C) and 33-1248(B).
Bylaws
The rules and regulations that govern the internal operations of an organization, such as a homeowners association. In this case, the Bylaws of Country Hills West Association, Inc. were a key document.
Homeowners Association (HOA)
An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents.
Office of Administrative Hearings
The state agency where petitions filed with the Department of Real Estate are heard before an Administrative Law Judge.
Petitioner
The party who files a petition or brings a legal action against another party. In this case, Donna M. Bischoff.
Preponderance of the evidence
The standard of proof in this civil administrative case. It is met when the evidence presented is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”
Quorum
The minimum number of members of an assembly or society that must be present at any of its meetings to make the proceedings of that meeting valid. The Respondent had not achieved quorum for 20 years.
Respondent
The party against whom a petition is filed or a legal action is brought. In this case, Country Hills West Condominium Association, Inc.
Blog Post – 20F-H2019033-REL
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20F-H2019033-REL
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This source is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between Donna M. Bischoff, the Petitioner, and Country Hills West Condominium Association, Inc., the Respondent. The document details the hearing held on March 10, 2020, where the Petitioner alleged the Condominium Association violated Arizona Revised Statutes (A.R.S.) and the association’s Bylaws. Specifically, the Petitioner claimed violations related to the failure to hold a required yearly meeting in 2019, the failure to provide election materials for inspection, and the improper prohibition of write-in ballots where the Bylaws were silent. The Administrative Law Judge ultimately upheld the Petition on all issues, finding the Respondent in violation, and ordered the Association to provide the requested documents and pay the Petitioner’s $1,500.00 filing fee.
What were the specific legal violations found against the Condominium Association regarding meetings and documents?
How did the lack of clarity in the Bylaws regarding write-in ballots impact the association’s actions?
What was the ultimate outcome of this administrative hearing, including the ordered remedies for the petitioner?
Based on 1 source
Case Participants
Petitioner Side
Donna M Bischoff(petitioner) Appeared on her own behalf
Respondent Side
Doug Meyer(president, director, witness) Country Hills West Condominium Association, Inc. Appeared and testified on behalf of Respondent
Neutral Parties
Antara Nath Rivera(ALJ) OAH
Judy Lowe(commissioner) Arizona Department of Real Estate Decision transmitted electronically to Commissioner
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
19F-H1918010-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2019-05-10
Administrative Law Judge
Tammy L. Eigenheer
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
John A Sellers
Counsel
—
Respondent
Rancho Madera Condominium Association
Counsel
Edward D. O'Brien, Edith I. Rudder
Alleged Violations
CC&Rs § 3.10, 3.10.2, 3.10.4
Outcome Summary
The Administrative Law Judge dismissed the petition following a rehearing, concluding that the Petitioner failed to meet the burden of proof by establishing that the Respondent HOA violated its CC&Rs. The governing documents grant the HOA the right, but not the obligation, to enforce maintenance duties specifically assigned to Unit Owners concerning the drainage easement.
Why this result: Petitioner failed to establish by a preponderance of the evidence that the Respondent violated the CC&Rs because the HOA was found to have a right to enforce maintenance of the drainage easement, but not a mandatory obligation to do so under the terms of the CC&Rs.
Key Issues & Findings
HOA failure to enforce unit owner maintenance obligations regarding stormwater drainage easement
Petitioner alleged that the Respondent HOA violated the CC&Rs by failing to enforce unit owner responsibility to keep the stormwater drainage area free of obstructions like vegetation and fencing materials, potentially causing a risk of flooding to his unit.
Orders: The petition was dismissed. The Administrative Law Judge determined that the CC&Rs assign Unit Owners the responsibility to clear the drainage area and grant the HOA the right, but not an obligation, to enforce this maintenance.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 32-2199.01
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
Dispute Analysis: Sellers vs. Rancho Madera Condominium Association
Executive Summary
This briefing document synthesizes the legal proceedings and outcomes of a dispute between homeowner John A. Sellers (Petitioner) and the Rancho Madera Condominium Association (Respondent). The core of the conflict was Mr. Sellers’ allegation that the Association violated its Covenants, Conditions, and Restrictions (CC&Rs) by failing to compel other homeowners to remove vegetation and fencing from a common stormwater drainage channel, thereby creating a flood risk to his property, Unit 12.
The case was adjudicated by the Arizona Office of Administrative Hearings (OAH) in a process that included an initial hearing, a decision, a granted request for rehearing, and a final binding decision. In both instances, the Administrative Law Judge ruled against the Petitioner.
The initial decision, issued in December 2018, concluded that Mr. Sellers failed to provide sufficient evidence that the materials in the channel actually impeded water flow or posed an unreasonable flood risk. The ruling highlighted that the channel had functioned as intended since 2012 without any flooding incidents. Following a rehearing in April 2019, the second and final decision in May 2019 reinforced this conclusion. It further clarified a crucial distinction in the CC&Rs: while the Association possesses the right to enforce maintenance rules upon homeowners, the governing documents do not impose an explicit obligation to do so proactively before any damage has occurred. The responsibility for maintaining the drainage area rests with the individual unit owners, and the Association’s primary duty is to repair damages after the fact, billing the responsible owner. The petition was ultimately dismissed.
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I. Case Overview
This case documents a formal complaint filed by a homeowner against his condominium association, which was resolved through the Arizona Department of Real Estate and the Office of Administrative Hearings.
• Case Number: 19F-H1918010-REL
• Petitioner: John A. Sellers, owner of Unit 12 in Rancho Madera
• Respondent: Rancho Madera Condominium Association, a 46-unit development in Cave Creek, Arizona.
• Venue: Arizona Office of Administrative Hearings (OAH)
Key Chronology of Events
Aug 23, 2018
Petitioner files a single-issue petition with the Arizona Department of Real Estate.
Oct 23, 2018
An OAH order vacates the initial hearing after the Petitioner indicates a wish to withdraw the petition.
Nov 5, 2018
The first evidentiary hearing convenes, indicating the withdrawal was rescinded.
Dec 12, 2018
The first evidentiary hearing concludes.
Dec 26, 2018
Administrative Law Judge Diane Mihalsky issues a decision denying the petition.
Feb 1, 2019
Petitioner files a Rehearing Request with the Commissioner of the Department of Real Estate.
Feb 22, 2019
The Commissioner grants the Rehearing Request.
Apr 15, 2019
The rehearing convenes and concludes before Administrative Law Judge Tammy L. Eigenheer.
May 7, 2019
OAH issues an order striking a supplemental, post-hearing filing by the Petitioner from the record.
May 10, 2019
Judge Eigenheer issues a final Administrative Law Judge Decision, again dismissing the petition.
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II. Petitioner’s Core Allegation
Mr. Sellers’ petition was based on a single issue: the alleged violation of Section 3.10 of the Association’s CC&Rs.
• The Violation: The Petitioner claimed the Association failed in its duty to require owners of “Drainage Easement Units” to remove obstructions from a shared stormwater channel.
• The Obstructions: The materials of concern included “large succulents, shrubs, and cacti” growing in the drainage area’s rip-rap, as well as chicken wire that at least one owner had installed to contain a pet.
• The Perceived Risk: Mr. Sellers testified that these items “could catch storm debris and cause the drainage channel to become clogged,” leading to a risk of flooding for his Unit 12. He submitted videos of heavy rains and flooding in other parts of Cave Creek as evidence of the potential danger.
• Financial Impact Claim: The Petitioner was undergoing a contentious divorce, and Unit 12, as a community asset, was for sale under a court order. He asserted that the unresolved drainage issue and his required disclosure of the dispute had reduced the unit’s market price by $40,000.
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III. Respondent’s Position and Actions
The Rancho Madera Condominium Association, represented by its President, Jeffrey Kaplan, denied any violation of the CC&Rs and presented a multi-faceted defense.
• Lack of Historical Precedent: Mr. Kaplan, an owner since 2012, testified that water had never entered the property from the east, and Unit 12 had never sustained any damage from flooding. This held true even during a “100-year storm in 2014.” After a significant rainstorm in August 2018, he personally inspected the drainage easement and “did not see any water in it.”
• Origin of Vegetation: Mr. Kaplan stated that the builder had originally planted the vegetation in the drainage easement that was shown in the Petitioner’s photographic evidence.
• Proactive Communication: To address the Petitioner’s concerns, the Board instructed its management company to act. Letters were sent to the relevant homeowners on April 18, 2018, and July 19, 2018, reminding them of their responsibility to keep the easement free of obstructions.
• Jurisdictional Confirmation: Mr. Kaplan contacted officials from the Maricopa County Flood Control District and the Town of Cave Creek. Both agencies confirmed the drainage area was not on any official floodplain map, and therefore, the Association was “solely responsible” for its maintenance and enforcement.
• Contradictory Evidence: The Association submitted a June 22, 2018 email from the Petitioner’s wife, Debborah Sellers, which directly contradicted the Petitioner’s claims. She wrote, “There has never been any issue with the storm drain behind our house and it is not a major disclosure item… Stop making something out of nothing.” She also referred to his claims as “nonsense.”
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IV. Analysis of Governing CC&Rs
The dispute centered on the interpretation of specific sections of the Rancho Madera CC&Rs. The judges in both hearings analyzed these sections to determine the respective duties of the homeowners and the Association.
Section
Provision Summary
Key Language
Establishes a perpetual “Drainage Easement” over the eastern five feet of Units 9 through 18 for stormwater conveyance.
“…for the purpose of constructing, maintaining, repairing and replacing a drainage channel…”
3.10.2
Assigns the primary maintenance duty to the individual unit owners within the easement area.
“Each Unit Owner of a Drainage Easement Unit shall keep his Drainage Easement Area Free of weeds and other debris so that the stormwater can flow freely… No Improvement… shall be… allowed to grow… that may… impede the flow of water…”
3.10.4
Defines the Association’s role in the event of damage resulting from a unit owner’s failure to maintain the easement.
“If the failure of one Unit Owner to maintain his Drainage Easement Area… results in damage… the Association shall repair or replace such damage… and the cost… shall be paid by the Unit Owner that caused the damage…”
13.1.1
Grants the Association the power to enforce the CC&Rs.
“The Association shall have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants…”
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V. Administrative Law Judge Decisions and Rationale
The Petitioner’s case was heard twice and denied both times, with the second decision providing a definitive interpretation of the Association’s duties under the CC&Rs.
Initial Decision (December 26, 2018)
• Presiding Judge: Diane Mihalsky
• Conclusion: The Petitioner failed to meet his burden of proof “by a preponderance of the evidence.”
• Rationale: The judge found a critical failure in the Petitioner’s evidence. While he successfully “established that there are some plants and chicken wire in the stormwater drainage canal,” he “did not establish that the plants or chicken wire impede the flow of water.” The Respondent, in contrast, successfully established that the channel had always “functioned as intended” and that “Unit 12 has never flooded.” The judge concluded there was “no unreasonable risk that Unit 12 will flood.”
• Order: The petition was denied.
Rehearing and Final Decision (May 10, 2019)
• Presiding Judge: Tammy L. Eigenheer
• Context: The rehearing was granted based on the Petitioner’s claims of procedural irregularities and legal errors in the first hearing.
• Petitioner’s Refined Argument: During the rehearing, the Petitioner argued that the Association’s right to enforce the CC&Rs (under Section 13.1.1) becomes an obligation when safety and property values are affected.
• Conclusion: The petition was dismissed.
• Rationale: The final decision hinged on a strict interpretation of the CC&Rs. The judge determined that the documents create a clear hierarchy of responsibility:
1. Unit Owners: Bear the primary responsibility for keeping the easement clear (Section 3.10.2).
2. The Association: Has a responsibility to act only after damage occurs due to an owner’s failure, at which point it must repair the damage and bill the responsible owner (Section 3.10.4).
• Final Legal Interpretation: The judge concluded, “While Respondent has the right to enforce the requirements that the Unit Owners keep the Drainage Easement Area clear, nothing in the CC&Rs provides that Respondent has an obligation to do so.” The petition was dismissed because the Petitioner could not prove the Association had violated any actual obligation laid out in the governing documents. This decision was issued as final and binding on the parties.
Study Guide – 19F-H1918010-REL-RHG
Study Guide: Case No. 19F-H1918010-REL, Sellers v. Rancho Madera Condominium Association
This guide provides a detailed review of the administrative legal proceedings between Petitioner John A. Sellers and Respondent Rancho Madera Condominium Association. It is designed to assess comprehension of the case’s facts, legal arguments, and procedural history.
Short-Answer Quiz
Answer each question in 2-3 sentences based on the information provided in the source documents.
1. What was the central allegation John A. Sellers filed against the Rancho Madera Condominium Association on August 23, 2018?
2. Identify the specific sections of the Covenants, Conditions, and Restrictions (CC&Rs) that were central to the dispute.
3. Who is responsible for maintaining the Drainage Easement Area according to CC&R § 3.10.2?
4. What actions did the Association’s management company take in response to the Petitioner’s concerns?
5. What was the testimony of Jeffrey Kaplan, the Association’s President, regarding the history of flooding at Rancho Madera?
6. Why did the Commissioner of the Department of Real Estate grant the Petitioner’s request for a rehearing?
7. What was the procedural outcome of Petitioner Sellers’ attempt to submit supplemental arguments after the April 15, 2019, rehearing?
8. How did Administrative Law Judge Tammy L. Eigenheer distinguish between a “right to enforce” and an “obligation to enforce” in her final decision?
9. What evidence did the Petitioner present to support his claim that the drainage channel was at risk of clogging?
10. What was the final ruling in the Administrative Law Judge Decision dated May 10, 2019?
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Answer Key
1. Petitioner John A. Sellers alleged that the Association had violated its CC&Rs, specifically § 3.10, by failing to require condominium owners to remove vegetation and fencing materials from the stormwater channel. Sellers claimed this failure created a risk of flooding for his unit.
2. The central CC&R sections were § 3.10, which establishes the stormwater drainage easement; § 3.10.2, which outlines the maintenance responsibilities of Unit Owners; § 3.10.4, which details the Association’s role in repairing damages; and § 13.1.1, which grants the Association the right to enforce the CC&Rs.
3. According to CC&R § 3.10.2, each individual Unit Owner of a Drainage Easement Unit is responsible for keeping their respective Drainage Easement Area free of weeds and other debris. The text explicitly states that no improvements, including plants, should be allowed that might impede the flow of water.
4. To address the Petitioner’s concerns, the Association’s management company sent letters to the owners of the Drainage Easement Units on April 18, 2018, and July 19, 2018. These letters reminded the owners of their responsibility to keep the easement area clear of obstructions and debris.
5. Jeffrey Kaplan testified that he bought one of the first units in 2012 and that water has never entered Rancho Madera from the east. He specifically noted that no flooding occurred even during the 100-year storm in 2014, and that after a significant rainstorm in August 2018, he inspected the easement and saw no water in it.
6. The Commissioner granted the Rehearing Request “for the reasons outlined in the Petitioners’ Rehearing Request.” The request itself alleged irregularity in the proceedings, newly discovered evidence, errors in the admission of evidence, and that the original decision was arbitrary, capricious, or contrary to law.
7. After the rehearing concluded, the Petitioner submitted supplemental authority and argument. The Respondent argued this filing was untimely, and Administrative Law Judge Tammy L. Eigenheer ordered the filing to be stricken from the record and closed the record on May 7, 2019.
8. Judge Eigenheer’s decision concluded that while the Association has the right to enforce the CC&Rs under § 13.1.1, nothing in the documents creates an obligation for it to proactively do so regarding maintenance. The only obligation specified is to repair damage after it occurs, with the cost being billed to the responsible unit owner.
9. The Petitioner provided photographs showing large succulents, shrubs, and cacti growing in the rip rap of the Drainage Easement Area. He also showed at least one instance where chicken wire had been placed across the channel to contain a pet, testifying that these items could catch storm debris and cause a clog.
10. The final ruling, issued on May 10, 2019, was that the Petitioner failed to establish by a preponderance of the evidence that the Respondent violated Section 3.10 of the CC&Rs. Therefore, the petition was dismissed, and no action was required of the Respondent.
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Essay Questions
Construct detailed essay responses to the following prompts, drawing exclusively from the provided source documents to support your analysis.
1. Trace the complete procedural history of case No. 19F-H1918010-REL from the initial petition to the final order. Detail the key dates, presiding judges, significant filings, and the outcome of each stage of the proceedings.
2. Analyze the legal reasoning used by the Administrative Law Judges in both the initial decision (December 26, 2018) and the rehearing decision (May 10, 2019). Compare and contrast their interpretations of the CC&Rs and the standard of “preponderance of the evidence.”
3. Evaluate the evidence and arguments presented by both the Petitioner, John A. Sellers, and the Respondent, represented by Jeffrey Kaplan. What were the strengths and weaknesses of each party’s case as detailed in the hearing summaries?
4. Discuss the roles and responsibilities of the Unit Owners versus the Condominium Association as defined by CC&R Sections 3.10, 3.10.2, 3.10.4, and 13.1.1. How did the interpretation of these sections ultimately determine the outcome of the case?
5. Examine the external factors mentioned in the hearings, such as the Petitioner’s divorce, the market value of his unit, and communications with the Maricopa County Flood Control District. How did the Administrative Law Judge address these issues and determine their relevance (or irrelevance) to the central legal question?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings at the Office of Administrative Hearings. In this case, Diane Mihalsky presided over the initial hearing and Tammy L. Eigenheer presided over the rehearing.
CC&Rs (Covenants, Conditions, and Restrictions)
The governing legal documents that set forth the rules for the Rancho Madera condominium development.
Common Elements
Areas within the condominium development designed for common use, such as areas for stormwater conveyance mentioned in the CC&Rs.
Drainage Easement Area
The eastern five feet of Units 9 through 18, over which a perpetual non-exclusive drainage easement was created for the purpose of stormwater drainage.
Drainage Improvements
The drainage channel constructed within the Drainage Easement Area, which may consist of decomposed granite, rip rap (large stones), or concrete.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona that conducts evidentiary hearings for other state agencies, such as the Department of Real Estate.
Petitioner
The party who files a petition initiating a legal case. In this matter, the Petitioner is John A. Sellers.
Preponderance of the Evidence
The standard of proof in this administrative hearing. It is defined as evidence that is sufficient to incline a fair and impartial mind to one side of an issue rather than the other, making the contention more probably true than not.
Respondent
The party against whom a petition is filed. In this matter, the Respondent is the Rancho Madera Condominium Association.
Restrictive Covenant
A provision in a deed or other legal document that limits the use of a property. The CC&Rs in this case are a form of restrictive covenant.
Unit Owner
An individual who owns a condominium unit within the development and is a member of the owners’ association.
Blog Post – 19F-H1918010-REL-RHG
I Read an Entire HOA Lawsuit. Here Are 4 Shocking Lessons About Power, Rules, and Reality.
The Anatomy of a Neighborhood War
Living under a Homeowner’s Association (HOA) often means navigating a complex world of rules, regulations, and neighborhood politics. For most, disagreements are minor annoyances. But sometimes, a seemingly small issue can escalate into a full-blown legal war.
This is the story of one homeowner’s single-minded crusade against his HOA over a stormwater drainage channel he believed was a serious flooding risk. After filing a formal petition, the dispute escalated into a multi-stage legal battle that spanned nearly a year. The official court documents reveal that even after a judge ruled decisively against him, the homeowner doubled down, demanding a rare rehearing.
A deep dive into this protracted case reveals a fascinating and cautionary tale. The legal reasoning that ultimately settled the matter highlights several surprising lessons that apply to anyone living in a planned community.
1. Proving a Rule Was Broken Isn’t the Same as Proving Harm
The initial hearing, held before Administrative Law Judge Diane Mihalsky in late 2018, centered on a seemingly straightforward argument from the petitioner, John Sellers. He pointed out that his neighbors had placed plants—including large succulents, shrubs, and cacti—as well as chicken wire in a stormwater drainage channel. This, he argued, was a clear violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs), which stated that no improvement “shall be constructed, installed or allowed to grow… that may… impede the flow of water.”
But in her December 26, 2018 decision, the judge ruled against him. While Sellers successfully proved the obstructions existed, he failed to meet the legal burden of proof that they actually “impede the flow of water.” His claim was defeated by testimony from the HOA President, Jeffrey Kaplan, who stated that the unit had never sustained any flood damage, not even during a “100-year storm in 2014.”
The lesson from this first round is stark: in this legal context, simply pointing out a technical rule break was not enough. The petitioner had to prove that the violation was causing a tangible, negative impact. Without evidence of actual harm or impeded water flow, the theoretical risk was insufficient to win the case.
2. An HOA’s “Right” to Enforce Is Not an “Obligation”
After losing the first round on a question of evidence, Sellers’ argument evolved. He requested a rehearing, which was granted, and the case landed before a new judge, Tammy L. Eigenheer, in the spring of 2019. This shifted the legal focus from physical proof of impeded water flow to a more fundamental question of the HOA’s duties.
Sellers argued that because safety and property values were at stake, the association had a duty to enforce the CC&Rs and compel his neighbors to clear the drainage channel. He contended that at a certain point, an organization’s “right” to act becomes an “obligation.”
The judge’s final decision on May 10, 2019, was clear, absolute, and is where the most powerful lesson of the entire case lies.
“While Respondent has the right to enforce the requirements that the Unit Owners keep the Drainage Easement Area clear, nothing in the CC&Rs provides that Respondent has an obligation to do so.”
This distinction is critical for any homeowner. An HOA can possess the legal power to act but may not be legally compelled to use it. According to the judge’s interpretation, the governing documents placed the responsibility for keeping the channel clear on the individual unit owners. The association’s only stated obligation was to repair damage after it happened, with the cost being billed back to the responsible party.
3. Outside Conflicts Can Cast a Long Shadow
Legal disputes are rarely just about the facts of the case. During the initial hearing, it was revealed that the petitioner was going through a “contentious divorce” and that the condo unit at the center of the dispute was a community asset being sold by the court.
The most dramatic evidence, however, came from an email written by the petitioner’s own wife, Debborah Sellers. The email, submitted as evidence by the HOA, directly undermined his claims about the severity of the drainage issue.
“There has never been any issue with the storm drain behind our house and it is not a major disclosure item… Stop making something out of nothing. AND I HOPE YOU AREN[’]T FREAKING POTENTIAL BUYERS AND OTHER REALTORS WITH THIS NONSENSE.”
In her decision, Judge Mihalsky officially stated that the divorce was “not relevant” to the technical question of whether the HOA violated the CC&Rs. However, she immediately added that the situation “cast a long shadow over his administrative complaint,” suggesting that the personal context, and especially the damaging email, severely harmed the petitioner’s credibility.
4. Writing Letters Isn’t the Same as Being Heard
Throughout the dispute, the petitioner made his concerns known by writing “many letters” to the HOA president. He was persistent in his written communications, attempting to force the issue onto the association’s radar.
Yet, this effort was contrasted with a notable lack of direct participation. According to the testimony of HOA President Kaplan during the first hearing, Sellers “never attended any of Respondent’s noticed Board meetings” where his concerns could have been discussed among the board members.
The HOA’s response to his letters was limited; it sent two general reminder letters to all residents in the affected area but did not take direct enforcement action against any specific homeowner. The practical takeaway is that to effect change or be taken seriously in an HOA dispute, visibility and participation are critical. Writing letters is a start, but attending official meetings to present a case in person can be a more effective strategy for ensuring an issue is formally addressed.
A Cautionary Tale for Any Homeowner
What began as a seemingly straightforward complaint about drainage and rule enforcement devolved into a legal battle that consumed nearly a year, involving two multi-day hearings before two different administrative law judges. The petitioner lost his case on the evidence, then lost it again on the law.
It serves as a potent cautionary tale, demonstrating that in the world of HOA disputes, the obvious path is not always the winning one. It leaves every homeowner with a final, thought-provoking question to ponder: When you see a problem in your community, how do you decide if a fight is worth the cost—not just in money, but in time, credibility, and peace?
Case Participants
Petitioner Side
John A Sellers(petitioner) Appeared on his own behalf
Respondent Side
Edward D. O'Brien(respondent attorney) Carpenter, Hazlewood, Delgado & Bolen, PLC/LLP
Edith I. Rudder(respondent attorney) Carpenter, Hazlewood, Delgado & Bolen, PLC/LLP
Jeffrey Kaplan(board president/witness) Rancho Madera Condominium Association President of Respondent, testified
Neutral Parties
Diane Mihalsky(ALJ) Office of Administrative Hearings ALJ for initial proceedings
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings ALJ for rehearing proceedings
Judy Lowe(commissioner (ADRE)) Arizona Department of Real Estate
LDettorre(ADRE staff) Arizona Department of Real Estate Recipient of official orders
AHansen(ADRE staff) Arizona Department of Real Estate Recipient of official orders
djones(ADRE staff) Arizona Department of Real Estate Recipient of official orders
DGardner(ADRE staff) Arizona Department of Real Estate Recipient of official orders
ncano(ADRE staff) Arizona Department of Real Estate Recipient of official orders
c. serrano(clerk) Office of Administrative Hearings Transmittal/filing clerk
F. Del Sol(clerk) Office of Administrative Hearings Transmittal/filing clerk
Other Participants
Debborah Sellers(witness/spouse) Petitioner's wife, testimony via email submitted by Respondent
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
19F-H1918010-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2019-05-10
Administrative Law Judge
Tammy L. Eigenheer
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
John A Sellers
Counsel
—
Respondent
Rancho Madera Condominium Association
Counsel
Edward D. O'Brien, Edith I. Rudder
Alleged Violations
CC&Rs § 3.10, 3.10.2, 3.10.4
Outcome Summary
The Administrative Law Judge dismissed the petition following a rehearing, concluding that the Petitioner failed to meet the burden of proof by establishing that the Respondent HOA violated its CC&Rs. The governing documents grant the HOA the right, but not the obligation, to enforce maintenance duties specifically assigned to Unit Owners concerning the drainage easement.
Why this result: Petitioner failed to establish by a preponderance of the evidence that the Respondent violated the CC&Rs because the HOA was found to have a right to enforce maintenance of the drainage easement, but not a mandatory obligation to do so under the terms of the CC&Rs.
Key Issues & Findings
HOA failure to enforce unit owner maintenance obligations regarding stormwater drainage easement
Petitioner alleged that the Respondent HOA violated the CC&Rs by failing to enforce unit owner responsibility to keep the stormwater drainage area free of obstructions like vegetation and fencing materials, potentially causing a risk of flooding to his unit.
Orders: The petition was dismissed. The Administrative Law Judge determined that the CC&Rs assign Unit Owners the responsibility to clear the drainage area and grant the HOA the right, but not an obligation, to enforce this maintenance.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 32-2199.01
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
Dispute Analysis: Sellers vs. Rancho Madera Condominium Association
Executive Summary
This briefing document synthesizes the legal proceedings and outcomes of a dispute between homeowner John A. Sellers (Petitioner) and the Rancho Madera Condominium Association (Respondent). The core of the conflict was Mr. Sellers’ allegation that the Association violated its Covenants, Conditions, and Restrictions (CC&Rs) by failing to compel other homeowners to remove vegetation and fencing from a common stormwater drainage channel, thereby creating a flood risk to his property, Unit 12.
The case was adjudicated by the Arizona Office of Administrative Hearings (OAH) in a process that included an initial hearing, a decision, a granted request for rehearing, and a final binding decision. In both instances, the Administrative Law Judge ruled against the Petitioner.
The initial decision, issued in December 2018, concluded that Mr. Sellers failed to provide sufficient evidence that the materials in the channel actually impeded water flow or posed an unreasonable flood risk. The ruling highlighted that the channel had functioned as intended since 2012 without any flooding incidents. Following a rehearing in April 2019, the second and final decision in May 2019 reinforced this conclusion. It further clarified a crucial distinction in the CC&Rs: while the Association possesses the right to enforce maintenance rules upon homeowners, the governing documents do not impose an explicit obligation to do so proactively before any damage has occurred. The responsibility for maintaining the drainage area rests with the individual unit owners, and the Association’s primary duty is to repair damages after the fact, billing the responsible owner. The petition was ultimately dismissed.
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I. Case Overview
This case documents a formal complaint filed by a homeowner against his condominium association, which was resolved through the Arizona Department of Real Estate and the Office of Administrative Hearings.
• Case Number: 19F-H1918010-REL
• Petitioner: John A. Sellers, owner of Unit 12 in Rancho Madera
• Respondent: Rancho Madera Condominium Association, a 46-unit development in Cave Creek, Arizona.
• Venue: Arizona Office of Administrative Hearings (OAH)
Key Chronology of Events
Aug 23, 2018
Petitioner files a single-issue petition with the Arizona Department of Real Estate.
Oct 23, 2018
An OAH order vacates the initial hearing after the Petitioner indicates a wish to withdraw the petition.
Nov 5, 2018
The first evidentiary hearing convenes, indicating the withdrawal was rescinded.
Dec 12, 2018
The first evidentiary hearing concludes.
Dec 26, 2018
Administrative Law Judge Diane Mihalsky issues a decision denying the petition.
Feb 1, 2019
Petitioner files a Rehearing Request with the Commissioner of the Department of Real Estate.
Feb 22, 2019
The Commissioner grants the Rehearing Request.
Apr 15, 2019
The rehearing convenes and concludes before Administrative Law Judge Tammy L. Eigenheer.
May 7, 2019
OAH issues an order striking a supplemental, post-hearing filing by the Petitioner from the record.
May 10, 2019
Judge Eigenheer issues a final Administrative Law Judge Decision, again dismissing the petition.
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II. Petitioner’s Core Allegation
Mr. Sellers’ petition was based on a single issue: the alleged violation of Section 3.10 of the Association’s CC&Rs.
• The Violation: The Petitioner claimed the Association failed in its duty to require owners of “Drainage Easement Units” to remove obstructions from a shared stormwater channel.
• The Obstructions: The materials of concern included “large succulents, shrubs, and cacti” growing in the drainage area’s rip-rap, as well as chicken wire that at least one owner had installed to contain a pet.
• The Perceived Risk: Mr. Sellers testified that these items “could catch storm debris and cause the drainage channel to become clogged,” leading to a risk of flooding for his Unit 12. He submitted videos of heavy rains and flooding in other parts of Cave Creek as evidence of the potential danger.
• Financial Impact Claim: The Petitioner was undergoing a contentious divorce, and Unit 12, as a community asset, was for sale under a court order. He asserted that the unresolved drainage issue and his required disclosure of the dispute had reduced the unit’s market price by $40,000.
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III. Respondent’s Position and Actions
The Rancho Madera Condominium Association, represented by its President, Jeffrey Kaplan, denied any violation of the CC&Rs and presented a multi-faceted defense.
• Lack of Historical Precedent: Mr. Kaplan, an owner since 2012, testified that water had never entered the property from the east, and Unit 12 had never sustained any damage from flooding. This held true even during a “100-year storm in 2014.” After a significant rainstorm in August 2018, he personally inspected the drainage easement and “did not see any water in it.”
• Origin of Vegetation: Mr. Kaplan stated that the builder had originally planted the vegetation in the drainage easement that was shown in the Petitioner’s photographic evidence.
• Proactive Communication: To address the Petitioner’s concerns, the Board instructed its management company to act. Letters were sent to the relevant homeowners on April 18, 2018, and July 19, 2018, reminding them of their responsibility to keep the easement free of obstructions.
• Jurisdictional Confirmation: Mr. Kaplan contacted officials from the Maricopa County Flood Control District and the Town of Cave Creek. Both agencies confirmed the drainage area was not on any official floodplain map, and therefore, the Association was “solely responsible” for its maintenance and enforcement.
• Contradictory Evidence: The Association submitted a June 22, 2018 email from the Petitioner’s wife, Debborah Sellers, which directly contradicted the Petitioner’s claims. She wrote, “There has never been any issue with the storm drain behind our house and it is not a major disclosure item… Stop making something out of nothing.” She also referred to his claims as “nonsense.”
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IV. Analysis of Governing CC&Rs
The dispute centered on the interpretation of specific sections of the Rancho Madera CC&Rs. The judges in both hearings analyzed these sections to determine the respective duties of the homeowners and the Association.
Section
Provision Summary
Key Language
Establishes a perpetual “Drainage Easement” over the eastern five feet of Units 9 through 18 for stormwater conveyance.
“…for the purpose of constructing, maintaining, repairing and replacing a drainage channel…”
3.10.2
Assigns the primary maintenance duty to the individual unit owners within the easement area.
“Each Unit Owner of a Drainage Easement Unit shall keep his Drainage Easement Area Free of weeds and other debris so that the stormwater can flow freely… No Improvement… shall be… allowed to grow… that may… impede the flow of water…”
3.10.4
Defines the Association’s role in the event of damage resulting from a unit owner’s failure to maintain the easement.
“If the failure of one Unit Owner to maintain his Drainage Easement Area… results in damage… the Association shall repair or replace such damage… and the cost… shall be paid by the Unit Owner that caused the damage…”
13.1.1
Grants the Association the power to enforce the CC&Rs.
“The Association shall have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants…”
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V. Administrative Law Judge Decisions and Rationale
The Petitioner’s case was heard twice and denied both times, with the second decision providing a definitive interpretation of the Association’s duties under the CC&Rs.
Initial Decision (December 26, 2018)
• Presiding Judge: Diane Mihalsky
• Conclusion: The Petitioner failed to meet his burden of proof “by a preponderance of the evidence.”
• Rationale: The judge found a critical failure in the Petitioner’s evidence. While he successfully “established that there are some plants and chicken wire in the stormwater drainage canal,” he “did not establish that the plants or chicken wire impede the flow of water.” The Respondent, in contrast, successfully established that the channel had always “functioned as intended” and that “Unit 12 has never flooded.” The judge concluded there was “no unreasonable risk that Unit 12 will flood.”
• Order: The petition was denied.
Rehearing and Final Decision (May 10, 2019)
• Presiding Judge: Tammy L. Eigenheer
• Context: The rehearing was granted based on the Petitioner’s claims of procedural irregularities and legal errors in the first hearing.
• Petitioner’s Refined Argument: During the rehearing, the Petitioner argued that the Association’s right to enforce the CC&Rs (under Section 13.1.1) becomes an obligation when safety and property values are affected.
• Conclusion: The petition was dismissed.
• Rationale: The final decision hinged on a strict interpretation of the CC&Rs. The judge determined that the documents create a clear hierarchy of responsibility:
1. Unit Owners: Bear the primary responsibility for keeping the easement clear (Section 3.10.2).
2. The Association: Has a responsibility to act only after damage occurs due to an owner’s failure, at which point it must repair the damage and bill the responsible owner (Section 3.10.4).
• Final Legal Interpretation: The judge concluded, “While Respondent has the right to enforce the requirements that the Unit Owners keep the Drainage Easement Area clear, nothing in the CC&Rs provides that Respondent has an obligation to do so.” The petition was dismissed because the Petitioner could not prove the Association had violated any actual obligation laid out in the governing documents. This decision was issued as final and binding on the parties.
Study Guide – 19F-H1918010-REL-RHG
Study Guide: Case No. 19F-H1918010-REL, Sellers v. Rancho Madera Condominium Association
This guide provides a detailed review of the administrative legal proceedings between Petitioner John A. Sellers and Respondent Rancho Madera Condominium Association. It is designed to assess comprehension of the case’s facts, legal arguments, and procedural history.
Short-Answer Quiz
Answer each question in 2-3 sentences based on the information provided in the source documents.
1. What was the central allegation John A. Sellers filed against the Rancho Madera Condominium Association on August 23, 2018?
2. Identify the specific sections of the Covenants, Conditions, and Restrictions (CC&Rs) that were central to the dispute.
3. Who is responsible for maintaining the Drainage Easement Area according to CC&R § 3.10.2?
4. What actions did the Association’s management company take in response to the Petitioner’s concerns?
5. What was the testimony of Jeffrey Kaplan, the Association’s President, regarding the history of flooding at Rancho Madera?
6. Why did the Commissioner of the Department of Real Estate grant the Petitioner’s request for a rehearing?
7. What was the procedural outcome of Petitioner Sellers’ attempt to submit supplemental arguments after the April 15, 2019, rehearing?
8. How did Administrative Law Judge Tammy L. Eigenheer distinguish between a “right to enforce” and an “obligation to enforce” in her final decision?
9. What evidence did the Petitioner present to support his claim that the drainage channel was at risk of clogging?
10. What was the final ruling in the Administrative Law Judge Decision dated May 10, 2019?
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Answer Key
1. Petitioner John A. Sellers alleged that the Association had violated its CC&Rs, specifically § 3.10, by failing to require condominium owners to remove vegetation and fencing materials from the stormwater channel. Sellers claimed this failure created a risk of flooding for his unit.
2. The central CC&R sections were § 3.10, which establishes the stormwater drainage easement; § 3.10.2, which outlines the maintenance responsibilities of Unit Owners; § 3.10.4, which details the Association’s role in repairing damages; and § 13.1.1, which grants the Association the right to enforce the CC&Rs.
3. According to CC&R § 3.10.2, each individual Unit Owner of a Drainage Easement Unit is responsible for keeping their respective Drainage Easement Area free of weeds and other debris. The text explicitly states that no improvements, including plants, should be allowed that might impede the flow of water.
4. To address the Petitioner’s concerns, the Association’s management company sent letters to the owners of the Drainage Easement Units on April 18, 2018, and July 19, 2018. These letters reminded the owners of their responsibility to keep the easement area clear of obstructions and debris.
5. Jeffrey Kaplan testified that he bought one of the first units in 2012 and that water has never entered Rancho Madera from the east. He specifically noted that no flooding occurred even during the 100-year storm in 2014, and that after a significant rainstorm in August 2018, he inspected the easement and saw no water in it.
6. The Commissioner granted the Rehearing Request “for the reasons outlined in the Petitioners’ Rehearing Request.” The request itself alleged irregularity in the proceedings, newly discovered evidence, errors in the admission of evidence, and that the original decision was arbitrary, capricious, or contrary to law.
7. After the rehearing concluded, the Petitioner submitted supplemental authority and argument. The Respondent argued this filing was untimely, and Administrative Law Judge Tammy L. Eigenheer ordered the filing to be stricken from the record and closed the record on May 7, 2019.
8. Judge Eigenheer’s decision concluded that while the Association has the right to enforce the CC&Rs under § 13.1.1, nothing in the documents creates an obligation for it to proactively do so regarding maintenance. The only obligation specified is to repair damage after it occurs, with the cost being billed to the responsible unit owner.
9. The Petitioner provided photographs showing large succulents, shrubs, and cacti growing in the rip rap of the Drainage Easement Area. He also showed at least one instance where chicken wire had been placed across the channel to contain a pet, testifying that these items could catch storm debris and cause a clog.
10. The final ruling, issued on May 10, 2019, was that the Petitioner failed to establish by a preponderance of the evidence that the Respondent violated Section 3.10 of the CC&Rs. Therefore, the petition was dismissed, and no action was required of the Respondent.
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Essay Questions
Construct detailed essay responses to the following prompts, drawing exclusively from the provided source documents to support your analysis.
1. Trace the complete procedural history of case No. 19F-H1918010-REL from the initial petition to the final order. Detail the key dates, presiding judges, significant filings, and the outcome of each stage of the proceedings.
2. Analyze the legal reasoning used by the Administrative Law Judges in both the initial decision (December 26, 2018) and the rehearing decision (May 10, 2019). Compare and contrast their interpretations of the CC&Rs and the standard of “preponderance of the evidence.”
3. Evaluate the evidence and arguments presented by both the Petitioner, John A. Sellers, and the Respondent, represented by Jeffrey Kaplan. What were the strengths and weaknesses of each party’s case as detailed in the hearing summaries?
4. Discuss the roles and responsibilities of the Unit Owners versus the Condominium Association as defined by CC&R Sections 3.10, 3.10.2, 3.10.4, and 13.1.1. How did the interpretation of these sections ultimately determine the outcome of the case?
5. Examine the external factors mentioned in the hearings, such as the Petitioner’s divorce, the market value of his unit, and communications with the Maricopa County Flood Control District. How did the Administrative Law Judge address these issues and determine their relevance (or irrelevance) to the central legal question?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings at the Office of Administrative Hearings. In this case, Diane Mihalsky presided over the initial hearing and Tammy L. Eigenheer presided over the rehearing.
CC&Rs (Covenants, Conditions, and Restrictions)
The governing legal documents that set forth the rules for the Rancho Madera condominium development.
Common Elements
Areas within the condominium development designed for common use, such as areas for stormwater conveyance mentioned in the CC&Rs.
Drainage Easement Area
The eastern five feet of Units 9 through 18, over which a perpetual non-exclusive drainage easement was created for the purpose of stormwater drainage.
Drainage Improvements
The drainage channel constructed within the Drainage Easement Area, which may consist of decomposed granite, rip rap (large stones), or concrete.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona that conducts evidentiary hearings for other state agencies, such as the Department of Real Estate.
Petitioner
The party who files a petition initiating a legal case. In this matter, the Petitioner is John A. Sellers.
Preponderance of the Evidence
The standard of proof in this administrative hearing. It is defined as evidence that is sufficient to incline a fair and impartial mind to one side of an issue rather than the other, making the contention more probably true than not.
Respondent
The party against whom a petition is filed. In this matter, the Respondent is the Rancho Madera Condominium Association.
Restrictive Covenant
A provision in a deed or other legal document that limits the use of a property. The CC&Rs in this case are a form of restrictive covenant.
Unit Owner
An individual who owns a condominium unit within the development and is a member of the owners’ association.
Blog Post – 19F-H1918010-REL-RHG
I Read an Entire HOA Lawsuit. Here Are 4 Shocking Lessons About Power, Rules, and Reality.
The Anatomy of a Neighborhood War
Living under a Homeowner’s Association (HOA) often means navigating a complex world of rules, regulations, and neighborhood politics. For most, disagreements are minor annoyances. But sometimes, a seemingly small issue can escalate into a full-blown legal war.
This is the story of one homeowner’s single-minded crusade against his HOA over a stormwater drainage channel he believed was a serious flooding risk. After filing a formal petition, the dispute escalated into a multi-stage legal battle that spanned nearly a year. The official court documents reveal that even after a judge ruled decisively against him, the homeowner doubled down, demanding a rare rehearing.
A deep dive into this protracted case reveals a fascinating and cautionary tale. The legal reasoning that ultimately settled the matter highlights several surprising lessons that apply to anyone living in a planned community.
1. Proving a Rule Was Broken Isn’t the Same as Proving Harm
The initial hearing, held before Administrative Law Judge Diane Mihalsky in late 2018, centered on a seemingly straightforward argument from the petitioner, John Sellers. He pointed out that his neighbors had placed plants—including large succulents, shrubs, and cacti—as well as chicken wire in a stormwater drainage channel. This, he argued, was a clear violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs), which stated that no improvement “shall be constructed, installed or allowed to grow… that may… impede the flow of water.”
But in her December 26, 2018 decision, the judge ruled against him. While Sellers successfully proved the obstructions existed, he failed to meet the legal burden of proof that they actually “impede the flow of water.” His claim was defeated by testimony from the HOA President, Jeffrey Kaplan, who stated that the unit had never sustained any flood damage, not even during a “100-year storm in 2014.”
The lesson from this first round is stark: in this legal context, simply pointing out a technical rule break was not enough. The petitioner had to prove that the violation was causing a tangible, negative impact. Without evidence of actual harm or impeded water flow, the theoretical risk was insufficient to win the case.
2. An HOA’s “Right” to Enforce Is Not an “Obligation”
After losing the first round on a question of evidence, Sellers’ argument evolved. He requested a rehearing, which was granted, and the case landed before a new judge, Tammy L. Eigenheer, in the spring of 2019. This shifted the legal focus from physical proof of impeded water flow to a more fundamental question of the HOA’s duties.
Sellers argued that because safety and property values were at stake, the association had a duty to enforce the CC&Rs and compel his neighbors to clear the drainage channel. He contended that at a certain point, an organization’s “right” to act becomes an “obligation.”
The judge’s final decision on May 10, 2019, was clear, absolute, and is where the most powerful lesson of the entire case lies.
“While Respondent has the right to enforce the requirements that the Unit Owners keep the Drainage Easement Area clear, nothing in the CC&Rs provides that Respondent has an obligation to do so.”
This distinction is critical for any homeowner. An HOA can possess the legal power to act but may not be legally compelled to use it. According to the judge’s interpretation, the governing documents placed the responsibility for keeping the channel clear on the individual unit owners. The association’s only stated obligation was to repair damage after it happened, with the cost being billed back to the responsible party.
3. Outside Conflicts Can Cast a Long Shadow
Legal disputes are rarely just about the facts of the case. During the initial hearing, it was revealed that the petitioner was going through a “contentious divorce” and that the condo unit at the center of the dispute was a community asset being sold by the court.
The most dramatic evidence, however, came from an email written by the petitioner’s own wife, Debborah Sellers. The email, submitted as evidence by the HOA, directly undermined his claims about the severity of the drainage issue.
“There has never been any issue with the storm drain behind our house and it is not a major disclosure item… Stop making something out of nothing. AND I HOPE YOU AREN[’]T FREAKING POTENTIAL BUYERS AND OTHER REALTORS WITH THIS NONSENSE.”
In her decision, Judge Mihalsky officially stated that the divorce was “not relevant” to the technical question of whether the HOA violated the CC&Rs. However, she immediately added that the situation “cast a long shadow over his administrative complaint,” suggesting that the personal context, and especially the damaging email, severely harmed the petitioner’s credibility.
4. Writing Letters Isn’t the Same as Being Heard
Throughout the dispute, the petitioner made his concerns known by writing “many letters” to the HOA president. He was persistent in his written communications, attempting to force the issue onto the association’s radar.
Yet, this effort was contrasted with a notable lack of direct participation. According to the testimony of HOA President Kaplan during the first hearing, Sellers “never attended any of Respondent’s noticed Board meetings” where his concerns could have been discussed among the board members.
The HOA’s response to his letters was limited; it sent two general reminder letters to all residents in the affected area but did not take direct enforcement action against any specific homeowner. The practical takeaway is that to effect change or be taken seriously in an HOA dispute, visibility and participation are critical. Writing letters is a start, but attending official meetings to present a case in person can be a more effective strategy for ensuring an issue is formally addressed.
A Cautionary Tale for Any Homeowner
What began as a seemingly straightforward complaint about drainage and rule enforcement devolved into a legal battle that consumed nearly a year, involving two multi-day hearings before two different administrative law judges. The petitioner lost his case on the evidence, then lost it again on the law.
It serves as a potent cautionary tale, demonstrating that in the world of HOA disputes, the obvious path is not always the winning one. It leaves every homeowner with a final, thought-provoking question to ponder: When you see a problem in your community, how do you decide if a fight is worth the cost—not just in money, but in time, credibility, and peace?
Case Participants
Petitioner Side
John A Sellers(petitioner) Appeared on his own behalf
Respondent Side
Edward D. O'Brien(respondent attorney) Carpenter, Hazlewood, Delgado & Bolen, PLC/LLP
Edith I. Rudder(respondent attorney) Carpenter, Hazlewood, Delgado & Bolen, PLC/LLP
Jeffrey Kaplan(board president/witness) Rancho Madera Condominium Association President of Respondent, testified
Neutral Parties
Diane Mihalsky(ALJ) Office of Administrative Hearings ALJ for initial proceedings
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings ALJ for rehearing proceedings
Judy Lowe(commissioner (ADRE)) Arizona Department of Real Estate
LDettorre(ADRE staff) Arizona Department of Real Estate Recipient of official orders
AHansen(ADRE staff) Arizona Department of Real Estate Recipient of official orders
djones(ADRE staff) Arizona Department of Real Estate Recipient of official orders
DGardner(ADRE staff) Arizona Department of Real Estate Recipient of official orders
ncano(ADRE staff) Arizona Department of Real Estate Recipient of official orders
c. serrano(clerk) Office of Administrative Hearings Transmittal/filing clerk
F. Del Sol(clerk) Office of Administrative Hearings Transmittal/filing clerk
Other Participants
Debborah Sellers(witness/spouse) Petitioner's wife, testimony via email submitted by Respondent
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
19F-H1918019-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2019-04-22
Administrative Law Judge
Velva Moses-Thompson
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
William P. Lee
Counsel
—
Respondent
Greenlaw Townhouses Unit Two
Counsel
Timothy D. Butterfield, Esq.
Alleged Violations
A.R.S. §§ 33-1803 and 1809; CC&Rs Amendments 1, 2, and 3; Greenlaw Rules and Regulations
Outcome Summary
The Administrative Law Judge denied the petition, finding that the Petitioner failed to establish by a preponderance of the evidence that the HOA violated the cited governing documents (CC&Rs/Rules) or state statutes (A.R.S. §§ 33-1803 and 1809) by banning street parking and contracting for vehicle booting/towing.
Why this result: Petitioner failed to meet the burden of proof regarding violations of CC&Rs Amendments 1, 2, and 3, the Rules and Regulations, and A.R.S. §§ 33-1803 and 1809. The ALJ found the July 2018 revised Rules, which banned parking, were controlling.
Key Issues & Findings
Violation regarding banning parking and use of towing/booting company.
Petitioner alleged the HOA improperly banned street parking and contracted with a towing/booting company, arguing this violated specific CC&R amendments, the Rules and Regulations, and A.R.S. §§ 33-1803 and 1809. He also claimed the 2018 revised Rules were invalid due to improper electronic notice instead of personal delivery or mail.
Briefing Document: Lee v. Greenlaw Townhouses HOA Parking Dispute
Executive Summary
This document synthesizes the findings from two administrative law judge decisions concerning a dispute between homeowner William P. Lee and the Greenlaw Townhouses Unit Two Homeowners Association (“Greenlaw”). The core of the dispute was Greenlaw’s 2018 implementation of a complete ban on street parking within the community and its subsequent contract with a towing company to “boot” vehicles in violation.
Mr. Lee’s petition, filed on September 12, 2018, alleged that this parking ban violated specific amendments to the association’s Covenants, Conditions, and Restrictions (CC&Rs) and was enacted through an invalid revision of the community’s Rules and Regulations.
Following an initial hearing on December 13, 2018, and a subsequent rehearing on April 1, 2019, the Administrative Law Judge (ALJ) conclusively denied Mr. Lee’s petition. The final decision, issued on April 22, 2019, determined that Mr. Lee failed to meet his burden of proof. The ALJ found that the May 2018 revised Rules and Regulations, which explicitly ban all street parking, were the controlling authority. Furthermore, the decision established that these rules do not conflict with the CC&R amendments, as the amendments only prohibit parking in specific, limited scenarios (e.g., fire lanes, snow removal) and do not grant a general right to park on association streets.
Case Overview
Case Name
William P. Lee v. Greenlaw Townhouses Unit Two Homeowners Association
Case Number
19F-H1918019-REL
Jurisdiction
Arizona Office of Administrative Hearings (referred by the Department of Real Estate)
Adjudicator
Administrative Law Judge Velva Moses-Thompson
Petitioner
William P. Lee
Respondent
Greenlaw Townhouses Unit Two Homeowners Association (“Greenlaw”)
Key Dates
– Petition Filed: September 12, 2018 – Initial Hearing: December 13, 2018 – Rehearing: April 1, 2019 – Final Decision: April 22, 2019
Core Allegation
The central issue, as defined in the Notice of Hearing, was Mr. Lee’s single-issue petition alleging that Greenlaw “violated Community Document CC&Rs amendments 1, 2, & 3 and Association Rules and Regulations… when it banned all parking on the association streets and contracted with a towing service to boot vehicles.”
Analysis of Governing Documents
The case revolved around the interpretation of and interplay between Greenlaw’s CC&Rs, its Rules and Regulations, and its Bylaws.
Covenants, Conditions, and Restrictions (CC&Rs)
• Association Authority: Section (I)(b) of the CC&Rs grants Greenlaw ownership of the common areas, which include the streets in question (Eva, Heidi, and Jeffrey Loops). It specifies that the “maintenance and use shall be controlled by the Association.”
• Parking Amendments: Amendments 1, 2, and 3 were central to Mr. Lee’s argument. These amendments add specific parking prohibitions to the CC&Rs under Article II, PERMITTED USES.
Amendment
Provision
Amendment #1
Prohibits parking in designated fire lanes, which are to be marked with signs and red-painted curbs after consultation with the Flagstaff Fire Marshal.
Amendment #2
Prohibits residents or visitors from parking on association roads during periods of snow removal. Violators may be towed at the vehicle owner’s expense.
Amendment #3
Prohibits parking vehicles at the curb side in an obvious state of disrepair for more than 72 hours. Such vehicles are considered abandoned and may be towed.
Rules and Regulations
• 2003 Revised Rules and Regulations: Mr. Lee contended that this was the controlling document and that it allowed for parking on association streets. He argued that Greenlaw’s booting of vehicles in 2017 was a violation of these rules.
• May 2018 Revised Rules and Regulations: Greenlaw asserted that this was the new, controlling document, effective July 2018. Section 8 of these rules institutes a complete ban on street parking:
Association Bylaws (1986)
• Notice Requirement: Mr. Lee cited Article V, Section 1 of the Bylaws, which states that notices to lot owners “shall be in writing and delivered personally or mailed to the directors or lot owners at their addresses appearing on the books of the corporation.” This formed the basis of his argument that the email distribution of the 2018 rules was improper.
Key Arguments Presented
Petitioner (William P. Lee)
• Violation of CC&Rs: The general parking ban enacted in the 2018 Rules contradicted the CC&R amendments, which only banned parking in specific situations.
• Invalidity of 2018 Rules: The May 2018 Rules and Regulations were invalid because Greenlaw failed to provide proper notice of the revision as required by the 1986 Bylaws, instead sending an email which he contended was insufficient and unclear.
• Controlling Document: The 2003 Rules, which he claimed permitted street parking, should be considered the controlling authority.
• Improper Motivation: The parking ban was enacted solely to appease a board member, Barbara, who did not want cars parked behind her property.
• Evidence of Enforcement: Mr. Lee testified that he observed a jeep being booted and that the Greenlaw manager’s response to his inquiry confirmed the association’s policy.
Respondent (Greenlaw HOA)
• Authority Over Common Areas: The CC&Rs grant Greenlaw the authority to control the use of association streets.
• Validity of 2018 Rules: The May 2018 Rules and Regulations were properly adopted and represent the current, controlling regulations.
• No Conflict with CC&Rs: The CC&R amendments do not authorize parking; they are a list of specific prohibitions. A general ban on parking does not conflict with these specific restrictions.
• Notice Sufficiency: Greenlaw argued that the Bylaw’s requirement for personal or postal mail delivery only applies to notices mandated by statute or the CC&Rs, not to amendments to the Rules and Regulations. Mr. Lee did, in fact, receive the revised rules via email on July 6, 2018.
• Cure of Prior Violations: Any alleged violation of the prior (2003) rules was rendered moot and “cured” by the valid enactment of the May 2018 revised rules.
Administrative Law Judge’s Rulings and Rationale
The ALJ’s decisions in both the initial hearing and the rehearing were consistent, leading to the denial of Mr. Lee’s petition.
• Burden of Proof: The ALJ established that Mr. Lee, as the petitioner, bore the burden of proving his claims by a “preponderance of the evidence.” In both decisions, the ALJ concluded that Mr. Lee failed to meet this standard. A preponderance of the evidence is defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
• Controlling Authority: The “weight of the evidence presented at hearing” showed that the May 2018 revised Rules and Regulations were the controlling rules at the time the petition was filed. Mr. Lee failed to establish that the 2003 Rules were still in effect.
• Interpretation of CC&Rs: The ALJ found the restrictive covenants in Amendments 1, 2, and 3 to be unambiguous. The ruling states, “Amendments 1, 2, and 3 of the Greenlaw CC&Rs do not allow parking on the streets, but rather, provide specific scenarios in which parking on the streets is banned.” Therefore, Greenlaw’s decision to ban all street parking did not violate these amendments.
• Lack of Evidence for Harm: The ALJ noted that Mr. Lee “did not even allege that Greenlaw booted or towed one of his vehicles.” Furthermore, regarding the booted jeep he observed, “there was no evidence provided that the Greenlaw manager stated that Greenlaw was responsible for booting the jeep. Moreover, Mr. Lee did not know who owned the jeep, nor who was responsible for booting the jeep.”
Final Disposition
Petition Denied: The final order, issued April 22, 2019, following the rehearing, states: “IT IS ORDERED that Petitioners’ petition is denied.”
The decision concluded that Mr. Lee failed to establish by a preponderance of the evidence that Greenlaw violated its CC&Rs or its Rules and Regulations when it banned parking and contracted with a towing company. This order is final and binding on the parties, with any further appeal requiring judicial review in superior court.
Study Guide – 19F-H1918019-REL-RHG
Study Guide: Lee v. Greenlaw Townhouses Unit Two HOA
This study guide provides a review of the administrative legal case between Petitioner William P. Lee and Respondent Greenlaw Townhouses Unit Two Homeowners Association, as detailed in the Administrative Law Judge Decisions No. 19F-H1918019-REL and No. 19F-H1918019-REL-RHG.
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Short-Answer Quiz
Instructions: Answer the following questions in 2-3 sentences based on the information provided in the case documents.
1. Who were the primary parties in this case, and what was the central dispute?
2. What was Petitioner William P. Lee’s main argument regarding the association’s Covenants, Conditions, and Restrictions (CC&Rs)?
3. On what grounds did the Greenlaw HOA claim it had the authority to ban all parking on its streets?
4. What three specific parking prohibitions were explicitly listed in Amendments 1, 2, and 3 of the Greenlaw CC&Rs?
5. What was the significance of the May 2018 revised Rules and Regulations in the judge’s final decisions?
6. How did Mr. Lee challenge the validity of the revised 2018 Rules and Regulations during the rehearing?
7. What legal standard of proof was required for Mr. Lee’s petition to succeed, and did the judge find that he met it?
8. According to the case findings, what evidence did Mr. Lee present to prove that Greenlaw was responsible for booting or towing member vehicles?
9. What was Greenlaw’s defense against the claim that it failed to provide proper notice of the new rules?
10. What was the final outcome of both the initial hearing on December 13, 2018, and the rehearing on April 1, 2019?
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Answer Key
1. The primary parties were Petitioner William P. Lee, a townhouse owner, and Respondent Greenlaw Townhouses Unit Two Homeowners Association. The central dispute was Mr. Lee’s allegation that Greenlaw’s ban on all street parking and its contract with a towing company to “boot” vehicles violated the community’s governing documents.
2. Mr. Lee argued that because CC&R Amendments 1, 2, and 3 only banned parking in specific scenarios (fire lanes, snow removal, abandoned vehicles), they implicitly permitted parking at all other times. He contended that a total ban therefore violated these amendments.
3. The Greenlaw HOA argued that Section (I)(b) of its CC&Rs grants it control over the maintenance and use of common areas, which include the association’s streets. They contended this authority was sufficient to ban parking and contract with a towing company.
4. The three amendments prohibited parking in designated fire lanes, on subdivision roads during periods of snow removal, and for vehicles parked at curbside in an obvious state of disrepair for more than 72 hours.
5. The May 2018 revised Rules and Regulations explicitly banned parking on any association street at any time. The judge found these to be the controlling rules, superseding any previous versions, and that they “cured” any purported violations that may have occurred under older rules.
6. During the rehearing, Mr. Lee argued that the 2018 rules were invalid because Greenlaw failed to provide proper notice. He contended that the association’s Bylaws required notice to be delivered personally or by postal mail, not by email as was done on July 6, 2018.
7. Mr. Lee was required to prove his case by a “preponderance of the evidence.” The Administrative Law Judge concluded in both decisions that Mr. Lee failed to meet this burden of proof.
8. Mr. Lee testified that he observed a jeep that had been booted but provided no evidence that Greenlaw was responsible for booting it or any other vehicles belonging to members. The judge found that he did not establish that Greenlaw had booted or towed any vehicles.
9. Greenlaw argued that the Bylaw’s requirement for notice by mail or personal delivery only applied to notices required by statute or the CC&Rs. The association contended it was not required by law or its CC&Rs to provide notice of an amendment to its Rules and Regulations in that specific manner.
10. The final outcome of both hearings was a denial of Mr. Lee’s petition. The Administrative Law Judge ordered in both the December 31, 2018 decision and the April 22, 2019 decision that the petition be denied because Mr. Lee failed to prove Greenlaw violated its CC&Rs or Rules and Regulations.
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Essay Questions
Instructions: Consider the following questions for a deeper analysis of the case. Develop an essay-format response for each, drawing evidence and examples from the case documents.
1. Analyze the legal reasoning of the Administrative Law Judge in determining that the CC&R amendments did not grant an affirmative right to park. How did the judge’s interpretation of “restrictive covenants” shape the outcome?
2. Discuss the concept of “burden of proof” as it applied to William P. Lee’s petition. Using specific examples from the hearings, explain why the judge concluded he failed to meet the “preponderance of the evidence” standard.
3. Trace the evolution of Mr. Lee’s arguments from the initial petition to the rehearing. How did his focus shift, particularly regarding the notification method for the revised Rules and Regulations, and what impact did this shift have on the proceedings?
4. Examine the conflicting interpretations of Greenlaw’s Bylaws regarding the proper method for notifying homeowners of changes. Evaluate the arguments made by both Mr. Lee and Greenlaw on this point and discuss which interpretation the judge implicitly supported.
5. The judge in the initial hearing noted that Greenlaw “has in effect cured any purported previous violation through the enactment of the May 2018 Revised Rules and Regulations.” Discuss the legal implications of this finding for homeowners’ associations and their ability to amend rules to address ongoing disputes.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings at government agencies. In this case, Velva Moses-Thompson of the Office of Administrative Hearings.
Answer (Legal)
A formal written response filed by the respondent to a petition, addressing the allegations made.
Bylaws
The formal rules governing the internal management of an organization, such as a homeowners’ association. Greenlaw’s Bylaws were recorded on June 16, 1986.
CC&Rs (Covenants, Conditions, and Restrictions)
A set of rules established by a developer or homeowners’ association that govern a planned community. All owners are legally bound by these rules.
Common Area
Property within a planned community that is owned by the homeowners’ association for the benefit and use of all lot owners. In this case, the streets (Eva, Heidi, and Jeffrey Loops) are considered common areas.
Department
Refers to the Arizona Department of Real Estate, the state agency authorized to receive and decide on petitions from HOA members.
Evidentiary Hearing
A formal proceeding where parties present evidence (such as testimony and exhibits) before a judge to resolve a factual dispute.
Homeowners’ Association (HOA)
An organization in a subdivision, planned community, or condominium development that makes and enforces rules for the properties and their residents.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona where administrative law judges conduct evidentiary hearings for other state agencies.
Petitioner
The party who files a petition initiating a legal action. In this case, William P. Lee.
Petition
A formal written request to a court or administrative body, asking for a specific action or decision on a matter.
Preponderance of the Evidence
The standard of proof in most civil cases, meaning the evidence must show that a claim is more likely to be true than not true. This was the burden of proof placed on Mr. Lee.
Rehearing
A second hearing of a case to allow for reconsideration of the initial decision, often based on new evidence or arguments.
Respondent
The party against whom a petition is filed. In this case, Greenlaw Townhouses Unit Two Homeowners Association.
Restrictive Covenant
A provision in a deed or community document that limits the use of the property. The principle is that such covenants are enforced to give effect to the intent of the parties.
Rules and Regulations
A set of operational rules created by an HOA’s board that provide specific details on how to follow the broader principles outlined in the CC&Rs and Bylaws.
Blog Post – 19F-H1918019-REL-RHG
5 Surprising Truths About HOA Power: Lessons from a Homeowner’s Losing Battle Over Parking
For many homeowners, the relationship with their Homeowners Association (HOA) is a delicate balance, and nowhere is this more apparent than with parking rules. A single violation notice can escalate into a years-long conflict. But what happens when a homeowner, convinced the HOA has overstepped its authority, decides to fight back?
William P. Lee believed his HOA’s governing documents were his shield. The court, however, ruled they were a blank check for the board’s authority. Mr. Lee took his HOA to court over a newly enacted, total ban on street parking, contending the rule was not only unreasonable but enacted merely to appease a board member who didn’t want cars parked behind her property. He lost his case, requested a rehearing, and lost again. His determined but ultimately failed battle provides a masterclass in the surprising and often counter-intuitive extent of an HOA’s power, revealing five critical lessons for every homeowner.
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1. What Isn’t Forbidden Can Still Be Banned
Mr. Lee’s primary argument was rooted in the community’s founding documents, the Covenants, Conditions, and Restrictions (CC&Rs). He pointed out that the CC&Rs only prohibited parking in a few specific situations: in designated fire lanes, during snow removal, or for vehicles that were obviously abandoned. By his logic, if parking wasn’t explicitly forbidden at other times, it must be allowed.
The judge’s decision, however, hinged on a critical legal distinction. The ruling concluded that the CC&Rs did not grant an affirmative right to park on the streets; they only listed a few specific prohibitions. This legal gray area gave the HOA Board the authority to create new, more restrictive rules to fill in the gaps.
The Takeaway: This case is a stark warning about “permissive silence.” Homeowners should treat their CC&Rs not as a list of guaranteed rights, but as a minimum set of restrictions. The absence of a specific prohibition does not guarantee a right, and a future board can—and likely will—build upon those foundational rules to enact stricter policies.
2. The Board Can Retroactively ‘Cure’ Its Own Violations
Part of Mr. Lee’s case was that the HOA had been improperly booting vehicles back in 2017, under the old, more permissive rules. He argued that these past actions were a violation, regardless of any later changes.
The judge found that the HOA’s new rule effectively neutralized this argument. The decision explicitly states that even if the association had acted improperly in the past, “Greenlaw has in effect cured any purported previous violation through the enactment of the May 2018 Revised Rules and Regulations.”
The Takeaway: This finding sets a sobering precedent, revealing an HOA’s power to “move the goalposts” retroactively. By codifying its desired policy into a new rule, a board can effectively legitimize its past actions. This makes it incredibly difficult for homeowners to win disputes over actions that, while questionable at the time, are now sanctioned by current regulations.
3. The “Fine Print” Is Now a PDF Attachment
Mr. Lee also argued that the rule change itself was invalid because he was never properly notified. He cited the association’s 1986 Bylaws, which required official notices to be delivered personally or by postal mail.
The court rejected this argument. The HOA successfully contended—and the judge agreed—that the old bylaw for mail delivery was narrow in scope. It only applied to notices that were required to be sent to homeowners under statute or the CC&Rs, and there was no such underlying requirement for a simple rule change. Therefore, the court found that an email sent in early July 2018 with a PDF attachment titled “Greenlaw II Townhomes Rules and Regulations – May 2018.pdf” constituted sufficient legal notice.
The Takeaway: This ruling underscores the shifting legal definition of “notice” in the digital age. It creates a vulnerability for less tech-savvy residents or those simply overwhelmed by digital clutter. A routine email from your HOA can carry the full weight of a formal legal notice, and the excuse “I didn’t see the email” is no longer a valid defense.
4. An HOA Can Ban Parking on Streets It Owns
The new rule implemented by the Greenlaw HOA was absolute. Its language leaves no room for interpretation:
Parking is not allowed on any association street or alleyway at any time. Eva, Heidi and Jeffrey Loops are not city streets. They are owned and maintained solely by the HOA. Under city code, the streets are considered “Private Fire Access Lanes.” Consequently, cars parked in violation may be booted and/or towed by a contracted independent towing company.
The critical factor here is ownership. The streets within the Greenlaw community were not public city streets; they were private property, common areas owned and maintained by the HOA. This distinction gave the board sweeping authority to control them.
The Takeaway: If your community’s streets are private property owned by the HOA, the board’s power to regulate them is immense—far exceeding what would be possible on public roads. As this case demonstrates, that authority can extend to a complete and total ban on all street parking, at any time.
5. Suspicion Isn’t Proof: The High Bar of Evidence
In any legal hearing, the person bringing the complaint has the “burden of proof.” Mr. Lee had to convince the judge that his claims were “more probably true than not,” a standard known as a “preponderance of the evidence.”
He failed to meet this standard. The court decision notes that he “provided no evidence that Greenlaw booted or towed any of the vehicles belonging to Greenlaw members.” While he testified to seeing a booted Jeep, his case unraveled under questioning. When he inquired with the HOA manager, her response was non-committal and did not admit responsibility. In court, Mr. Lee admitted he “did not know who owned the jeep, nor who was responsible for booting the jeep.” Critically, his own vehicle had never been booted or towed.
The Takeaway: There is a vast difference between observing something you believe to be a violation and proving it in a formal hearing. For any homeowner considering legal action, this is a vital lesson. Without documented, concrete evidence—admissions in emails, dated photos, official violation notices, or direct witness testimony—a complaint built on suspicion alone is likely to fail.
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Conclusion: The Vigilant Homeowner
The case of William P. Lee serves as a powerful illustration of the “presumption of board authority” that often prevails in community governance disputes. Courts tend to defer to the board’s interpretation of its own rules and its authority to act, unless there is an explicit, unambiguous violation of the law or the governing documents themselves. His story demonstrates that winning a dispute requires more than a sense of injustice; it demands a deep understanding that an HOA’s power is often broader and more flexible than many residents assume. For the modern homeowner, vigilance is not just a good idea—it is an essential practice.
This homeowner scrutinized the rules and bylaws, yet the board’s power expanded beyond them. Are you prepared for the rules you follow today to change tomorrow?
Case Participants
Petitioner Side
William P. Lee(petitioner) Testified on behalf of himself,
Respondent Side
Mark K. Sahl(respondent attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Appeared on behalf of Respondent
Timothy D. Butterfield(respondent attorney) Appeared on behalf of Respondent for the initial hearing and rehearing,
Barbara(board member) Greenlaw Townhouses Unit Two Homeowners Association Board member who Petitioner alleged influenced policy
Neutral Parties
Velva Moses-Thompson(ALJ) Office of Administrative Hearings Administrative Law Judge for the initial hearing and rehearing,
Judy Lowe(Commissioner) Arizona Department of Real Estate Commissioner of the Arizona Department of Real Estate,
The Administrative Law Judge denied the petition, concluding that the HOA acted in accordance with its governing documents (CC&Rs § 4.1) by imposing uniform assessments. The CC&Rs did not provide an exception for reduced assessments based on an owner's choice of landscaping (rock yard) or refusal of HOA maintenance services.
Why this result: Petitioner failed to meet the burden of proof that the Respondent violated its CC&Rs, as CC&R § 4.1 requires uniform assessment and no provision requires or allows Respondent to assess Petitioner less due to his rock yard and refusal of maintenance.
Key Issues & Findings
HOA Assessment Uniformity Requirement
Petitioner, who had rock landscaping and refused HOA maintenance, alleged the HOA violated CC&Rs by assessing him uniform dues, arguing he should pay less since HOA expenditures on lawn maintenance were substantial and primarily benefited neighbors with grass yards.
Orders: Petitioner's petition is denied.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
CC&Rs § 4.1
CC&Rs § 5.1(a)
A.R.S. § 32-2199(B)
A.R.S. § 33-1803
A.R.S. § 41-1092.07(G)(2)
Powell v. Washburn, 211 Ariz. 553
Vazanno v. Superior Court, 74 Ariz. 369
Analytics Highlights
Topics: HOA Assessment, Uniform Dues, CC&R Enforcement, Landscaping Maintenance
Additional Citations:
A.R.S. § 32-2199(B)
A.R.S. § 33-1803
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
Briefing Document: Stoltenberg v. Rancho Del Oro Homeowners Association
Executive Summary
This document synthesizes the findings from the Administrative Law Judge Decision in case number 19F-H1918038-REL, concerning a dispute between homeowner Michael Stoltenberg and the Rancho Del Oro Homeowners Association (HOA). The core conflict centered on Mr. Stoltenberg’s claim that he should pay lower HOA assessments because his property has rock landscaping, while his neighbors have grass yards requiring more costly maintenance by the HOA.
The Administrative Law Judge ultimately denied the petition. The decision rested on an unambiguous interpretation of the HOA’s Covenants, Conditions, and Restrictions (CC&Rs). The Judge found that the CC&Rs explicitly obligate the HOA to maintain landscaping on all individual lots and, crucially, require assessments to be uniform for all members to cover these “common expenses.” The petitioner’s argument for a reduced assessment was unsupported by any provision in the governing documents. Furthermore, evidence showed that Mr. Stoltenberg had actively refused the HOA access to his property to install a community irrigation system and to perform the very landscaping maintenance that is a central component of the assessments.
Case Overview
• Case Number: 19F-H1918038-REL
• Parties Involved:
◦ Petitioner: Michael Stoltenberg, a homeowner at 11777 E. Calle Gaudi, Rancho Del Oro.
◦ Respondent: Rancho Del Oro Homeowners Association (HOA).
• Hearing Date: March 19, 2019
• Presiding Judge: Diane Mihalsky, Administrative Law Judge
• Core Allegation: On December 29, 2018, the Petitioner filed a petition alleging the HOA violated multiple sections of its CC&Rs (§§ 1.8, 1.9, 2.1, 3.1, 4.1, 4.2, 4.3, 5.1, and 14.2) by levying the same assessment fees on his property as on neighboring properties with grass lawns.
Petitioner’s Position and Evidence (Michael Stoltenberg)
The Petitioner’s case was built on the argument of fairness, contending that his assessment should be lower because his property does not utilize the HOA’s most expensive landscaping services.
• Primary Argument: It is inequitable for the HOA to charge him the same amount as neighbors with grass yards, given that his front yard is rock and does not receive the same level of maintenance.
• Financial Evidence: The Petitioner testified that in 2016, the HOA spent $54,000 on lawn maintenance and landscaping, which constituted 39% of its total budget.
• Refusal of Services: The Petitioner acknowledged that he refused to allow the HOA access to his property for two key purposes:
1. To install irrigation pipes connecting his lot to a new community well.
2. To perform any landscape maintenance on his front yard.
• Justification for Refusal: The Petitioner accused the HOA of previously killing his trees during maintenance activities and stated that he now undertakes all maintenance of his own yard.
Respondent’s Position and Evidence (Rancho Del Oro HOA)
The HOA’s defense was grounded in its adherence to the plain language of its governing documents, arguing that its actions were not only permissible but mandated by the CC&Rs.
• Primary Argument: The HOA is legally bound by its CC&Rs to levy uniform assessments on all members and is simultaneously obligated to maintain the landscaping on every individual lot.
• Key Testimony (Diana Crites, Property Manager):
◦ CC&R § 5.1(a) explicitly requires the HOA to maintain the yards of its members.
◦ CC&R § 4.1 requires all owners to be assessed uniformly, without regard to the type of landscaping they have chosen or whether they permit the HOA to perform its maintenance duties.
◦ The Petitioner’s property is one of eight constructed by a different developer, who did not originally install grass or an irrigation system.
◦ The HOA has since drilled a community well to address water costs and has offered to remove rock and install grass for these properties, an offer the Petitioner could accept.
• Supporting Evidence (Letter from Dawn Simpson, former bookkeeper):
◦ A 2013 HOA project was initiated to install a community well for landscaping and to connect all homes, including the Petitioner’s.
◦ The letter details an incident where the Petitioner “became very heated with [the] contractor” and “declared that no one was to enter his yard for any purpose.”
◦ This action directly halted all construction to connect his property to the irrigation system and ceased all landscaping services provided by the HOA.
Analysis of Governing Documents (CC&Rs)
The judge’s decision centered on the clear, unambiguous language of specific articles within the CC&Rs. The petitioner failed to identify any language that would permit or require a non-uniform assessment.
CC&R Section
Key Language
Implication & Ruling
Article IV, Section 4.1
Assessments “shall be used for the… common benefit… of the Owners” and “shall constitute common expenses for which the apartment owners shall be severally liable in proportion to their respective common interests.”
This establishes the principle of uniform, shared liability for common expenses, regardless of an individual owner’s specific use of a particular service.
Article V, Section 5.1(a)
“The Association shall maintain… landscaping… It shall also include maintenance of the landscaping on individual Lots outside of structures.”
This article imposes a direct obligation on the HOA to maintain all members’ landscaping, not merely an optional service.
Legal Conclusions and Final Order
• Burden of Proof: The decision established that the Petitioner, Mr. Stoltenberg, held the burden to prove by a “preponderance of the evidence” that the HOA had violated its CC&Rs.
• Interpretation of Covenants: In Arizona, unambiguous restrictive covenants are enforced to give effect to the intent of the parties. The judge found the CC&Rs to be unambiguous, requiring a holistic interpretation. The documents clearly mandate that the HOA must maintain all yards and must assess all members equally to fund that maintenance.
• Final Ruling: The Petitioner did not meet his burden of proof. He failed to point to any provision within the CC&Rs that “allows, much less requires, Respondent to assess Petitioner less because he has a rock yard and will not allow Respondent to maintain his yard.”
• Order: The petition was denied. The HOA’s practice of charging uniform assessments was upheld as compliant with its governing documents.
Study Guide – 19F-H1918038-REL
Study Guide: Stoltenberg v. Rancho Del Oro Homeowners Association
This guide is designed to review the key facts, legal arguments, and conclusions presented in the Administrative Law Judge Decision for case number 19F-H1918038-REL, Michael Stoltenberg v. Rancho Del Oro Homeowners Association.
Short-Answer Quiz Questions
Answer the following questions in 2-3 complete sentences, based on the information provided in the case document.
1. Who are the primary parties involved in this case, and what are their respective roles?
2. What was the central allegation in the petition filed by Michael Stoltenberg with the Arizona Department of Real Estate?
3. According to the Petitioner’s testimony, what was the financial basis for his claim of unfair assessment?
4. Describe the history of the water and irrigation system issue at the Petitioner’s property prior to 2013, as detailed in Dawn Simpson’s letter.
5. What action did the Petitioner take during the 2013 well construction project, and what were the consequences of this action?
6. According to Article V, Section 5.1(a) of the CC&Rs, what specific maintenance obligation does the homeowners’ association have regarding individual lots?
7. How did Diana Crites, the HOA’s property manager, justify the uniform assessment for all homeowners based on the CC&Rs?
8. What reason did Ms. Crites provide for why eight units, including the Petitioner’s, were originally landscaped with rock instead of grass?
9. What is the legal standard of proof required in this hearing, and on which party does the burden of proof rest?
10. What was the final order of the Administrative Law Judge, and what was the core legal reasoning for this decision?
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Answer Key
1. The primary parties are Michael Stoltenberg, the “Petitioner,” and the Rancho Del Oro Homeowners Association, the “Respondent.” Mr. Stoltenberg is a homeowner and member of the HOA who filed a complaint against the association. The Respondent is the governing HOA for the Rancho Del Oro community in Yuma, Arizona.
2. The Petitioner alleged that the Respondent violated multiple sections of its Covenants, Conditions, and Restrictions (CC&Rs). His central claim was that it was unfair for the HOA to charge him the same assessment fees as his neighbors because his property has rock landscaping, while his neighbors have grass yards that require more maintenance.
3. The financial basis for his claim was the HOA’s budget. The Petitioner testified that in 2016, the Respondent spent $54,000 on lawn maintenance and landscaping, which accounted for 39% of the total budget.
4. Prior to 2013, the Petitioner made several complaints that his home was not connected to the community water system. The HOA Board’s position was that the Petitioner knew his home was not connected to the system when he purchased it.
5. During the 2013 construction to install a well and connect all homes to an irrigation system, the Petitioner became “very heated” with the contractor. He declared that no one was to enter his yard for any purpose, which halted all construction in his backyard and all landscaping provided by the HOA for his front yard.
6. Section 5.1(a) of the CC&Rs states that the Association’s maintenance duties “shall also include maintenance of the landscaping on individual Lots outside of structures.” This obligates the HOA to maintain landscaping even on privately owned lots.
7. Diana Crites testified that CC&R Section 4.1 requires all owners to be assessed uniformly. She stated this uniformity applies regardless of the type of landscaping an owner has chosen or whether they permit the HOA onto their property to perform maintenance.
8. Ms. Crites testified that the eight units were built by a different developer after the original construction and were not equipped with an irrigation system or grass. She believed rock was used in the front yards of these lots due to the high cost of water, an issue later resolved by the installation of a community well.
9. The legal standard is “a preponderance of the evidence,” which means the evidence must be convincing enough to make the contention more probably true than not. The burden of proof to establish a CC&R violation rests on the Petitioner, Mr. Stoltenberg.
10. The Administrative Law Judge denied the Petitioner’s petition. The reasoning was that the Petitioner failed to bear his burden of proof because he could not point to any provision in the CC&Rs that allows or requires the HOA to assess him less than his neighbors based on his landscaping choice or his refusal to allow maintenance.
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Essay Questions
The following questions are designed for longer-form analysis. Formulate a detailed response for each, citing specific evidence and CC&R provisions from the case document.
1. Analyze the central conflict between the Petitioner’s concept of fairness and the Respondent’s interpretation of the CC&Rs. Use specific clauses from the CC&Rs (e.g., Articles IV and V) to support the analysis of each party’s position.
2. Discuss the significance of the “preponderance of the evidence” standard in this case. How did the evidence presented by both the Petitioner (e.g., budget figures) and the Respondent (e.g., witness testimony and CC&Rs) contribute to the judge’s final decision regarding this standard?
3. Trace the history of the water and irrigation issue at the Petitioner’s property, from his initial complaints to his refusal to allow construction access. How did these past events impact the central issue of the 2019 hearing?
4. Explain the legal principle that “restrictive covenants must be construed as a whole.” How did the Administrative Law Judge apply this principle by referencing both Section 4.1 (Assessments) and Section 5.1(a) (Maintenance) of the CC&Rs to reach her conclusion?
5. Evaluate the actions of the Petitioner, Mr. Stoltenberg. Based on the evidence presented, did his own actions—specifically, denying the HOA access to his property—undermine his legal argument for a reduced assessment? Explain your reasoning using facts from the hearing evidence.
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Glossary
Definition from Source Context
Administrative Law Judge (ALJ)
An official (Diane Mihalsky) who presides over hearings at the Office of Administrative Hearings, an independent state agency, and makes decisions in matters referred by state departments like the Arizona Department of Real Estate.
Assessments
Charges levied by the homeowners’ association on its members. According to CC&R § 4.1, they are used for promoting the recreation, health, safety, and welfare of owners, including property maintenance, and are to be proportioned to each owner’s respective common interests.
Burden of Proof
The obligation of a party in a legal case to establish their claim. In this matter, the Petitioner bears the burden of proof to establish that the Respondent violated its CC&Rs.
Common Area
Defined in CC&R § 1.8 as “those portions of the Project to which title is held by the Association for the common use and enjoyment of the Owners and excepting the individual units.”
Common Expenses
Defined in CC&R § 1.9 as the “actual and estimated expenses of operating the association,” including any reasonable reserves and all sums designated as Common Expense by project documents.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing documents for a planned community that outline the rules, obligations, and rights of the homeowners and the homeowners’ association.
Easements
A right of use over the property of another. CC&R § 2.1 grants every owner a “non-exclusive easement and equitable right of use and enjoyment in, to, and throughout the Common Area.”
Homeowners’ Association (HOA)
The governing body for a planned community (Rancho Del Oro Homeowners Association) whose members are the property owners within that community. It is responsible for managing common areas and enforcing the CC&Rs.
Petitioner
The party who files a petition initiating a legal action. In this case, Michael Stoltenberg, a homeowner in Rancho Del Oro.
Preponderance of the Evidence
The evidentiary standard required to win the case. The source defines it as “such proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with “the most convincing force” that is “sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
Respondent
The party against whom a petition is filed. In this case, the Rancho Del Oro Homeowners Association.
Restrictive Covenant
A provision in a deed or community document that limits the use of the property. The source notes that in Arizona, an unambiguous restrictive covenant is enforced to give effect to the intent of the parties and must be construed as a whole.
Blog Post – 19F-H1918038-REL
He Sued His HOA Over an ‘Unfair’ Fee—The Reason He Lost Is a Warning for Every Homeowner
Introduction: The HOA Fee Frustration
For many homeowners, the monthly or annual bill from the Homeowners Association (HOA) can be a source of constant frustration. It’s easy to look at the line items—landscaping, pool maintenance, common area repairs—and wonder if you’re truly getting your money’s worth, especially when you feel you aren’t using a particular service.
This was exactly the position of Michael Stoltenberg, a homeowner in Arizona who believed he had an open-and-shut case to lower his HOA fees. His argument seemed logical, fair, and simple. But the ultimate ruling in his case, Stoltenberg v. Rancho Del Oro Homeowners Association, reveals some surprising and crucial truths about how HOA rules actually work and serves as a powerful lesson for every person living in a planned community.
Takeaway 1: You Pay for the Service, Even If You Actively Refuse It
Michael Stoltenberg’s argument was straightforward: his front yard was landscaped with rocks, while his neighbors had grass. He pointed out that in 2016, lawn maintenance accounted for a significant 39% of the HOA’s total budget. He argued it was fundamentally unfair for him to pay the same assessment as his neighbors when he wasn’t consuming this costly service.
His sense of unfairness was rooted in the history of the development. His home was one of eight built by a different developer than the rest of the community. Likely due to high water costs at the time, these eight lots were constructed without irrigation systems or grass. From the very beginning, his property was different. This context makes the crucial twist in the case all the more telling. In 2013, the HOA undertook a community-wide project to drill a new well and install an irrigation system, an effort designed to rectify the inconsistency and bring these outlier properties up to the community standard. When the construction reached Stoltenberg’s property, he refused the workers access.
Testimony from the HOA’s former bookkeeper laid this fact bare:
At this time, [Petitioner] declared that no one was to enter his yard for any purpose. This was also to include his front yard. This halted all construction that was currently in place in his back yard, and all landscaping being provided by the HOA for the front yard.
Legally, this transformed the situation. Stoltenberg’s complaint was no longer about a service he didn’t need, but about a service he actively rejected. This case establishes a critical principle: HOA assessments are tied to your property ownership and membership in the community, not your individual consumption of services. By refusing the service, Mr. Stoltenberg did not absolve himself of the cost associated with its availability to the community.
Takeaway 2: “Common Benefit” Isn’t the Same as “Your Personal Benefit”
The legal foundation for the HOA’s position rested in the language of its Covenants, Conditions, and Restrictions (CC&Rs). Specifically, Section 4.1 states that assessments are to be used for the “common benefit, and enjoyment of the Owners.”
In an HOA context, “common benefit” is a broad concept. It means that well-maintained landscaping throughout the entire neighborhood enhances curb appeal, creates a cohesive community aesthetic, and supports the property values of all residents. This includes Mr. Stoltenberg, whose home value is supported by the beautiful, uniform appearance of the neighborhood, regardless of whether his specific yard has grass. It’s the same reason a homeowner without children still pays for the upkeep of a community playground; the amenity benefits the community as a whole.
Further testimony reinforced this point. The HOA’s property manager stated that the association was still willing to remove the rock and install grass on his property, just as they had already done for two other homeowners in a similar situation. The benefit was available to him; he simply continued to refuse it.
Takeaway 3: The Rules Are a Package Deal, Not an A La Carte Menu
Ultimately, the Administrative Law Judge’s role was not to rule on a general sense of fairness but to enforce the community’s governing documents as written. When examined together, two key clauses in the CC&Rs created a contractual vise, leaving the judge with no other legal option. The two clauses created a perfect, inescapable loop.
• Section 5.1(a): This clause states the HOA has an obligation that “shall also include maintenance of the landscaping on individual Lots outside of structures.” The HOA wasn’t just permitted to do the work; it was contractually required to.
• Section 4.1: This clause, which also defines assessments as being for the “common benefit,” requires that they “shall constitute common expenses for which the apartment owners shall be severally liable in proportion to their respective common interests.”
The documents legally obligated the HOA to maintain all yards and to charge every owner the same proportional amount for doing so. The CC&Rs provided no mechanism for a homeowner to opt-out of a service and receive a corresponding discount. The judge’s final ruling was decisive, emphasizing the absolute nature of this contractual obligation:
Because Petitioner has not pointed to any CC&R that allows, much less requires, Respondent to assess Petitioner less because he has a rock yard and will not allow Respondent to maintain his yard, Petitioner has not borne his burden in this matter.
Conclusion: The Contract You Live In
The case of Michael Stoltenberg is a powerful reminder that an HOA’s CC&Rs are not just a set of neighborhood rules; they are restrictive covenants that run with the land. When you buy the property, you are irrevocably buying into the contract that governs it. These documents are designed to prioritize the uniform application of standards for the collective good, and they supersede an individual’s personal preferences or interpretation of what seems “fair.”
This case forces every potential buyer to ask a critical question: Are you simply purchasing a dwelling, or are you prepared to become a party to the binding legal contract that governs the entire community?
Case Participants
Petitioner Side
Michael Stoltenberg(Petitioner)
Respondent Side
Rancho Del Oro Homeowners Association(Respondent Entity) Entity, not human
The Administrative Law Judge denied the petition, concluding that the HOA acted in accordance with its governing documents (CC&Rs § 4.1) by imposing uniform assessments. The CC&Rs did not provide an exception for reduced assessments based on an owner's choice of landscaping (rock yard) or refusal of HOA maintenance services.
Why this result: Petitioner failed to meet the burden of proof that the Respondent violated its CC&Rs, as CC&R § 4.1 requires uniform assessment and no provision requires or allows Respondent to assess Petitioner less due to his rock yard and refusal of maintenance.
Key Issues & Findings
HOA Assessment Uniformity Requirement
Petitioner, who had rock landscaping and refused HOA maintenance, alleged the HOA violated CC&Rs by assessing him uniform dues, arguing he should pay less since HOA expenditures on lawn maintenance were substantial and primarily benefited neighbors with grass yards.
Orders: Petitioner's petition is denied.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
CC&Rs § 4.1
CC&Rs § 5.1(a)
A.R.S. § 32-2199(B)
A.R.S. § 33-1803
A.R.S. § 41-1092.07(G)(2)
Powell v. Washburn, 211 Ariz. 553
Vazanno v. Superior Court, 74 Ariz. 369
Analytics Highlights
Topics: HOA Assessment, Uniform Dues, CC&R Enforcement, Landscaping Maintenance
Additional Citations:
A.R.S. § 32-2199(B)
A.R.S. § 33-1803
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
Briefing Document: Stoltenberg v. Rancho Del Oro Homeowners Association
Executive Summary
This document synthesizes the findings from the Administrative Law Judge Decision in case number 19F-H1918038-REL, concerning a dispute between homeowner Michael Stoltenberg and the Rancho Del Oro Homeowners Association (HOA). The core conflict centered on Mr. Stoltenberg’s claim that he should pay lower HOA assessments because his property has rock landscaping, while his neighbors have grass yards requiring more costly maintenance by the HOA.
The Administrative Law Judge ultimately denied the petition. The decision rested on an unambiguous interpretation of the HOA’s Covenants, Conditions, and Restrictions (CC&Rs). The Judge found that the CC&Rs explicitly obligate the HOA to maintain landscaping on all individual lots and, crucially, require assessments to be uniform for all members to cover these “common expenses.” The petitioner’s argument for a reduced assessment was unsupported by any provision in the governing documents. Furthermore, evidence showed that Mr. Stoltenberg had actively refused the HOA access to his property to install a community irrigation system and to perform the very landscaping maintenance that is a central component of the assessments.
Case Overview
• Case Number: 19F-H1918038-REL
• Parties Involved:
◦ Petitioner: Michael Stoltenberg, a homeowner at 11777 E. Calle Gaudi, Rancho Del Oro.
◦ Respondent: Rancho Del Oro Homeowners Association (HOA).
• Hearing Date: March 19, 2019
• Presiding Judge: Diane Mihalsky, Administrative Law Judge
• Core Allegation: On December 29, 2018, the Petitioner filed a petition alleging the HOA violated multiple sections of its CC&Rs (§§ 1.8, 1.9, 2.1, 3.1, 4.1, 4.2, 4.3, 5.1, and 14.2) by levying the same assessment fees on his property as on neighboring properties with grass lawns.
Petitioner’s Position and Evidence (Michael Stoltenberg)
The Petitioner’s case was built on the argument of fairness, contending that his assessment should be lower because his property does not utilize the HOA’s most expensive landscaping services.
• Primary Argument: It is inequitable for the HOA to charge him the same amount as neighbors with grass yards, given that his front yard is rock and does not receive the same level of maintenance.
• Financial Evidence: The Petitioner testified that in 2016, the HOA spent $54,000 on lawn maintenance and landscaping, which constituted 39% of its total budget.
• Refusal of Services: The Petitioner acknowledged that he refused to allow the HOA access to his property for two key purposes:
1. To install irrigation pipes connecting his lot to a new community well.
2. To perform any landscape maintenance on his front yard.
• Justification for Refusal: The Petitioner accused the HOA of previously killing his trees during maintenance activities and stated that he now undertakes all maintenance of his own yard.
Respondent’s Position and Evidence (Rancho Del Oro HOA)
The HOA’s defense was grounded in its adherence to the plain language of its governing documents, arguing that its actions were not only permissible but mandated by the CC&Rs.
• Primary Argument: The HOA is legally bound by its CC&Rs to levy uniform assessments on all members and is simultaneously obligated to maintain the landscaping on every individual lot.
• Key Testimony (Diana Crites, Property Manager):
◦ CC&R § 5.1(a) explicitly requires the HOA to maintain the yards of its members.
◦ CC&R § 4.1 requires all owners to be assessed uniformly, without regard to the type of landscaping they have chosen or whether they permit the HOA to perform its maintenance duties.
◦ The Petitioner’s property is one of eight constructed by a different developer, who did not originally install grass or an irrigation system.
◦ The HOA has since drilled a community well to address water costs and has offered to remove rock and install grass for these properties, an offer the Petitioner could accept.
• Supporting Evidence (Letter from Dawn Simpson, former bookkeeper):
◦ A 2013 HOA project was initiated to install a community well for landscaping and to connect all homes, including the Petitioner’s.
◦ The letter details an incident where the Petitioner “became very heated with [the] contractor” and “declared that no one was to enter his yard for any purpose.”
◦ This action directly halted all construction to connect his property to the irrigation system and ceased all landscaping services provided by the HOA.
Analysis of Governing Documents (CC&Rs)
The judge’s decision centered on the clear, unambiguous language of specific articles within the CC&Rs. The petitioner failed to identify any language that would permit or require a non-uniform assessment.
CC&R Section
Key Language
Implication & Ruling
Article IV, Section 4.1
Assessments “shall be used for the… common benefit… of the Owners” and “shall constitute common expenses for which the apartment owners shall be severally liable in proportion to their respective common interests.”
This establishes the principle of uniform, shared liability for common expenses, regardless of an individual owner’s specific use of a particular service.
Article V, Section 5.1(a)
“The Association shall maintain… landscaping… It shall also include maintenance of the landscaping on individual Lots outside of structures.”
This article imposes a direct obligation on the HOA to maintain all members’ landscaping, not merely an optional service.
Legal Conclusions and Final Order
• Burden of Proof: The decision established that the Petitioner, Mr. Stoltenberg, held the burden to prove by a “preponderance of the evidence” that the HOA had violated its CC&Rs.
• Interpretation of Covenants: In Arizona, unambiguous restrictive covenants are enforced to give effect to the intent of the parties. The judge found the CC&Rs to be unambiguous, requiring a holistic interpretation. The documents clearly mandate that the HOA must maintain all yards and must assess all members equally to fund that maintenance.
• Final Ruling: The Petitioner did not meet his burden of proof. He failed to point to any provision within the CC&Rs that “allows, much less requires, Respondent to assess Petitioner less because he has a rock yard and will not allow Respondent to maintain his yard.”
• Order: The petition was denied. The HOA’s practice of charging uniform assessments was upheld as compliant with its governing documents.
Study Guide – 19F-H1918038-REL
Study Guide: Stoltenberg v. Rancho Del Oro Homeowners Association
This guide is designed to review the key facts, legal arguments, and conclusions presented in the Administrative Law Judge Decision for case number 19F-H1918038-REL, Michael Stoltenberg v. Rancho Del Oro Homeowners Association.
Short-Answer Quiz Questions
Answer the following questions in 2-3 complete sentences, based on the information provided in the case document.
1. Who are the primary parties involved in this case, and what are their respective roles?
2. What was the central allegation in the petition filed by Michael Stoltenberg with the Arizona Department of Real Estate?
3. According to the Petitioner’s testimony, what was the financial basis for his claim of unfair assessment?
4. Describe the history of the water and irrigation system issue at the Petitioner’s property prior to 2013, as detailed in Dawn Simpson’s letter.
5. What action did the Petitioner take during the 2013 well construction project, and what were the consequences of this action?
6. According to Article V, Section 5.1(a) of the CC&Rs, what specific maintenance obligation does the homeowners’ association have regarding individual lots?
7. How did Diana Crites, the HOA’s property manager, justify the uniform assessment for all homeowners based on the CC&Rs?
8. What reason did Ms. Crites provide for why eight units, including the Petitioner’s, were originally landscaped with rock instead of grass?
9. What is the legal standard of proof required in this hearing, and on which party does the burden of proof rest?
10. What was the final order of the Administrative Law Judge, and what was the core legal reasoning for this decision?
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Answer Key
1. The primary parties are Michael Stoltenberg, the “Petitioner,” and the Rancho Del Oro Homeowners Association, the “Respondent.” Mr. Stoltenberg is a homeowner and member of the HOA who filed a complaint against the association. The Respondent is the governing HOA for the Rancho Del Oro community in Yuma, Arizona.
2. The Petitioner alleged that the Respondent violated multiple sections of its Covenants, Conditions, and Restrictions (CC&Rs). His central claim was that it was unfair for the HOA to charge him the same assessment fees as his neighbors because his property has rock landscaping, while his neighbors have grass yards that require more maintenance.
3. The financial basis for his claim was the HOA’s budget. The Petitioner testified that in 2016, the Respondent spent $54,000 on lawn maintenance and landscaping, which accounted for 39% of the total budget.
4. Prior to 2013, the Petitioner made several complaints that his home was not connected to the community water system. The HOA Board’s position was that the Petitioner knew his home was not connected to the system when he purchased it.
5. During the 2013 construction to install a well and connect all homes to an irrigation system, the Petitioner became “very heated” with the contractor. He declared that no one was to enter his yard for any purpose, which halted all construction in his backyard and all landscaping provided by the HOA for his front yard.
6. Section 5.1(a) of the CC&Rs states that the Association’s maintenance duties “shall also include maintenance of the landscaping on individual Lots outside of structures.” This obligates the HOA to maintain landscaping even on privately owned lots.
7. Diana Crites testified that CC&R Section 4.1 requires all owners to be assessed uniformly. She stated this uniformity applies regardless of the type of landscaping an owner has chosen or whether they permit the HOA onto their property to perform maintenance.
8. Ms. Crites testified that the eight units were built by a different developer after the original construction and were not equipped with an irrigation system or grass. She believed rock was used in the front yards of these lots due to the high cost of water, an issue later resolved by the installation of a community well.
9. The legal standard is “a preponderance of the evidence,” which means the evidence must be convincing enough to make the contention more probably true than not. The burden of proof to establish a CC&R violation rests on the Petitioner, Mr. Stoltenberg.
10. The Administrative Law Judge denied the Petitioner’s petition. The reasoning was that the Petitioner failed to bear his burden of proof because he could not point to any provision in the CC&Rs that allows or requires the HOA to assess him less than his neighbors based on his landscaping choice or his refusal to allow maintenance.
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Essay Questions
The following questions are designed for longer-form analysis. Formulate a detailed response for each, citing specific evidence and CC&R provisions from the case document.
1. Analyze the central conflict between the Petitioner’s concept of fairness and the Respondent’s interpretation of the CC&Rs. Use specific clauses from the CC&Rs (e.g., Articles IV and V) to support the analysis of each party’s position.
2. Discuss the significance of the “preponderance of the evidence” standard in this case. How did the evidence presented by both the Petitioner (e.g., budget figures) and the Respondent (e.g., witness testimony and CC&Rs) contribute to the judge’s final decision regarding this standard?
3. Trace the history of the water and irrigation issue at the Petitioner’s property, from his initial complaints to his refusal to allow construction access. How did these past events impact the central issue of the 2019 hearing?
4. Explain the legal principle that “restrictive covenants must be construed as a whole.” How did the Administrative Law Judge apply this principle by referencing both Section 4.1 (Assessments) and Section 5.1(a) (Maintenance) of the CC&Rs to reach her conclusion?
5. Evaluate the actions of the Petitioner, Mr. Stoltenberg. Based on the evidence presented, did his own actions—specifically, denying the HOA access to his property—undermine his legal argument for a reduced assessment? Explain your reasoning using facts from the hearing evidence.
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Glossary
Definition from Source Context
Administrative Law Judge (ALJ)
An official (Diane Mihalsky) who presides over hearings at the Office of Administrative Hearings, an independent state agency, and makes decisions in matters referred by state departments like the Arizona Department of Real Estate.
Assessments
Charges levied by the homeowners’ association on its members. According to CC&R § 4.1, they are used for promoting the recreation, health, safety, and welfare of owners, including property maintenance, and are to be proportioned to each owner’s respective common interests.
Burden of Proof
The obligation of a party in a legal case to establish their claim. In this matter, the Petitioner bears the burden of proof to establish that the Respondent violated its CC&Rs.
Common Area
Defined in CC&R § 1.8 as “those portions of the Project to which title is held by the Association for the common use and enjoyment of the Owners and excepting the individual units.”
Common Expenses
Defined in CC&R § 1.9 as the “actual and estimated expenses of operating the association,” including any reasonable reserves and all sums designated as Common Expense by project documents.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing documents for a planned community that outline the rules, obligations, and rights of the homeowners and the homeowners’ association.
Easements
A right of use over the property of another. CC&R § 2.1 grants every owner a “non-exclusive easement and equitable right of use and enjoyment in, to, and throughout the Common Area.”
Homeowners’ Association (HOA)
The governing body for a planned community (Rancho Del Oro Homeowners Association) whose members are the property owners within that community. It is responsible for managing common areas and enforcing the CC&Rs.
Petitioner
The party who files a petition initiating a legal action. In this case, Michael Stoltenberg, a homeowner in Rancho Del Oro.
Preponderance of the Evidence
The evidentiary standard required to win the case. The source defines it as “such proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with “the most convincing force” that is “sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
Respondent
The party against whom a petition is filed. In this case, the Rancho Del Oro Homeowners Association.
Restrictive Covenant
A provision in a deed or community document that limits the use of the property. The source notes that in Arizona, an unambiguous restrictive covenant is enforced to give effect to the intent of the parties and must be construed as a whole.
Blog Post – 19F-H1918038-REL
He Sued His HOA Over an ‘Unfair’ Fee—The Reason He Lost Is a Warning for Every Homeowner
Introduction: The HOA Fee Frustration
For many homeowners, the monthly or annual bill from the Homeowners Association (HOA) can be a source of constant frustration. It’s easy to look at the line items—landscaping, pool maintenance, common area repairs—and wonder if you’re truly getting your money’s worth, especially when you feel you aren’t using a particular service.
This was exactly the position of Michael Stoltenberg, a homeowner in Arizona who believed he had an open-and-shut case to lower his HOA fees. His argument seemed logical, fair, and simple. But the ultimate ruling in his case, Stoltenberg v. Rancho Del Oro Homeowners Association, reveals some surprising and crucial truths about how HOA rules actually work and serves as a powerful lesson for every person living in a planned community.
Takeaway 1: You Pay for the Service, Even If You Actively Refuse It
Michael Stoltenberg’s argument was straightforward: his front yard was landscaped with rocks, while his neighbors had grass. He pointed out that in 2016, lawn maintenance accounted for a significant 39% of the HOA’s total budget. He argued it was fundamentally unfair for him to pay the same assessment as his neighbors when he wasn’t consuming this costly service.
His sense of unfairness was rooted in the history of the development. His home was one of eight built by a different developer than the rest of the community. Likely due to high water costs at the time, these eight lots were constructed without irrigation systems or grass. From the very beginning, his property was different. This context makes the crucial twist in the case all the more telling. In 2013, the HOA undertook a community-wide project to drill a new well and install an irrigation system, an effort designed to rectify the inconsistency and bring these outlier properties up to the community standard. When the construction reached Stoltenberg’s property, he refused the workers access.
Testimony from the HOA’s former bookkeeper laid this fact bare:
At this time, [Petitioner] declared that no one was to enter his yard for any purpose. This was also to include his front yard. This halted all construction that was currently in place in his back yard, and all landscaping being provided by the HOA for the front yard.
Legally, this transformed the situation. Stoltenberg’s complaint was no longer about a service he didn’t need, but about a service he actively rejected. This case establishes a critical principle: HOA assessments are tied to your property ownership and membership in the community, not your individual consumption of services. By refusing the service, Mr. Stoltenberg did not absolve himself of the cost associated with its availability to the community.
Takeaway 2: “Common Benefit” Isn’t the Same as “Your Personal Benefit”
The legal foundation for the HOA’s position rested in the language of its Covenants, Conditions, and Restrictions (CC&Rs). Specifically, Section 4.1 states that assessments are to be used for the “common benefit, and enjoyment of the Owners.”
In an HOA context, “common benefit” is a broad concept. It means that well-maintained landscaping throughout the entire neighborhood enhances curb appeal, creates a cohesive community aesthetic, and supports the property values of all residents. This includes Mr. Stoltenberg, whose home value is supported by the beautiful, uniform appearance of the neighborhood, regardless of whether his specific yard has grass. It’s the same reason a homeowner without children still pays for the upkeep of a community playground; the amenity benefits the community as a whole.
Further testimony reinforced this point. The HOA’s property manager stated that the association was still willing to remove the rock and install grass on his property, just as they had already done for two other homeowners in a similar situation. The benefit was available to him; he simply continued to refuse it.
Takeaway 3: The Rules Are a Package Deal, Not an A La Carte Menu
Ultimately, the Administrative Law Judge’s role was not to rule on a general sense of fairness but to enforce the community’s governing documents as written. When examined together, two key clauses in the CC&Rs created a contractual vise, leaving the judge with no other legal option. The two clauses created a perfect, inescapable loop.
• Section 5.1(a): This clause states the HOA has an obligation that “shall also include maintenance of the landscaping on individual Lots outside of structures.” The HOA wasn’t just permitted to do the work; it was contractually required to.
• Section 4.1: This clause, which also defines assessments as being for the “common benefit,” requires that they “shall constitute common expenses for which the apartment owners shall be severally liable in proportion to their respective common interests.”
The documents legally obligated the HOA to maintain all yards and to charge every owner the same proportional amount for doing so. The CC&Rs provided no mechanism for a homeowner to opt-out of a service and receive a corresponding discount. The judge’s final ruling was decisive, emphasizing the absolute nature of this contractual obligation:
Because Petitioner has not pointed to any CC&R that allows, much less requires, Respondent to assess Petitioner less because he has a rock yard and will not allow Respondent to maintain his yard, Petitioner has not borne his burden in this matter.
Conclusion: The Contract You Live In
The case of Michael Stoltenberg is a powerful reminder that an HOA’s CC&Rs are not just a set of neighborhood rules; they are restrictive covenants that run with the land. When you buy the property, you are irrevocably buying into the contract that governs it. These documents are designed to prioritize the uniform application of standards for the collective good, and they supersede an individual’s personal preferences or interpretation of what seems “fair.”
This case forces every potential buyer to ask a critical question: Are you simply purchasing a dwelling, or are you prepared to become a party to the binding legal contract that governs the entire community?
Case Participants
Petitioner Side
Michael Stoltenberg(Petitioner)
Respondent Side
Rancho Del Oro Homeowners Association(Respondent Entity) Entity, not human
