Tag Archives: 2020

Don France v. Mesa East Property Owners Association

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Case Summary

Case ID 20F-H2020056-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-09-21
Administrative Law Judge Thomas Shedden
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Don France Counsel —
Respondent Mesa East Property Owners Association Counsel B. Austin Bailio

Alleged Violations

CC&R section 2.7

Outcome Summary

The petition was dismissed because the Petitioner failed to demonstrate a violation by the Association, conceding that the Association was not in violation of the cited CC&R section.

Why this result: Petitioner acknowledged the Association was not in violation of CC&R section 2.7, the single issue raised in the petition.

Key Issues & Findings

Alleged violation of CC&R section 2.7 by the Association (later asserted as estoppel regarding enforcement)

Petitioner alleged the Respondent Association violated CC&R section 2.7. At the hearing, Petitioner acknowledged the Association was not actually in violation of section 2.7, but argued the Association was estopped from enforcing the provision requiring a six-foot gate for RV storage. Petitioner sought invalidation of outstanding fines.

Orders: Don France's petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. § 41-1092.07(F)(6)
  • ARIZ. REV. STAT. section 32-2199.02(B)
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. section 41-1092.09

Analytics Highlights

Topics: CC&R, RV storage, Estoppel, Fines
Additional Citations:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. § 41-1092.07(F)(6)
  • ARIZ. REV. STAT. section 32-2199.02(B)
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. section 41-1092.09

Video Overview

Audio Overview

Decision Documents

20F-H2020056-REL Decision – 924655.pdf

Uploaded 2026-04-24T11:27:03 (39.2 KB)

20F-H2020056-REL Decision – 823714.pdf

Uploaded 2026-04-24T11:27:11 (96.1 KB)

20F-H2020056-REL Decision – 823714.pdf

Uploaded 2026-01-23T17:32:50 (96.1 KB)

Administrative Hearing Briefing: France v. Mesa East Property Owners Association

Executive Summary

This document provides a detailed analysis of the administrative hearing decision in case number 20F-H2020056-REL, involving petitioner Don France and respondent Mesa East Property Owners Association (the “Association”). The core of the dispute was the Association’s enforcement of its Covenants, Conditions, and Restrictions (CC&Rs), specifically section 2.7, which requires a six-foot-high gate for Recreational Vehicles (RVs) stored on a property.

The petitioner, Mr. France, was fined by the Association in 2019 for not having the required gate on an RV structure that the Association itself had approved in 2014. Mr. France initially filed a petition alleging the Association was in violation of its own CC&Rs. However, at the September 1, 2020 hearing, he conceded this was not the case and instead argued the Association was “estopped”—or legally prevented—from enforcing the rule due to its prior approval.

The Administrative Law Judge ultimately dismissed Mr. France’s petition on procedural grounds. The judge determined that since Mr. France acknowledged his petition’s central claim was incorrect, he had failed to meet his burden of proof. The new arguments concerning estoppel and the legality of the fines were deemed not properly before the tribunal because they were not included in the original petition. The decision underscores the critical importance of aligning claims made in a formal petition with the arguments presented at a hearing.

Case Overview

Case Number

No. 20F-H2020056-REL

In the Office of Administrative Hearings

Petitioner

Don France

Respondent

Mesa East Property Owners Association

Respondent’s Counsel

B. Austin Bailio, Esq.

Administrative Law Judge

Thomas Shedden

Hearing Date

September 1, 2020

Decision Date

September 21, 2020

The central issue of the case revolves around the enforcement of CC&R section 2.7, which mandates that RVs stored on a property must be screened behind a structure with a six-foot-high gate. This requirement is mirrored by a City of Mesa municipal code.

Chronology of Key Events

• 2014: Mr. France applies for and receives approval from the Association’s Architectural Review Committee (ARC) to build an RV port. In his application, he acknowledges he will abide by deed restrictions and City of Mesa codes.

• October 21, 2014: The Association issues its final approval for the structure, which is built without a gate.

• Circa 2018: Following threats of litigation from other residents over non-enforcement of the CC&Rs, the Association begins a new enforcement campaign for the six-foot gate rule. The City of Mesa denies the Association’s request to “grandfather in” non-compliant homes.

• 2019: The deadline for residents to come into compliance passes.

• March 11, 2019: The Association issues a Notice of Violation (NOV) to Mr. France for lacking the required gate.

• April 5, 2019: Through an attorney, Mr. France asserts that the Association is estopped from enforcing the rule due to its 2014 approval.

• May 15, 2019: The Association’s attorney rejects the estoppel claim and informs Mr. France’s attorney that fines of $500 per week will be assessed.

• May 31, 2019: The Association assesses a $500 fine against Mr. France, with additional fines assessed later.

• July 24, 2019: The City of Mesa issues its own NOV to Mr. France, citing a violation of city code 11-34-5(B), which also requires a six-foot screening fence for RVs.

• April 16, 2020: Mr. France files a petition alleging the Association is in violation of CC&R section 2.7.

• Prior to Hearing: To comply with the City of Mesa’s NOV, Mr. France installs a temporary gate at a cost of approximately $800.

• September 1, 2020: The administrative hearing is conducted.

Analysis of Arguments and Testimonies

Petitioner’s Position (Don France)

• Initial Petition: The formal petition, filed on April 16, 2020, was based on the single issue that the Mesa East Property Owners Association had violated its own CC&R section 2.7.

• Revised Argument at Hearing: During the hearing, Mr. France acknowledged that the Association was not, in fact, violating section 2.7. His argument shifted to a claim of estoppel, asserting that the Association could not enforce the rule against him because its own ARC had approved his gateless structure in 2014.

• Requested Relief: Mr. France asked the judge to rule that the Association could not require him to install a gate and to invalidate any outstanding fines levied against him.

• Supporting Testimony: Joann Van Kirk, the chairperson of the ARC in 2014, testified on Mr. France’s behalf. She stated that she had been informed by a past chair that no gate was required for structures like Mr. France’s, citing other properties that had RV shelters without gates. She also testified that she called the City of Mesa at the time and was told a gate was not required if the structure was attached to the house.

Respondent’s Position (Mesa East POA)

• Basis for Enforcement: The Association began strictly enforcing the gate requirement around 2018 after being threatened with lawsuits by other members for failing to enforce the CC&Rs.

• Enforcement Actions: After an unsuccessful attempt to have the City of Mesa grandfather in non-compliant properties, the Association notified members of the requirement via its newsletter and online, setting a compliance deadline of 2019. When Mr. France did not comply, the Association issued an NOV and subsequently began assessing fines.

• Legal Stance: The Association’s counsel formally rejected Mr. France’s estoppel argument in May 2019.

• Supporting Testimony: Donald Smith testified that at the time the NOV was issued to Mr. France, eleven other residents were also non-compliant. By the hearing date, six remained in violation, five of whom had agreed to comply. This testimony was intended to show that the enforcement was not targeted solely at Mr. France.

Independent Municipal Action

The City of Mesa’s regulations played a significant and independent role in the matter.

• City Code: The City of Mesa has its own ordinance, Code section 11-34-5(B), which requires RVs taller than six feet to be screened by a six-foot-tall fence.

• Notice of Violation: On July 24, 2019, the City issued its own NOV to Mr. France for violating this code.

• Consequence: This municipal enforcement action compelled Mr. France to install a temporary gate to avoid penalties from the City, regardless of the outcome of his dispute with the Property Owners Association.

Administrative Law Judge’s Decision and Rationale

Final Order: IT IS ORDERED that Don France’s petition is dismissed.

The judge’s decision to dismiss the case was based on a precise legal and procedural rationale, rather than the merits of the estoppel argument.

• Failure of the Core Claim: The judge noted that Mr. France’s petition was limited to the single claim that the Association had violated CC&R section 2.7. At the hearing, Mr. France himself admitted this was not the case. As the petitioner, Mr. France bore the burden of proof, and his own testimony demonstrated that the “preponderance of the evidence shows that there is no violation.”

• Jurisdictional Limitation: The new issues raised by Mr. France at the hearing—namely the estoppel argument and the legality of the fines—were declared “not properly before the tribunal.” The judge reasoned that these claims were not included in the original petition, a separate filing fee was not paid for a second issue, and the claims were not listed in the official Notice of Hearing. This procedural failure prevented the judge from ruling on the substance of these arguments.

Conclusion and Post-Decision Protocol

The dismissal of Mr. France’s petition represents a conclusive finding in favor of the respondent based on the specific claims filed. The decision illustrates that the scope of an administrative hearing is strictly defined by the issues raised in the initial petition.

According to the decision document, the order is binding on both parties unless a rehearing is granted. A request for a rehearing must be filed with the Commissioner of the Arizona Department of Real Estate within 30 days of the service of the order, pursuant to Arizona Revised Statutes.

Study Guide: France v. Mesa East Property Owners Association (No. 20F-H2020056-REL)

This guide provides a comprehensive review of the administrative hearing decision in the case between Don France (Petitioner) and the Mesa East Property Owners Association (Respondent), as decided by Administrative Law Judge Thomas Shedden.

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Short-Answer Questions

Instructions: Answer the following questions in two to three complete sentences, drawing all information directly from the provided legal decision.

1. Who are the primary parties in this case, and what was the single issue alleged in the Petitioner’s original petition filed on April 16, 2020?

2. According to CC&R section 2.7 and the City of Mesa’s code, what is the specific requirement for storing a recreational vehicle (RV) on a property?

3. What enforcement actions did the Mesa East Property Owners Association take against Don France in the spring of 2019?

4. What was Don France’s primary legal argument against the Association’s enforcement, which he revealed at the September 1, 2020 hearing?

5. What was the state of compliance on Mr. France’s property regarding the RV gate as of the hearing date, and what prompted this action?

6. According to the testimony of Donald Smith, what prompted the Association to begin enforcing the six-foot gate requirement around 2018?

7. What key information did Joann Van Kirk, the 2014 chairperson of the Architectural Review Committee, provide in her testimony?

8. How did the Petitioner’s argument at the hearing differ from the allegation in his initial petition, and why was this difference critical to the case’s outcome?

9. Why did the Administrative Law Judge decline to rule on the legality of the fines the Association had levied against Mr. France?

10. What was the ultimate order issued by the Administrative Law Judge, and what was the legal reasoning behind this decision?

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Answer Key for Short-Answer Questions

1. The primary parties are Don France, the Petitioner, and the Mesa East Property Owners Association, the Respondent. The single issue alleged in Mr. France’s petition was that the Association was in violation of its own CC&R section 2.7.

2. Both CC&R section 2.7 (the 1994 version) and the City of Mesa’s code (section 11-34-5(B)) require that RVs stored on a property must be screened behind a structure with a gate that is at least six feet high. The CC&Rs also specified the fence and gate must be tall enough to prevent a person from seeing the RV.

3. On March 11, 2019, the Association issued a Notice of Violation to Mr. France because his RV structure lacked a six-foot gate. Subsequently, on May 31, 2019, the Association fined him $500 for the same violation.

4. At the hearing, Mr. France’s primary argument was that the Association was “estopped” from finding him in violation of section 2.7. He argued this because the Association’s Architectural Review Committee had approved his RV structure in 2014 without the gate.

5. As of the hearing date, Mr. France had installed a temporary six-foot gate at a cost of about $800. This action was taken to comply with a Notice of Violation issued to him by the City of Mesa on July 24, 2019.

6. Donald Smith testified that around 2018, people were threatening to sue the Association if it did not enforce the CC&Rs. After meeting with the City of Mesa, which would not allow non-compliant homes to be grandfathered in, the Association began enforcing the gate requirement.

7. Joann Van Kirk testified that in 2014, she had learned from the past ARC chair that no gate was required because other owners had shelters without gates. She also testified that she called the City of Mesa and was told no gate was required if the structure was attached to the house.

8. While his petition alleged the Association had violated section 2.7, at the hearing Mr. France acknowledged this was not the case and argued instead that the Association was estopped from enforcing that section against him. This was critical because the judge could only rule on the single issue raised in the petition, which Mr. France conceded had no merit.

9. The judge declined to rule on the legality of the fines because the issue was not raised in Mr. France’s original petition. Therefore, it was not properly before the tribunal as a filing fee had not been paid for a second issue and it was not included in the Notice of Hearing.

10. The judge ordered that Don France’s petition be dismissed. The reasoning was that the petition was limited to the single issue of whether the Association had violated CC&R section 2.7, and Mr. France himself acknowledged at the hearing that no such violation by the Association had occurred.

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Essay Questions

Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate a comprehensive essay-format response for each, citing specific facts from the case decision to support your arguments.

1. Analyze the concept of estoppel as it applies to this case. Explain why Don France believed the Association was estopped from enforcing the gate requirement, referencing the 2014 approvals, and discuss why the Association disagreed and proceeded with enforcement actions.

2. Discuss the procedural limitations that shaped the outcome of this hearing. How did the specific wording of Mr. France’s initial petition and the rules governing administrative hearings ultimately prevent the judge from considering the central issues of estoppel and the validity of the fines?

3. Examine the conflict between a property owner’s reliance on past approvals and a Property Owners Association’s duty to enforce its CC&Rs. Use the testimony of Joann Van Kirk and Donald Smith to illustrate the differing perspectives and pressures that led to this dispute.

4. Trace the timeline of events from Mr. France’s 2014 application to the 2020 hearing. Detail the key actions taken by Mr. France, the Association’s Architectural Review Committee, the Association’s Board, and the City of Mesa, and explain how their interactions created the legal conflict.

5. Evaluate the standard of proof required in this case, the “preponderance of the evidence.” Although the case was dismissed on a procedural issue, discuss which party presented a more convincing case regarding the underlying dispute over the RV gate, and why.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official (Thomas Shedden in this case) who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions and orders.

Architectural Review Committee (ARC)

A committee within the Property Owners Association responsible for reviewing and approving applications for property improvements, such as Mr. France’s RV port in 2014.

Burden of Proof

The responsibility of a party in a legal case to prove their allegations. In this matter, Mr. France bore the burden of proof to show the Association violated its CC&Rs.

Covenants, Conditions, and Restrictions. These are the governing community documents that set rules for property use, such as section 2.7 which requires a six-foot gate for RV storage.

Conclusions of Law

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

Estoppel

A legal principle asserted by Mr. France arguing that the Association should be prevented from enforcing a rule (the gate requirement) against him because of its prior action (approving his structure without a gate in 2014).

Findings of Fact

A formal, numbered list of facts in the judge’s decision that are established by the evidence and testimony presented during the hearing.

Notice of Violation (NOV)

A formal notice issued by the Association or the City of Mesa to a property owner informing them that they are in violation of a specific rule or code.

Petitioner

The party who initiates a legal action by filing a petition. In this case, Don France is the Petitioner.

Preponderance of the Evidence

The standard of proof required in this hearing. It is defined as evidence with “the most convincing force” that is sufficient to incline an impartial mind to one side of an issue over the other.

Respondent

The party against whom a petition is filed. In this case, the Mesa East Property Owners Association is the Respondent.

Select all sources
823714.pdf

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20F-H2020056-REL

1 source

The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings concerning the case of Don France versus the Mesa East Property Owners Association. The document details a dispute where Petitioner Don France alleged that the Respondent Association violated a community covenant regarding the storage of recreational vehicles (RVs), specifically CC&R section 2.7, which requires RVs to be stored behind a six-foot gate. Although Mr. France initially brought the petition alleging the Association violated the rule, he ultimately argued that the Association was estopped from enforcing the rule against him due to past approval of his RV structure without a gate. The decision includes a summary of the Findings of Fact related to Mr. France’s structure, the Association’s attempts to enforce the gate requirement against him and other residents, and the resulting fines he incurred before installing a gate to comply with a separate City of Mesa Notice of Violation. Ultimately, the Administrative Law Judge determined that Mr. France failed to meet the burden of proof to show the Association violated the CC&Rs, and his petition was dismissed because he acknowledged the Association was not actually in violation of section 2.7.

1 source

What were the legal and factual grounds for the case’s dismissal?
How did the Association’s past actions relate to the estoppel claim?
What was the core conflict between the homeowner, HOA, and city codes?

Based on 1 source

00:00
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NotebookLM can be inaccurate; please double check its responses.

Case Participants

Petitioner Side

  • Don France (petitioner)
    Appeared on his own behalf and testified
  • Joann Van Kirk (witness)
    Testified for Petitioner; was chairperson of Architectural Review Committee ('ARC') in 2014

Respondent Side

  • B. Austin Bailio (HOA attorney)
    Maxwell & Morgan, P.C.
    Attorney for Respondent Mesa East Property Owners Association
  • Michael Estey (witness)
    Testified for Respondent
  • Donald Smith (witness)
    Testified for Respondent

Neutral Parties

  • Thomas Shedden (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate

Nancy L Babington v. Park Scottsdale II Townhouse Corporation

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Case Summary

Case ID 20F-H2020064-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2021-03-24
Administrative Law Judge Tammy L. Eigenheer
Outcome full
Filing Fees Refunded $500.00
Civil Penalties $2,500.00

Parties & Counsel

Petitioner Nancy L. Babington Counsel —
Respondent Park Scottsdale II Townhouse Corporation Counsel Mark K. Sahl and Scott B. Carpenter

Alleged Violations

A.R.S. § 33-1258(A)

Outcome Summary

Following a rehearing based on newly discovered evidence, the Administrative Law Judge found that Respondent violated A.R.S. § 33-1258(A) by failing to timely provide records it possessed. Respondent was ordered to reimburse the Petitioner $500.00 for the filing fee and pay a $2,500.00 civil penalty to the Department of Real Estate.

Key Issues & Findings

Failure to make association financial and other records reasonably available for examination/provide copies within ten business days.

Petitioner alleged Respondent violated A.R.S. § 33-1258 by failing to provide requested records (including bank statements and contracts) following a formal request on May 1, 2020. The Administrative Law Judge, in the rehearing, found that the evidence showed Respondent was in possession of bank statements and two signed contracts at the time of the request, contradicting prior testimony, thereby establishing a violation of the statute.

Orders: Respondent was ordered to pay Petitioner $500.00 for the filing fee reimbursement and pay a civil penalty of $2,500.00 to the Department of Real Estate, both payments due within 30 days.

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $2,500.00

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1258
  • A.R.S. § 32-2199.02
  • A.A.C. R2-19-119

Analytics Highlights

Topics: HOA records request, A.R.S. 33-1258, Rehearing, Civil Penalty, Possession of Records
Additional Citations:

  • A.R.S. § 33-1258
  • A.R.S. § 32-2199.02
  • A.A.C. R2-19-119

Video Overview

Audio Overview

Decision Documents

20F-H2020064-REL Decision – 866802.pdf

Uploaded 2026-04-24T11:28:35 (123.5 KB)

20F-H2020064-REL Decision – 823263.pdf

Uploaded 2026-04-24T11:28:38 (108.6 KB)

Briefing Document: Babington v. Park Scottsdale II Townhouse Corporation

Executive Summary

This document synthesizes the findings from two administrative hearings concerning a records request dispute between homeowner Nancy L. Babington (Petitioner) and the Park Scottsdale II Townhouse Corporation (Respondent). The case, No. 20F-H2020064-REL, culminated in a reversal of an initial ruling, finding the Respondent in violation of Arizona law A.R.S. § 33-1258 for failing to provide association records within the statutory timeframe.

The initial hearing on August 28, 2020, resulted in a denial of the petition. The Respondent successfully argued that it could not produce the requested documents because they were not in its possession, largely due to a dispute with a former management company. However, a rehearing was granted after the Petitioner discovered new evidence.

The rehearing on March 4, 2021, established that the Respondent, through its management company Associa Arizona, was in possession of key requested documents—specifically bank statements and signed contracts—at the time of the initial request. Evidence revealed the bank statements were held at a central corporate office in Texas and were not retrieved, while signed contracts had not been forwarded to the management company by board members. The Administrative Law Judge found this directly contradicted the Respondent’s initial defense.

As a result, the Administrative Law Judge reversed the earlier decision, ordering the Respondent to reimburse the Petitioner’s $500 filing fee and imposing a $2,500 civil penalty payable to the Arizona Department of Real Estate. The case underscores an association’s responsibility to produce all records in its possession, regardless of physical location within the corporate structure, and affirms the court’s authority to levy penalties for violations.

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1. Case Overview

• Case Number: 20F-H2020064-REL

• Petitioner: Nancy L. Babington

• Respondent: Park Scottsdale II Townhouse Corporation

• Core Allegation: Violation of A.R.S. § 33-1258, which mandates that a condominium owners’ association must make its financial and other records reasonably available for examination by a member within ten business days of a request.

• Hearings Conducted:

◦ Initial Hearing: August 28, 2020

◦ Rehearing: March 4, 2021

• Presiding Administrative Law Judge: Tammy L. Eigenheer

2. Chronology of the Dispute

The dispute originated from difficulties following a change in the Respondent’s management company and subsequent records requests by the Petitioner.

• June-July 2019: The previous management company, Community Management & Consulting, LLC (CMC), terminated its agreement with the Respondent. A “financial disagreement” led to CMC withholding records, complicating the transition.

• Post-July 2019: Respondent hired Associa Arizona as its new management company. Associa and the Respondent’s counsel attempted to obtain the withheld records from CMC.

• April 29, 2020: After previous attempts to get information, Petitioner Nancy L. Babington sent a formal email to Associa and the Respondent’s Board of Directors. In the email, she stated:

• May 1, 2020: Linda Parker, Director of Client Services with Associa, replied, stating the request was not specific and asked the Petitioner to identify the exact records needed.

• May 1, 2020: The Petitioner responded with a detailed list of nine specific items:

1. All bank statements with copies of cancelled checks since Sept 1, 2019.

2. Any and all financial statements since Sept 1, 2019.

3. Any and all 1099s issued for 2019.

4. Any and all Executive Session meeting minutes conducted in 2020 (excluding statutory exemptions).

5. Any and all contracts signed in 2020.

6. Any and all outstanding invoices with a due date over 45 days.

7. Any documentation regarding the legality of the $204.75 maintenance fee.

8. Any proof of Stephen Silberschlag’s liability insurance.

9. Any landscaping plans.

• May 4, 2020: Ms. Parker from Associa responded that the company could only provide records within its possession.

• May 15, 2020: Following another email from the Petitioner, Ms. Parker stated that Associa had scheduled a meeting with the board on May 20 to discuss the request further.

• May 28, 2020: Having not received any of the requested documents, the Petitioner filed a petition with the Arizona Department of Real Estate.

3. The Initial Hearing and Decision (August – September 2020)

The first hearing focused on whether the Respondent had violated the statute by failing to produce the documents.

• The Respondent argued that it was unable to provide documents that were not in its possession.

• Joseph Silberschlag, Secretary of the Board of Directors, testified that issues with the former management company (CMC) meant neither the Respondent nor Associa had possession of many necessary documents.

• Specifically, he stated that without previous financial documents and starting balances from CMC, the association was unable to create current financial statements.

• The Respondent maintained it was under no statutory obligation to create documents to fulfill the Petitioner’s request.

• The Administrative Law Judge (ALJ) concluded that the Petitioner “failed to establish by a preponderance of the evidence that Respondent violated A.R.S. § 33-1258(A).”

• The finding was based on the Respondent’s argument that it did not possess the requested documents at the time of the request.

• On September 17, 2020, the ALJ issued a decision denying the Petitioner’s petition.

4. The Rehearing and Reversal (March 2021)

Following the initial decision, the case was reopened based on new evidence presented by the Petitioner.

• After the September 2020 decision, the Respondent provided some of the requested documents to the Petitioner.

• Upon reviewing these documents, the Petitioner realized that the Respondent had, in fact, been in possession of several key records prior to her May 1, 2020 request.

• She filed a Rehearing Request with the Department of Real Estate, citing “newly discovered material evidence that could not with reasonable diligence have been discovered and produced at the original hearing.” The request was granted.

The rehearing revealed crucial details about the location and accessibility of the requested records.

Record Type

Petitioner’s Evidence

Respondent’s Testimony/Explanation

Bank Statements

The documents received post-hearing showed that bank statements had been sent to Associa starting in August 2019.

Evelyn Shanley, Community Director for Associa, testified that statements for all HOAs were sent to a central office in Richardson, Texas. She admitted she did not contact the Texas office to obtain the statements for the Petitioner’s request. Counsel for the Respondent conceded the statements in Texas were in the possession of Associa.

Contracts

Petitioner presented two contracts signed by Board members on March 27 and March 31, 2020, prior to her request.

Ms. Shanley admitted the two signed contracts existed but stated that the Board of Directors members had not provided them to Associa.

1099 Forms

Petitioner noted a document indicating four vendors were eligible for 1099s.

Ms. Shanley denied that any 1099s had been issued.

• The documents were not in the “immediate possession” of the local Associa office.

• The matter was now moot because the Petitioner had received all requested documents.

• A civil penalty was inappropriate because the Petitioner did not specifically request one on her initial petition form.

• The evidence presented at the rehearing was “directly contradictory” to the representations made by the Respondent at the initial hearing.

• The Petitioner successfully established by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1258(A) by failing to provide documents (bank statements and contracts) that were in its possession.

• The ALJ rejected the Respondent’s argument against a civil penalty, stating that the plain language of A.R.S. § 32-2199.02 allows the judge to levy a penalty for established violations, and “nothing in the statute limits the available remedies to those specifically requested by a petitioner.”

5. Final Order and Penalties

The Administrative Law Judge Decision issued on March 24, 2021, reversed the initial finding and imposed penalties on the Respondent.

IT IS ORDERED that:

1. Respondent must pay the Petitioner her filing fee of $500.00 within 30 days.

2. Respondent must pay to the Department of Real Estate a civil penalty in the amount of $2,500.00 within 30 days.

Study Guide: Babington v. Park Scottsdale II Townhouse Corporation

This study guide provides a review of the administrative case involving Petitioner Nancy L. Babington and Respondent Park Scottsdale II Townhouse Corporation. It includes a short-answer quiz to test factual recall, a separate answer key, a set of essay questions for deeper analysis, and a glossary of key terms and entities involved in the proceedings.

Short-Answer Quiz

Answer each question 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 Petitioner’s central allegation?

2. What specific Arizona statute was the Respondent accused of violating, and what does this law generally require?

3. What was the Respondent’s main defense during the initial hearing on August 28, 2020, for not providing the requested records?

4. What was the conclusion of the Administrative Law Judge in the first decision, issued on September 17, 2020?

5. On what legal grounds did the Petitioner successfully file for a rehearing of her case?

6. What new evidence regarding bank statements was presented by the Petitioner at the March 4, 2021, rehearing?

7. How did the Respondent’s management company, Associa Arizona, explain its failure to produce the bank statements and signed contracts in response to the initial request?

8. What was the final outcome of the rehearing, and how did it contradict the initial decision?

9. What two financial penalties were imposed upon the Respondent in the final order of March 24, 2021?

10. What was the Respondent’s argument against the imposition of a civil penalty, and why did the Administrative Law Judge reject it?

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Answer Key

1. The primary parties were Petitioner Nancy L. Babington, a property owner, and Respondent Park Scottsdale II Townhouse Corporation, a condominium owners association. The Petitioner alleged that the Respondent failed to provide association records she formally requested, in violation of Arizona law.

2. The Respondent was accused of violating A.R.S. § 33-1258. This statute requires a condominium owners association to make its financial and other records reasonably available for examination by a member and to provide copies of requested records within ten business days.

3. During the initial hearing, the Respondent’s main defense was that it was unable to provide the documents because they were not in its possession. The Respondent claimed its former management company, CMC, was withholding records and that without starting balances, it could not create new financial documents.

4. The Administrative Law Judge denied the Petitioner’s petition in the first decision. The judge concluded that the Petitioner failed to establish by a preponderance of the evidence that the Respondent violated the statute because the Respondent did not possess the documents and was not required to create them.

5. The Petitioner was granted a rehearing based on the discovery of “newly discovered material evidence that could not with reasonable diligence have been discovered and produced at the original hearing.” After the first decision, the Respondent provided documents that proved it had, in fact, been in possession of some of the requested records prior to her request.

6. At the rehearing, the Petitioner testified that after receiving the documents, she realized bank statements had been sent to Associa’s central office in Richardson, Texas, starting in August 2019. This demonstrated that the records were in the management company’s possession when she made her request.

7. Associa’s representative testified that bank statements went to a central office in Texas and were not forwarded to the local office because financial packets could not be prepared without starting balances from the previous management company. Regarding the contracts, Associa claimed that the Board of Directors members who signed them had not provided the contracts to Associa.

8. The final outcome of the rehearing was a ruling in favor of the Petitioner. The judge found that evidence presented at the rehearing directly contradicted the Respondent’s earlier claims, establishing that the Respondent did possess bank statements and contracts and had violated A.R.S. § 33-1258(A).

9. In the final order, the Respondent was ordered to pay the Petitioner’s filing fee of $500.00. Additionally, the Respondent was ordered to pay a civil penalty of $2,500.00 to the Arizona Department of Real Estate.

10. The Respondent argued that a civil penalty was not appropriate because the Petitioner did not specifically request one by checking the box on the petition form. The judge rejected this, stating that the plain language of A.R.S. § 32-2199.02 allows the judge to levy a civil penalty for established violations, and this authority is not limited by the remedies requested by a petitioner.

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Essay Questions

The following questions are designed for analytical and in-depth responses. Answers are not provided.

1. Analyze the concept of “possession” of records as it evolved from the first hearing to the second. How did the Respondent’s initial interpretation of “immediate possession” differ from the Administrative Law Judge’s final conclusion regarding the records held by Associa’s Texas office?

2. Discuss the significance of the “preponderance of the evidence” standard in this case. Explain specifically how the Petitioner failed to meet this standard in the first hearing but succeeded in the second, citing the key pieces of evidence that shifted the outcome.

3. Evaluate the role and responsibilities of the management company, Associa Arizona, in this dispute. To what extent were its internal procedures and actions (or inactions) the primary cause of the Respondent’s violation of A.R.S. § 33-1258?

4. Trace the timeline of communication between Nancy Babington and Associa Arizona from April 29, 2020, to May 15, 2020. Analyze how the responses from Associa may have contributed to the perception that the Respondent was refusing to provide information, ultimately leading to the petition being filed.

5. The Administrative Law Judge has the statutory authority to levy a civil penalty for each violation found. Based on the facts of this case, including the Respondent’s representations at the first hearing and the contradictory evidence presented at the second, construct an argument justifying the imposition of the $2,500 civil penalty.

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Glossary of Key Terms

Term / Entity

Definition

A.R.S. § 32-2199 et seq.

The Arizona Revised Statute cited as giving the Arizona Department of Real Estate jurisdiction to hear disputes between a property owner and a condominium owners association.

A.R.S. § 33-1258

The Arizona Revised Statute at the core of the dispute. It requires that an association’s financial and other records be made “reasonably available” for examination and that the association has ten business days to fulfill a request for examination or to provide copies.

Administrative Law Judge (ALJ)

The official from the Office of Administrative Hearings (Tammy L. Eigenheer in this case) responsible for conducting the hearings, weighing evidence, and issuing a legally binding decision and order.

Associa Arizona

The management company hired by the Respondent to handle its operations after the termination of the previous management agreement. It was the primary point of contact for the Petitioner’s records request.

Civil Penalty

A monetary fine levied by the Administrative Law Judge for a violation of the law. In this case, a $2,500 penalty was ordered to be paid to the Department of Real Estate.

Community Management & Consulting, LLC (CMC)

The Respondent’s former management company. CMC terminated its agreement with the Respondent and was withholding association records due to a financial disagreement, which was a key part of the Respondent’s defense in the initial hearing.

Department of Real Estate (Department)

The Arizona state agency with which the Petitioner filed her petition and which has jurisdiction over such disputes.

A legal argument made by the Respondent’s counsel during the rehearing. Counsel asserted that the matter was moot (no longer relevant or in dispute) because, by the time of the rehearing, the Petitioner had received all the documents she requested.

Newly Discovered Material Evidence

The legal basis upon which the Petitioner was granted a rehearing. It refers to significant evidence that was not available at the time of the original hearing despite reasonable diligence.

Petitioner

The party who initiates a legal action or petition. In this case, Nancy L. Babington, a condominium owner.

Preponderance of the Evidence

The standard of proof required for the Petitioner to win her case. It is defined as evidence that is more convincing and shows that the fact sought to be proved is “more probable than not.”

Rehearing

A second hearing granted by the Commissioner of the Department of Real Estate to re-examine a case, which was held on March 4, 2021, after the Petitioner presented newly discovered evidence.

Respondent

The party against whom a petition is filed. In this case, Park Scottsdale II Townhouse Corporation, the condominium owners association.

Select all sources
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20F-H2020064-REL-RHG

2 sources

These two sources are Administrative Law Judge Decisions concerning a dispute between Nancy L. Babington, a homeowner, and the Park Scottsdale II Townhouse Corporation, her condominium owners association, regarding the provision of association records under Arizona statute A.R.S. § 33-1258. The first document details the initial hearing, held in August 2020, where the judge ruled in favor of the association, concluding that the association was not in violation because it lacked possession of the requested documents due to issues with its former management company. The second document outlines the rehearing, granted due to newly discovered evidence suggesting the association or its new management company, Associa Arizona, actually possessed some records, such as bank statements and contracts, despite earlier claims. Based on the rehearing’s findings, the judge determined the association violated the statute by not providing the records within the ten-day requirement and ordered the association to reimburse the petitioner’s filing fee and pay a civil penalty.

2 sources

How did newly discovered evidence lead to reversal of the initial legal decision?
What were the specific consequences for the respondent following the administrative rehearing?
How did the interpretation of statutory record possession requirements change between hearings?

Based on 2 sources

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NotebookLM can be inaccurate; please double check its responses.

Case Participants

Petitioner Side

  • Nancy L. Babington (petitioner)

Respondent Side

  • Lydia A. Peirce Linsmeier (HOA attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
    Represented Respondent at initial hearing
  • Mark K. Sahl (HOA attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
    Represented Respondent at rehearing
  • Scott B. Carpenter (HOA attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
    Represented Respondent at rehearing
  • Debbie Schumacher (board member)
    Park Scottsdale II Townhouse Corporation
  • Marty Shuford (board member)
    Park Scottsdale II Townhouse Corporation
  • Joseph Silberschlag (board member)
    Park Scottsdale II Townhouse Corporation
    Secretary; testified
  • Angelina Rajenovich (board member)
    Park Scottsdale II Townhouse Corporation
  • Dermot Brown (board member)
    Park Scottsdale II Townhouse Corporation
  • Lori Nusbaum (board member)
    Park Scottsdale II Townhouse Corporation
  • Linda Parker (HOA staff)
    Associa Arizona
    Director of Client Services for property manager
  • Evelyn Shanley (HOA staff)
    Associa Arizona
    Community Director for property manager; testified at rehearing
  • Laura Smith (HOA staff)
    Associa Arizona

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    OAH
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • LDettorre (ADRE staff)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
  • djones (ADRE staff)
    Arizona Department of Real Estate
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
  • ncano (ADRE staff)
    Arizona Department of Real Estate
  • c. serrano (staff)
    Signed order transmission

Other Participants

  • Stephen Silberschlag (unknown)
    Subject of Petitioner's record request

Laura B Ganer v. Vincenz Homeowners Association

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Case Summary

Case ID 20F-H2020060-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-09-16
Administrative Law Judge Velva Moses-Thompson
Outcome The petition was dismissed because the Petitioner failed to prove that the Respondent HOA violated its CC&Rs (Article 7 § 3, Article 10 § 10.11, and Article 12 § 2) when adopting the new parking policy.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Laura B Ganer Counsel —
Respondent Vincenz Homeowners Association Counsel Mark B. Sahl, Esq.

Alleged Violations

VHA CC&Rs Article 10 § 11, Article 7 § 3, and Article 12 § 2

Outcome Summary

The petition was dismissed because the Petitioner failed to prove that the Respondent HOA violated its CC&Rs (Article 7 § 3, Article 10 § 10.11, and Article 12 § 2) when adopting the new parking policy.

Why this result: Petitioner failed to meet the burden of proof to establish that Respondent violated its CC&Rs by a preponderance of the evidence.

Key Issues & Findings

Challenge to new HOA parking policy adoption

Petitioner alleged the VHA's new parking policy was unreasonable and improperly adopted without an amendment, violating specific CC&R sections.

Orders: The petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 32-2199(B)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 33-1803
  • ARIZ. REV. STAT. § 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)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Analytics Highlights

Topics: Parking Policy, CC&Rs, Board Authority, Burden of Proof, Dismissal
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199(B)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 33-1803
  • ARIZ. REV. STAT. § 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)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Video Overview

Audio Overview

Decision Documents

20F-H2020060-REL Decision – 822882.pdf

Uploaded 2026-01-23T17:33:39 (108.6 KB)

Briefing Document: Ganer v. Vincenz Homeowners Association (Case No. 20F-H2020060-REL)

Executive Summary

This document provides an analysis of the Administrative Law Judge Decision in the case of Laura B. Ganer vs. the Vincenz Homeowners Association (VHA), case number 20F-H2020060-REL. The central dispute concerned a new on-street parking policy adopted by the VHA Board in 2020. The petitioner, Ms. Ganer, alleged this policy violated multiple articles of the VHA’s Covenants, Conditions, and Restrictions (CC&Rs).

The Administrative Law Judge, Velva Moses-Thompson, ultimately dismissed the petition. The court concluded that the VHA Board acted within the explicit authority granted to it by the community’s governing documents, specifically CC&R Article 10, § 10.11.1, which empowers the Board to designate parking areas. The judge found that the petitioner failed to meet the burden of proof—a “preponderance of the evidence”—to establish that the VHA had violated its CC&Rs. The decision affirmed the Board’s right to establish rules and regulations for parking as outlined in the CC&Rs without requiring a full membership vote for an amendment.

Background of the Dispute

The case originated from a single-issue petition filed by homeowner Laura B. Ganer with the Arizona Department of Real Estate on or about May 20, 2020. The petition alleged that the Vincenz Homeowners Association violated its governing documents by adopting a new parking policy.

• Parties:

◦ Petitioner: Laura B. Ganer, a property owner within the VHA.

◦ Respondent: Vincenz Homeowners Association (VHA).

• Catalyst: The VHA Board of Directors adopted a new on-street parking policy in 2020.

• Alleged Violations: The petition claimed the new policy violated VHA CC&R Article 10, Section 11; Article 7, Section 3; and Article 12, Section 2.

• Legal Forum: The matter was referred to the Office of Administrative Hearings (OAH) for an evidentiary hearing, which took place on August 27, 2020.

The Contested 2020 Parking Policy

The policy adopted by the VHA Board resolved to allow on-street parking for specific vehicles in designated areas, provided the parking complied with associated rules.

• Allowed Vehicles: Private passenger automobiles and pickup trucks that do not exceed one ton in capacity.

• Designated Parking Areas:

1. Immediately in front of a Lot, for vehicles associated with the owner, resident, or their guests, or with the lot owner’s consent.

2. Immediately in front of any Common Area park within the Association.

3. Along any public street within the Association that does not border a Lot (e.g., in front of a Common Area tract).

Core Legal Arguments and Cited CC&Rs

The dispute centered on whether the VHA Board had the authority to enact the new parking policy or if doing so violated the foundational CC&Rs.

Petitioner’s Position (Laura B. Ganer)

Ms. Ganer argued that the new policy fundamentally contradicted the intent and letter of the CC&Rs.

• Violation of Article 10: She asserted that the original intention of CC&R Article 10, Section 10.11.1 was to limit parking within the VHA.

• Violation of Article 7: She contended the policy violates Article 7, Section 3, because it is “unreasonable” by allowing parking “virtually everywhere” within the community.

• Implicit Amendment: The new policy was so expansive that it effectively constituted an amendment to the CC&Rs, which would require the procedure outlined in Article 12, Section 2 (a 67% member vote), not just a Board resolution.

Respondent’s Position (Vincenz HOA)

The VHA argued that its actions were a proper exercise of the authority explicitly granted to the Board in the CC&Rs.

• Authority from Article 10: VHA contended that CC&R Article 10, § 10.11.1 expressly allows the Board to create parking rules by permitting parking “within areas designated for such purpose by the Board.”

• Inapplicability of Article 7: The Association argued that Article 7, Section 3, which governs general “Association Rules,” did not apply because the parking policy was adopted under the specific authority of Article 10.

• No Amendment Required: VHA maintained that since Article 10 grants the Board the power to adopt parking rules and regulations, an amendment to the CC&Rs under Article 12, Section 2 was not necessary.

• Jurisdictional Argument: VHA also argued that the petition should be dismissed because Ms. Ganer failed to allege or provide facts that the VHA itself had improperly parked a vehicle in violation of the CC&Rs.

Relevant Articles from VHA CC&Rs

Article

Section

Provision Text

Article 10

§ 10.11.1

“Vehicles. No private passenger automobiles or pickup trucks shall be parked upon the Property or any roadway adjacent thereto except within a garage, in a private driveway appurtenant to a Dwelling Unit, or within areas designated for such purpose by the Board.”

Article 10

§ 10.11.2

Governs restrictions on other vehicles like RVs, boats, and commercial vehicles, but allows the Board to designate areas and rules for them.

Article 7

“By a majority vote of the Board, the Association may… adopt, amend and repeal the Association Rules. The Association Rules shall be reasonable… and shall not be inconsistent with this Declaration…”

Article 12

“Except as otherwise provided in this Declaration, this Declaration may be amended only by the affirmative vote (in person or by proxy) or written consent of: (a) Members holding not less than sixty-seven percent (67%) of all Class A votes…”

Administrative Law Judge’s Findings and Decision

The Administrative Law Judge’s decision, issued on September 16, 2020, was based on a direct interpretation of the VHA’s governing documents and the evidence presented.

Legal Standard and Burden of Proof

• The petitioner, Ms. Ganer, bore the burden of proving her allegations by a “preponderance of the evidence,” defined as evidence that is more probably true than not.

• In Arizona, unambiguous restrictive covenants are enforced to give effect to the intent of the parties, and they must be construed as a whole.

Conclusions of Law

1. Interpretation of Article 10: The judge found that CC&R Article 10, Section 10.11.1 unambiguously forbids parking except in specified locations, including “in an area that has… been designated for parking by the Board.”

2. Board Authority: The court concluded that the VHA’s adoption of the parking policy was a valid exercise of the authority explicitly granted to the Board by Article 10.11.1 to designate such parking areas.

3. Failure to Meet Burden of Proof: Ms. Ganer failed to establish that the VHA violated any of the cited articles. The judge noted that Ganer did not even allege that the VHA itself had improperly parked a vehicle.

4. Overall Finding: The decision states, “Upon consideration of all of the evidence presented in this matter, the Administrative Law Judge concludes that VHA did not violate CC&R Article 7 § 3, Article 10 § 10.11, and CC&R Article 12 § 2 when it adopted the parking policy.”

Final Order

“IT IS ORDERED, the petition is dismissed.”

The decision is binding on the parties unless a rehearing is requested with the Commissioner of the Department of Real Estate within 30 days of the service of the order.

Study Guide: Ganer v. Vincenz Homeowners Association

This guide provides a detailed review of the administrative law case Laura B. Ganer v. Vincenz Homeowners Association, Case No. 20F-H2020060-REL. It is designed to test comprehension of the facts, legal arguments, and final decision as presented in the source documents.

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Quiz: Short-Answer Questions

Instructions: Please answer the following questions in two to three complete sentences, using only information provided in the case decision.

1. Who were the petitioner and the respondent in this case, and what was their relationship within the community?

2. What specific action did the Vincenz Homeowners Association (VHA) take in 2020 that initiated this legal dispute?

3. List the three specific articles of the VHA’s Covenants, Conditions, and Restrictions (CC&Rs) that petitioner Laura Ganer alleged were violated.

4. According to VHA’s CC&R Article 10 § 10.11.1, under what three conditions are private passenger automobiles and pickup trucks permitted to be parked?

5. What was Ms. Ganer’s primary argument for why the VHA’s new parking policy was “unreasonable” as defined under Article 7 § 3?

6. Upon what grounds did the VHA argue that the petition should be dismissed, relating to the petitioner’s specific allegations?

7. Explain the legal standard of “preponderance of the evidence” as defined in the Administrative Law Judge’s decision.

8. How did the VHA defend its adoption of the new parking policy without obtaining the 67% member vote required for amendments under Article 12 § 2?

9. What was the core reason the Administrative Law Judge concluded that Ms. Ganer failed to prove a violation of CC&R Article 10 § 10.11.1?

10. What was the final order issued by the Administrative Law Judge in this case?

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Answer Key

1. The petitioner was Laura B. Ganer, a property owner. The respondent was the Vincenz Homeowners Association (VHA). Ganer owned property within the planned community governed by the VHA.

2. In 2020, the VHA’s Board of Directors adopted a new parking policy that formally allowed on-street parking for certain vehicles in designated areas, such as in front of lots and common areas. This new policy prompted Ms. Ganer to file her petition.

3. Ms. Ganer alleged that the VHA violated Article 10, section 11; Article 7, section 3; and Article 12, section 2 of its Covenants, Conditions, and Restrictions.

4. CC&R Article 10 § 10.11.1 permits these vehicles to be parked within a garage, in a private driveway appurtenant to a Dwelling Unit, or within areas designated for such purpose by the Board.

5. Ms. Ganer argued that the new policy was unreasonable because it allows for parking virtually everywhere within the VHA. She asserted that the original intention of the CC&Rs was to limit parking, not expand it so broadly.

6. The VHA argued for dismissal because Ms. Ganer did not contend, nor provide facts to establish, that the VHA had actually parked an automobile or pickup truck in any prohibited area. The VHA stated the Office of Administrative Hearings only had jurisdiction over alleged violations, not the mere adoption of a policy.

7. “Preponderance of the evidence” is defined as proof that convinces the trier of fact that a contention is more probably true than not. It is described as the greater weight of evidence that is sufficient to incline a fair and impartial mind to one side of an issue over the other.

8. The VHA contended that an amendment was not required to adopt the parking policy. It argued that CC&R Article 10 § 10.11.1 already granted the Board the specific authority to designate parking rules and regulations.

9. The Judge concluded that Ms. Ganer failed to prove a violation because she did not allege that the VHA had actually parked a vehicle in a prohibited area. The Judge noted that the covenant forbids parking in a roadway or garage unless it is in an area designated by the Board.

10. The final order was that the petition is dismissed. This means the judge ruled in favor of the respondent, Vincenz Homeowners Association, and against the petitioner, Laura Ganer.

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Essay Questions

Instructions: The following questions are designed to encourage deeper analysis of the case. Formulate a detailed essay response for each prompt, drawing evidence and arguments directly from the provided legal decision.

1. Analyze the conflicting interpretations of CC&R Article 10 § 10.11.1 presented by Laura Ganer and the Vincenz Homeowners Association. How did the Administrative Law Judge resolve this conflict, and what does this reveal about the judicial interpretation of restrictive covenants?

2. Discuss the legal concept of “burden of proof” as it applied in this case. Explain who held the burden, what the standard was, and why the petitioner ultimately failed to meet it according to the Judge’s findings.

3. Examine the VHA’s argument that CC&R Article 7 § 3 (regarding the adoption of “Association Rules”) was not applicable to its creation of the new parking policy. Based on the text, what is the distinction between a board-designated rule under Article 10 and a formal “Association Rule” under Article 7?

4. Evaluate the petitioner’s claim that the new parking policy constituted an amendment to the Declaration, thereby violating CC&R Article 12 § 2, which requires a 67% member vote. Why was this argument unsuccessful, and what does the decision imply about the scope of a homeowner association board’s power?

5. Using the facts of the case, explain the procedural journey of a homeowner’s dispute within a planned community in Arizona, from the initial filing to the final administrative order.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over hearings at an administrative agency (in this case, the Office of Administrative Hearings) and makes legal decisions. The ALJ in this matter was Velva Moses-Thompson.

Allowed Vehicles

A term from the VHA’s 2020 parking policy defining the types of vehicles permitted for on-street parking: private passenger automobiles and pickup trucks not exceeding one ton in capacity.

Burden of Proof

The legal obligation of a party in a dispute to provide sufficient evidence to prove their claim. In this case, the petitioner bore the burden of proof.

An acronym for Covenants, Conditions, and Restrictions. These are the governing legal documents that set out the rules for a planned community or homeowners association.

Common Area

Land within a planned community owned by the association for the shared use and enjoyment of its members, such as a park.

Department

Refers to the Arizona Department of Real Estate, the state agency that received the initial petition from Ms. Ganer.

Notice of Hearing

A formal document issued by a legal body that sets the date, time, and location for a hearing and outlines the issues to be discussed. In this case, it was issued on July 1, 2020.

An acronym for the Office of Administrative Hearings, the state office where the evidentiary hearing for this case was held.

Petition

The formal written application filed by a party (the petitioner) to a legal body, initiating a case. Ms. Ganer filed her petition with the Department on or about May 20, 2020.

Petitioner

The party who initiates a lawsuit or files a petition seeking a legal remedy. In this case, Laura B. Ganer.

Planned Community

A real estate development that includes common property and is governed by a homeowners’ association, with rules established by CC&Rs.

Preponderance of the Evidence

The evidentiary standard required to win a civil case, defined as proof that a contention is “more probably true than not.” It is a lower standard than “beyond a reasonable doubt.”

Restrictive Covenant

A provision in a deed or CC&R that limits the use of real property. In Arizona, if unambiguous, such covenants are enforced to give effect to the intent of the parties.

Respondent

The party against whom a petition is filed or who is responding to a lawsuit. In this case, the Vincenz Homeowners Association.

3 Surprising Lessons from One Homeowner’s Fight Against Her HOA’s New Parking Rules

For millions of homeowners, the relationship with their Homeowners Association (HOA) is often defined by a single, persistent source of frustration: parking rules. Whether it’s restrictions on street parking, rules about commercial vehicles, or limits on guest parking, these regulations are a frequent flashpoint for community disputes. We tend to think of these fights as homeowners pushing back against ever-tightening restrictions.

But what happens when the script is flipped? In a fascinating legal case from Arizona, a homeowner named Laura Ganer took her HOA to court not because the rules were too strict, but because the board enacted a new, more permissive parking policy. She believed the board had overstepped its authority by allowing on-street parking that had previously been forbidden.

The resulting decision from the Administrative Law Judge provides a masterclass in HOA governance. It peels back the layers of community documents to reveal how power is delegated and exercised. The outcome holds several surprising lessons for any homeowner who thinks they understand the rules of their community.

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1. The Devil in the Details: How a “Restriction” Became a Permission Slip

At the heart of Ms. Ganer’s case was her belief that the community’s founding documents—the Covenants, Conditions, and Restrictions (CC&Rs)—were written to severely limit on-street parking. She pointed to what seemed like a clear and unambiguous rule in the Vincenz Homeowners Association (VHA) governing documents.

The rule, found in VHA CC&R Article 10 § 10.11.1, begins with a strong prohibition:

“No private passenger automobiles or pickup trucks shall be parked upon the Property or any roadway adjacent thereto except within a garage, in a private driveway appurtenant to a Dwelling Unit, or within areas designated for such purpose by the Board.”

For many residents, the rule’s intent seemed clear: keep cars in garages and driveways. The critical turn, however, lay not in the prohibition but in the exceptions that followed. The power was vested in a single, potent phrase authorizing the Board to act: “…or within areas designated for such purpose by the Board.” This clause, tucked at the end of the sentence, transformed a restrictive rule into a grant of discretionary power. The judge found this language gave the VHA Board explicit authority to create its new policy. This is a classic example of how governing documents are drafted to provide operational flexibility, allowing a future board to adapt to changing community needs without undergoing the arduous process of a full membership vote to amend the CC&Rs. The Board wasn’t breaking the rules; it was using a specific power granted to it all along.

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2. A Board Rule Isn’t a Bylaw Amendment (And Why It Matters)

Ms. Ganer raised two additional legal arguments. First, she contended that such a fundamental change to the community’s parking landscape was effectively an amendment to the CC&Rs. If it were an amendment, it would have required a community-wide vote and approval of “not less than sixty-seven percent (67%) of all Class A votes,” as stipulated in Article 12 § 2.

The VHA countered, and the judge agreed, that the Board was not amending the CC&Rs. Instead, it was exercising a power the document had already granted it in Article 10: the power to “designate” parking areas. Because the mechanism for the board to act was already in the foundational document, no amendment—and therefore no membership vote—was necessary.

Critically, Ms. Ganer also alleged a violation of Article 7 § 3 of the CC&Rs, which states that any “Association Rules shall be reasonable.” The VHA’s response to this claim was a deft legal maneuver. It argued that Article 7 § 3 did not apply because the Board didn’t adopt the parking policy under its general authority to make rules; it acted under the specific authority granted in Article 10. This distinction is vital in HOA governance, as it illustrates how a specific grant of power can sometimes bypass the general requirements that apply to other board actions.

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3. An Opinion Isn’t Proof: The Heavy Burden on the Homeowner

Ms. Ganer’s claim that the new policy was “unreasonable” because it allowed “parking virtually everywhere” was her attempt to prove a violation of Article 7 § 3. To an outside observer, this might seem like a fair point. But in a legal setting, a personal feeling of unreasonableness is not evidence.

The Administrative Law Judge noted that as the petitioner, Ms. Ganer had the “burden of proof” to show the HOA violated the CC&Rs “by a preponderance of the evidence.” This legal standard requires convincing proof, not just a strong opinion. The court document provides a clear definition:

“The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Ultimately, the judge concluded that Ms. Ganer failed to meet this burden. Her assertion that the rule was unreasonable could not overcome the VHA’s argument that it had acted within the specific authority granted by Article 10. She did not provide convincing evidence of a violation, and the judge found in favor of the HOA, dismissing her petition entirely.

——————————————————————————–

Conclusion: The Ultimate Authority Is in the Fine Print

This case serves as a powerful lesson in HOA law, illustrating a key principle of document hierarchy. The ultimate authority is not what seems fair or what was historically done, but the exact wording in the community’s governing documents. A specific grant of authority will almost always override arguments based on general principles.

Here, the specific power to “designate” parking areas in Article 10 trumped both the general procedural requirement for a 67% vote for amendments in Article 12 and the general principle that rules must be “reasonable” under Article 7. Ms. Ganer’s challenge failed because the Board’s actions, while contrary to her expectations, were perfectly aligned with the powers the CC&Rs had given it from the start.

This case is a powerful reminder to read the fine print. When was the last time you read your community’s governing documents, and what powers might you be surprised to find your board already has?

Case Participants

Petitioner Side

  • Laura B Ganer (petitioner)
    Appeared on behalf of herself.

Respondent Side

  • Mark B. Sahl (HOA attorney)
    Vincenz Homeowners Association

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    OAH
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Other Participants

  • Nicole Payne (recipient)
    Received transmission of the decision via US Mail.

Wendy Ellsworth v. Vincenz Homeowners’ Association

Posted on by

Case Summary

Case ID 20F-H2020043-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-09-08
Administrative Law Judge Velva Moses-Thompson
Outcome The petition concerning the alleged violation of CC&R section 10.11.1 by the HOA was dismissed because the Petitioner failed to meet the burden of proof, and the tribunal lacked jurisdiction over the declaratory judgment request regarding waiver of enforcement.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Wendy Ellsworth Counsel Brian Hatch
Respondent Vincenz Homeowners' Association Counsel Mark K. Sahl

Alleged Violations

VHA CC&R Article 10 § 10.11.1

Outcome Summary

The petition concerning the alleged violation of CC&R section 10.11.1 by the HOA was dismissed because the Petitioner failed to meet the burden of proof, and the tribunal lacked jurisdiction over the declaratory judgment request regarding waiver of enforcement.

Why this result: Petitioner failed to establish that VHA violated CC&R section 10.11.1 by a preponderance of the evidence. Furthermore, the tribunal lacked jurisdiction to rule on the declaratory judgment requested by the Petitioner regarding VHA's waiver of its enforcement rights.

Key Issues & Findings

Violation of CC&R Article 10, Section 10.11.1 regarding parking enforcement and waiver

Petitioner alleged VHA waived its right to enforce CC&R 10.11.1 (parking prohibition) because violations had been frequent since inception. The tribunal found Petitioner failed to establish VHA violated section 10.11.1, and the tribunal lacked jurisdiction regarding the requested declaratory judgment on waiver of enforcement.

Orders: The petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199(B)
  • ARIZ. REV. STAT. § 33-1803
  • ARIZ. REV. STAT. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • ARIZ. REV. STAT. § 32-2199.02(B)
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09

Analytics Highlights

Topics: HOA Enforcement, CC&R Violation, Parking, Waiver, Jurisdiction
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199(B)
  • ARIZ. REV. STAT. § 33-1803
  • ARIZ. REV. STAT. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • ARIZ. REV. STAT. § 32-2199.02(B)
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

20F-H2020043-REL Decision – 820839.pdf

Uploaded 2026-04-24T11:25:22 (95.4 KB)

20F-H2020043-REL Decision – 820839.pdf

Uploaded 2026-01-23T17:31:39 (95.4 KB)

Briefing: Ellsworth v. Vincenz Homeowners’ Association (No. 20F-H2020043-REL)

Executive Summary

This briefing analyzes the Administrative Law Judge Decision in the case of Wendy Ellsworth versus the Vincenz Homeowners’ Association (VHA). The case centered on Ms. Ellsworth’s petition alleging that the VHA had waived its right to enforce a specific parking restriction outlined in its Covenants, Conditions, and Restrictions (CC&Rs). The Administrative Law Judge dismissed the petition in its entirety.

The dismissal was based on two fundamental conclusions. First, the petitioner, Ms. Ellsworth, failed to meet her burden of proof. Her petition did not allege, nor did she provide evidence, that the VHA itself had violated the parking rule. Instead, her claim focused on the VHA’s alleged failure to enforce the rule against others. Second, and more decisively, the judge determined that the Office of Administrative Hearings (OAH) lacks the jurisdiction to issue a declaratory judgment. Ms. Ellsworth was effectively asking the tribunal to declare that the VHA had waived its enforcement rights, a legal determination beyond the OAH’s statutory authority. The VHA successfully argued that the OAH’s jurisdiction is limited to hearing alleged violations committed by the association, not to adjudicating the association’s future enforcement capabilities.

Case Background

• Petitioner: Wendy Ellsworth, a property owner within the Vincenz community.

• Respondent: Vincenz Homeowners’ Association (VHA).

• Tribunal: Arizona Office of Administrative Hearings (OAH).

• Presiding Judge: Administrative Law Judge Velva Moses-Thompson.

• Filing Date: Ms. Ellsworth filed a petition with the Arizona Department of Real Estate on or about January 15, 2020.

• Hearing Date: An evidentiary hearing was held on August 19, 2020.

• Decision Date: The final decision was issued on September 8, 2020.

The matter was referred to the OAH to determine whether VHA was in violation of its community documents as alleged by the petitioner.

Central Dispute: CC&R Article 10, Section 10.11.1

The entire dispute revolved around the enforcement of a specific vehicle parking rule within the VHA’s Covenants, Conditions, and Restrictions.

Article 10 § 10.11.1 provides:

Vehicles. No private passenger automobiles or pickup trucks shall be parked upon the Property or any roadway adjacent thereto except within a garage, in a private driveway appurtenant to a Dwelling Unit, or within areas designated for such purpose by the Board.

This provision explicitly restricts the parking of personal vehicles to approved locations: garages, private driveways, or other areas specifically designated by the VHA Board.

Positions of the Parties

Petitioner’s Position (Wendy Ellsworth)

Ms. Ellsworth’s central argument was not that the VHA had violated the parking rule, but that it had lost the ability to enforce it through inaction.

• Core Allegation: The petition claimed VHA had waived its ability to enforce Article 10, Section 10.11.1.

• Stated Rationale: Ms. Ellsworth intended to prove that “violations of the street parking prohibition have been ‘frequent’ since Vincenz’s inception” and that the community’s CC&Rs “do not contain a relevant non-waiver provision.”

• Testimony: At the August 19, 2020 hearing, Ms. Ellsworth initially testified that the VHA had never enforced the parking rule. However, under cross-examination, she later conceded that she was unsure whether the VHA had ever enforced it.

Respondent’s Position (Vincenz Homeowners’ Association)

The VHA argued for a complete dismissal of the petition, primarily on procedural and jurisdictional grounds.

• Core Argument: The petition failed to state a valid claim because it did not contend that VHA itself had improperly parked a vehicle in violation of the CC&Rs.

• Jurisdictional Challenge: VHA contended that the OAH’s jurisdiction, granted under ARIZ. REV. STAT. § 32-2199.01(A), is strictly limited to hearing petitions about alleged violations of community documents or state statutes by the association.

• Declaratory Judgment: The VHA characterized Ms. Ellsworth’s request as one for a “declaratory judgment”—a ruling on the VHA’s legal right to enforce the rule—which it argued the OAH has no legal authority to issue.

Administrative Law Judge’s Findings and Conclusions

The Administrative Law Judge (ALJ) sided entirely with the Respondent, concluding that the petition must be dismissed. The decision was based on a failure of proof by the petitioner and a critical lack of jurisdiction by the tribunal.

Legal Standards Applied

Standard

Description

Burden of Proof

The Petitioner bears the burden to prove a violation by a preponderance of the evidence.

Preponderance of the Evidence

Defined as “such proof as convinces the trier of fact that the contention is more probably true than not,” or evidence with “the most convincing force.”

Covenant Interpretation

In Arizona, unambiguous restrictive covenants are enforced to give effect to the intent of the parties and must be interpreted as a whole.

Conclusion 1: Failure to Establish a Violation

The ALJ found that Ms. Ellsworth failed to meet her burden of proof. The decision notes:

• Ms. Ellsworth “did not even allege that VHA parked an automobile or a truck in a roadway, garage, or in an area that has not been designated for parking by the Board.”

• Because no violation by the VHA was alleged or proven, the core requirement for a successful petition was absent.

Conclusion 2: Lack of Jurisdiction

The most significant finding was that the tribunal lacked the authority to grant the relief Ms. Ellsworth sought.

• The ALJ explicitly stated: “To the extent that Ms. Ellsworth is requesting a declaratory judgment that VHA has waived its right to enforce CC&R Article 10, Section 10.11.1., this tribunal does not have jurisdiction to make such a determination.”

• This conclusion affirmed the VHA’s central argument that the OAH is not the proper forum for determining an association’s prospective enforcement rights.

Final Order and Implications

Based on the findings, the final order was unambiguous:

“IT IS ORDERED, the petition is dismissed.”

The decision document includes a notice outlining the next steps available to the parties. Pursuant to Arizona Revised Statutes, the order is binding unless a party files a request for a rehearing with the Commissioner of the Department of Real Estate within 30 days of the service of the order.

Study Guide: Ellsworth v. Vincenz Homeowners’ Association (Case No. 20F-H2020043-REL)

This guide provides a comprehensive review of the Administrative Law Judge Decision in the case between Petitioner Wendy Ellsworth and Respondent Vincenz Homeowners’ Association (VHA). It covers the key facts, legal arguments, and the final ruling of the Office of Administrative Hearings (OAH).

——————————————————————————–

Review Quiz

Instructions: Answer the following questions in 2-3 sentences, based on the information provided in the case document.

1. Who were the primary parties in this case, and what were their respective roles?

2. What specific rule, or covenant, was at the center of the dispute?

3. What was the core allegation made by the petitioner, Wendy Ellsworth, in her initial petition?

4. What was the primary legal argument made by the respondent, Vincenz Homeowners’ Association, for why the petition should be dismissed?

5. What change occurred in Ms. Ellsworth’s testimony during the hearing?

6. According to the decision, what is the legal standard for the “burden of proof” in this type of hearing?

7. How does Arizona law interpret “restrictive covenants” when their language is unambiguous?

8. What two key reasons did the Administrative Law Judge give for dismissing the petition?

9. Which government body has jurisdiction to hear petitions from homeowners concerning violations of planned community documents?

10. What action could the parties take after the order was issued, and within what timeframe?

——————————————————————————–

Answer Key

1. The primary parties were Petitioner Wendy Ellsworth, a homeowner, and Respondent Vincenz Homeowners’ Association (VHA). Ms. Ellsworth initiated the legal action by filing a petition against the VHA.

2. The rule at the center of the dispute was Article 10, Section 10.11.1 of the VHA’s Covenants, Conditions, and Restrictions (CC&Rs). This section prohibits the parking of private passenger automobiles or pickup trucks on the property or adjacent roadways, except in garages, private driveways, or other Board-designated areas.

3. Ms. Ellsworth’s core allegation was that the VHA had waived its ability to enforce the street parking prohibition (CC&R 10.11.1). She claimed that violations had been “frequent” since the community’s inception and that the VHA’s CC&Rs lacked a relevant non-waiver provision.

4. The VHA argued that the petition should be dismissed because Ms. Ellsworth never alleged that the VHA itself had violated the parking rule. The VHA contended that the OAH only has jurisdiction over alleged violations by the association, not over a homeowner’s request for a declaratory judgment on the right to enforce a rule.

5. During the hearing, Ms. Ellsworth initially testified that the VHA had never enforced the parking rule. However, upon cross-examination, she admitted that she was unsure whether the VHA had ever enforced it.

6. The legal standard for the burden of proof is “a preponderance of the evidence.” This standard requires the petitioner to provide proof that convinces the trier of fact that their contention is more probably true than not.

7. In Arizona, if a restrictive covenant is unambiguous, it is enforced to give effect to the intent of the parties. The covenants must be construed as a whole and interpreted in view of their underlying purposes.

8. The judge dismissed the petition for two main reasons. First, Ms. Ellsworth failed to establish that the VHA itself had violated section 10.11.1. Second, the tribunal (the OAH) does not have the jurisdiction to issue a declaratory judgment stating that the VHA has waived its right to enforce the covenant.

9. The Arizona Department of Real Estate is the government body that receives petitions for hearings concerning violations of planned community documents. These hearings are then referred to the Office of Administrative Hearings (OAH).

10. After the order was issued on September 8, 2020, either party could file a request for a rehearing with the Commissioner of the Department of Real Estate. This request had to be filed within 30 days of the service of the Order.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed for longer, more analytical responses. Use the facts and legal principles from the case to construct your arguments. No answer key is provided.

1. Explain the concept of “waiver” as argued by the petitioner. Why was this argument ultimately ineffective before the Office of Administrative Hearings in this specific case?

2. Analyze the jurisdictional limitations of the Office of Administrative Hearings (OAH) as demonstrated in this decision. Discuss the difference between adjudicating a violation of community documents and issuing a declaratory judgment.

3. Describe the “preponderance of the evidence” standard and explain how the petitioner, Wendy Ellsworth, failed to meet this burden of proof. Consider both her initial claim and her testimony during the hearing.

4. Evaluate the petitioner’s legal strategy. What was the central flaw in her petition that prevented the Administrative Law Judge from ruling on the merits of her non-enforcement claim?

5. Based on the legal precedent cited (Powell v. Washburn), discuss the principles Arizona courts use to interpret CC&Rs. How did the judge apply this principle to the specific language of Article 10, Section 10.11.1?

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official (in this case, Velva Moses-Thompson) who presides over hearings at an administrative agency (like the OAH) and issues decisions.

Affirmative Defense

A set of facts other than those alleged by the petitioner which, if proven by the respondent, defeats or mitigates the legal consequences of the respondent’s otherwise unlawful conduct.

ARIZ. REV. STAT. (A.R.S.)

Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona.

Burden of Proof

The obligation on a party in a legal case to prove their allegations. In this case, the petitioner had the burden to prove the VHA violated its CC&Rs.

Covenants, Conditions, and Restrictions. These are the governing legal documents that set up the rules for a planned community or subdivision.

Declaratory Judgment

A binding judgment from a court defining the legal relationship between parties and their rights in a matter before any actual harm has occurred. The OAH determined it lacked jurisdiction to issue such a judgment in this case.

Jurisdiction

The official power to make legal decisions and judgments. The OAH’s jurisdiction was limited to hearing alleged violations of community documents, not requests for declaratory judgments.

Office of Administrative Hearings (OAH)

The state agency where the evidentiary hearing for this case was held. It conducts hearings for other state agencies.

Petitioner

The party who initiates a lawsuit or files a petition to start a legal action. In this case, Wendy Ellsworth.

Preponderance of the Evidence

The standard of proof in most civil cases, meaning that the evidence presented is more convincing and likely to be true than not. It is a lower standard than “beyond a reasonable doubt.”

Respondent

The party against whom a petition is filed; the party who must respond to the petitioner’s claims. In this case, Vincenz Homeowners’ Association.

Restrictive Covenant

A provision in a deed or a set of CC&Rs that limits the use of the property and prohibits certain uses.

Waiver

The intentional or voluntary relinquishment of a known right. The petitioner argued that the VHA, through its inaction, had waived its right to enforce the parking rule.

Why This Homeowner’s Lawsuit Against Her HOA Was Doomed From the Start: 3 Critical Lessons

The frustration is real. You see your neighbors breaking the rules—parking on the street, letting their lawn go—and it feels like your Homeowners’ Association (HOA) is doing nothing about it. This sense of inconsistent enforcement is one of the most common complaints homeowners have. For Wendy Ellsworth, this frustration led her to file a legal petition against the Vincenz Homeowners’ Association (VHA).

Her case, however, was dismissed. It wasn’t lost on a minor technicality or a surprise piece of evidence. It was doomed from the start because of fundamental strategic errors. By examining where she went wrong, we can uncover three powerful lessons for any homeowner considering a similar fight.

Lesson 1: You Must Accuse the Right Party of the Right Violation

Ms. Ellsworth’s core grievance was that the VHA was not enforcing its own on-street parking rules against other residents. Her formal petition, however, made a critical mistake: it accused the HOA itself of violating the community’s parking rule, CC&R Article 10 § 10.11.1.

This was a fatal flaw. That specific rule governs the actions of homeowners—prohibiting them from parking automobiles or trucks on roadways except in designated areas. It places no duty on the HOA. In her legal filing, Ms. Ellsworth failed to point to any specific rule that the HOA, as an entity, had actually broken. Her petition essentially accused the HOA of illegally parking a car, which was not her complaint at all. The judge noted this fundamental disconnect:

“Ms. Ellsworth did not even allege that VHA parked an automobile or a truck in a roadway, garage, or in an area that has not been designated for parking by the Board.”

A viable petition would have needed to identify a completely different rule—one that placed a specific duty on the HOA Board to enforce the community documents—and then allege that the Board had violated that duty. This fundamental error of misidentifying the violation was compounded by the fact that she was asking the tribunal for a remedy it had no power to grant. Accusing the wrong party of breaking the wrong rule can cause an entire case to be dismissed before its merits are even considered.

Lesson 2: The “Burden of Proof” is More Than Just a Legal Phrase

In any legal action, the person making the claim (the “petitioner”) has the “burden of proof.” This means it is their responsibility to present evidence that convinces the judge their claim is true. Ms. Ellsworth, as the petitioner, was responsible for proving her case by a “preponderance of the evidence.”

The court defined this standard as:

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

Making an accusation is easy; proving it is hard. Ms. Ellsworth’s own testimony failed to meet this standard. At the hearing, she initially testified that the VHA had never enforced the parking rule. However, when questioned further during cross-examination, she admitted that she was “unsure” whether the HOA had ever enforced it. This admission transformed her claim from an assertion of fact into mere speculation. In court, “I’m unsure” is the equivalent of having no evidence at all on that point, making it impossible for the judge to conclude her version of events was “more probably true than not.”

The lesson here is that winning requires more than just a belief you are right. You must present evidence that is solid, consistent, and more convincing than the other side’s. Weak or self-contradictory testimony undermines your own credibility and makes it nearly impossible to meet the burden of proof.

Lesson 3: You Have to Knock on the Right Legal Door

The legal system is highly specialized, and different courts and tribunals have the authority—or “jurisdiction”—to hear different types of cases. A major part of Ms. Ellsworth’s petition was the request for a “declaratory judgment,” essentially asking the judge to declare that the VHA had waived its right to enforce the parking rule in the future because of its alleged past non-enforcement.

The problem was that she brought this request to the wrong venue. The Office of Administrative Hearings (OAH) is designed to answer a simple question: “Did the HOA violate an existing rule?” Ms. Ellsworth was asking a far more complex question: “Based on past behavior, should the court declare that this rule is no longer enforceable in the future?” That forward-looking request for a “declaratory judgment” belongs in a court of general jurisdiction (like a state Superior Court), which has broader powers to interpret contracts and establish future rights, not in a specialized administrative tribunal.

The Administrative Law Judge made this point unequivocally:

“To the extent that Ms. Ellsworth is requesting a declaratory judgment that VHA has waived its right to enforce CC&R Article 10, Section 10.11.1., this tribunal does not have jurisdiction to make such a determination.”

Even if her argument about waiver had merit, it was brought before a body that was legally powerless to grant her request. This serves as a crucial reminder: filing a case in the wrong court is an automatic loss. Understanding the specific jurisdiction of the court or tribunal you are petitioning is a non-negotiable step in legal strategy.

Conclusion: Thinking Like a Lawyer, Not Just a Homeowner

Ms. Ellsworth’s case failed not because of three separate errors, but because of a single, comprehensive breakdown in legal strategy. The “what” (the specific accusation), the “how” (the burden of proof), and the “where” (the legal venue) were all fundamentally misaligned with her ultimate goal. This misalignment created a case that was legally impossible to win, regardless of how valid her underlying frustration may have been.

While a homeowner’s anger may be entirely justified, this case demonstrates that passion alone doesn’t win lawsuits. A sound legal strategy is essential. Before you challenge your HOA, have you moved past the frustration to build a case that can actually win?

Case Participants

Petitioner Side

  • Wendy Ellsworth (petitioner)
    Testified at hearing
  • Brian Hatch (petitioner attorney)
    Brian A. Hatch PLLC

Respondent Side

  • Mark K. Sahl (HOA attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP

Neutral Parties

  • Velva Moses-Thompson (ALJ)
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Samuel T Paparazzo v. Coronado Ranch Community Association

Posted on by

Case Summary

Case ID 20F-H2020061-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-09-03
Administrative Law Judge Jenna Clark
Outcome The Administrative Law Judge concluded that the Respondent HOA acted within the scope of its statutory authority during its April 02, 2020, annual meeting and elections, and denied the Petitioner's petition for failure to sustain the burden of proof regarding alleged statutory and bylaw violations.
Filing Fees Refunded $2,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Samuel T Paparazzo Counsel —
Respondent Coronado Ranch Community Association Counsel Mark Stahl, Esq.

Alleged Violations

ARIZ. REV. STAT. §§ 33-1804(A), 33-1804(B), 33-1804(F), and Association bylaws 2.3, 2.7, and 3.1

Outcome Summary

The Administrative Law Judge concluded that the Respondent HOA acted within the scope of its statutory authority during its April 02, 2020, annual meeting and elections, and denied the Petitioner's petition for failure to sustain the burden of proof regarding alleged statutory and bylaw violations.

Why this result: The ALJ found that notice of the meeting modification (to an online platform due to COVID-19) was timely and proper, and Petitioner's claimed denial of the right to speak was the result of user error of the online platform, not action by the Association. Furthermore, the decision to hold elections for all five open Board positions was deemed appropriate due to carryover vacancies resulting from a lack of quorum in the prior year (2019).

Key Issues & Findings

Alleged violations regarding Annual Meeting notice (change in venue), right to speak, proper call to order, and staggered board voting.

Petitioner filed a quadruple-issue petition alleging the Association violated statutes and bylaws concerning the April 02, 2020, annual meeting, specifically regarding insufficient notice for the venue change (due to COVID-19), denial of the right to speak (via online chat), improper chair delegation, and failure to stagger Board elections.

Orders: Petitioner’s petition is denied.

Filing fee: $2,000.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1804(A)
  • ARIZ. REV. STAT. § 33-1804(B)
  • ARIZ. REV. STAT. § 33-1804(F)
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. ADMIN. CODE R4-9-117
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov

Analytics Highlights

Topics: COVID-19, Virtual Meeting, Notice, Right to Speak, Elections, Bylaws, Quorum, User Error
Additional Citations:

  • ARIZ. REV. STAT. § 33-1804(A)
  • ARIZ. REV. STAT. § 33-1804(B)
  • ARIZ. REV. STAT. § 33-1804(F)
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. ADMIN. CODE R4-9-117

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Video Overview

Audio Overview

Decision Documents

20F-H2020061-REL Decision – 819907.pdf

Uploaded 2026-04-24T11:27:49 (149.3 KB)

20F-H2020061-REL Decision – 819907.pdf

Uploaded 2026-01-23T17:33:45 (149.3 KB)

Briefing Document: Paparazzo v. Coronado Ranch Community Association (Case No. 20F-H2020061-REL)

Executive Summary

This document synthesizes the findings from the Administrative Law Judge Decision in the matter of Samuel T. Paparazzo versus the Coronado Ranch Community Association. The central conclusion of the proceeding is the denial of the Petitioner’s claims. The Administrative Law Judge (ALJ) determined that the Petitioner failed to prove by a preponderance of the evidence that the Association violated Arizona state statutes or its own governing bylaws in the conduct of its April 2, 2020, annual meeting.

The critical takeaways from the decision are as follows:

• Meeting Format and Notice: The Association’s decision to move its annual meeting to a virtual platform (ClickMeeting) was deemed a lawful and appropriate response to the COVID-19 pandemic and the Arizona Governor’s related executive orders. The notification methods, which included physical signs and multiple emails, were found to be sufficient.

• Right to Speak: The Petitioner’s claim that he was denied the right to speak because he was “blocked” from the online chat feature was dismissed. The ALJ concluded the issue stemmed from “user error”—the Petitioner typed messages but failed to transmit them by pressing ‘enter’ or ‘send’. The fact that 26 other members successfully used the chat feature demonstrated its functionality.

• Meeting Conduct: The Association’s president properly called the meeting to order before delegating chairing responsibilities to the Association’s Managing Agent, an action the Petitioner conceded was within the president’s authority.

• Board Elections: The election of all five Board of Director positions simultaneously, rather than in staggered terms, was justified by unique circumstances. The Association’s 2019 annual meeting failed to achieve a quorum, preventing an election and resulting in a “carryover of open seats,” which necessitated filling all positions in the 2020 election.

Ultimately, the ALJ found that the Association and its Board acted within the scope of their statutory authority and that the challenges raised by the Petitioner were without merit.

I. Case Overview

This briefing analyzes the Administrative Law Judge Decision issued on September 3, 2020, following an evidentiary hearing held on August 18, 2020.

• Case Number: 20F-H2020061-REL

• Presiding Judge: Administrative Law Judge Jenna Clark

• Petitioner: Samuel T. Paparazzo (Homeowner and Association Member)

• Respondent: Coronado Ranch Community Association (HOA)

• Central Issue: The core of the dispute was whether the Coronado Ranch Community Association violated Arizona Revised Statutes and specific sections of its own bylaws during its annual meeting on April 2, 2020.

II. Petitioner’s Allegations

On May 15, 2020, Samuel Paparazzo filed a quadruple-issue petition alleging that the Association committed the following violations:

1. Improper Notice of Meeting: Providing less than 10-days’ notice regarding a “change in venue” for the annual meeting to only a small portion of the membership, in violation of ARIZ. REV. STAT. § 33-1804(B) and Association Bylaw 2.3.

2. Denial of Right to Speak: Preventing the Petitioner from exercising his right to speak by “blocking” or otherwise disabling his use of the online “chat feature” during the virtual meeting, in violation of ARIZ. REV. STAT. § 33-1804(A).

3. Improper Meeting Conduct: Failing to properly call the annual meeting to order, in violation of Association Bylaw 2.7.

4. Improper Board Election: Conducting the Board of Directors election without the “staggered” terms required by the bylaws, in violation of Association Bylaw 3.1.

III. Factual Chronology and Key Evidence

The decision outlines a clear sequence of events, heavily influenced by the onset of the COVID-19 pandemic.

Feb. 20, 2020

The Association issues its initial notice for the annual meeting, scheduled for April 2, 2020, at Coronado Elementary School.

Mar. 12, 2020

The Association mails election ballots to all Members.

Mar. 19, 2020

Arizona Governor Douglas Ducey issues Executive Order 2020-09, limiting certain business operations to slow the spread of COVID-19.

~Mar. 25, 2020

The Association’s President, Bob Hicks, officially moves the meeting to the virtual ClickMeeting platform.

Mar. 25 – Apr. 1

The Association notifies Members of the change via 12 signs at 6 community entrances and three separate email blasts to approximately 750 Members, which had an average open rate of 63.53%.

Mar. 30, 2020

Governor Ducey issues Executive Order 2020-18, the “Stay Home, Stay Healthy, Stay Connected” order.

Apr. 1, 2020

Two signs are placed at the entrance to the original meeting location, Coronado Elementary School, informing of the change.

Apr. 2, 2020

The Annual Meeting is held via ClickMeeting.
• President Hicks calls the meeting to order and then appoints Managing Agent Kevin Bishop to chair the remainder of the meeting.
• A quorum is achieved based on attendees and absentee ballots.
• An election is held for all 5 open Board positions due to a lack of quorum at the 2019 meeting.
• The Petitioner types messages in the chat window but fails to hit “enter” or click “send” to transmit them. He receives no response to an email for help sent during the meeting.
• At least 26 other Members successfully use the chat feature.

IV. Analysis of Key Issues and Legal Conclusions

The Administrative Law Judge systematically addressed and dismissed each of the Petitioner’s four allegations, concluding that the Board acted lawfully and within its authority.

A. Meeting Notice and Venue Change

• Alleged Violation: ARIZ. REV. STAT. § 33-1804(B) and Bylaw 2.3 (Notice of Meetings).

• Finding: The petition was denied on this point. The ALJ concluded that the notice of the Association’s 2020 annual meeting was “timely and properly noticed.” The move to an online platform was not an arbitrary venue change but a necessary and reasonable measure to comply with the Governor’s executive orders related to the COVID-19 pandemic.

• Supporting Evidence:

◦ The Association made a multi-faceted effort to inform Members through physical signs and repeated emails.

◦ The Petitioner received notice of the modification and, crucially, “failed to raise an objection prior to or during the meeting at issue.”

◦ A Member’s attendance at a meeting waives objections to defective notice, as stated in Bylaw 2.3.

B. Right to Speak

• Alleged Violation: ARIZ. REV. STAT. § 33-1804(A) (Open Meetings and Member Participation).

• Finding: The petition was denied on this point. The ALJ determined the Petitioner’s inability to communicate during the meeting was the result of “user error” and not a deliberate act by the Association to silence him.

• Supporting Evidence:

◦ The Petitioner wrote messages but never finalized the action by hitting the “enter” key or clicking the “send” button.

◦ The chat feature was demonstrably functional, as it was “successfully used by no less than 26 other Members during the annual meeting.”

◦ The decision explicitly states, “The Association is not responsible for Petitioner’s lack of ClickMeeting proficiency.”

C. Conduct of Meeting

• Alleged Violation: Bylaw 2.7 (Organization and Conduct of Meeting).

• Finding: The petition was denied on this point. The meeting was lawfully conducted.

• Supporting Evidence:

◦ The Association President, Bob Hicks, called the meeting to order and took roll before appointing Managing Agent Kevin Bishop to chair the rest of the meeting.

◦ The Petitioner “conceded during cross-examination that President Hicks had the authority task Agent Bishop with chairing the annual meeting.”

D. Board of Directors Election

• Alleged Violation: Bylaw 3.1 (Number and Terms of Office).

• Finding: The petition was denied on this point. The election for all five Board seats was deemed “lawful and appropriate given the circumstances.”

• Supporting Evidence:

◦ The bylaw’s provision for staggered terms could not be implemented because the 2019 annual meeting lacked a quorum, which meant no election took place that year.

◦ This lack of a 2019 vote “resulted in a carryover of open seats,” necessitating a vote for all five Board positions in 2020.

◦ The Petitioner “admitted that it had not been possible for the Association to stagger Board electees in the 2020 vote because no quorum had been reached to vote in 2019.”

V. Final Order and Disposition

Based on the findings of fact and conclusions of law, the Administrative Law Judge issued a final order.

• Order: “IT IS ORDERED that Petitioner’s petition be denied.”

• Legal Standard: The Petitioner bore the burden of proving his case by a “preponderance of the evidence.” The ALJ concluded that the record did not establish any violations and that the Petitioner “failed to sustain his burden of proof in this matter.”

• Date of Order: The decision was issued on September 3, 2020.

Study Guide: Paparazzo v. Coronado Ranch Community Association

This guide is designed to review the key facts, legal arguments, and conclusions presented in the Administrative Law Judge Decision for case number 20F-H2020061-REL, Samuel T Paparazzo v. Coronado Ranch Community Association.

Short-Answer Quiz

Answer the following questions in 2-3 sentences, based on the information provided in the case document.

1. Who were the primary parties in this case, and what were their roles?

2. What were the four specific allegations the Petitioner made against the Association regarding its Annual Meeting?

3. How did the Association notify its members of the change from an in-person meeting to a virtual one?

4. What was the legal justification for the Association’s decision to move the Annual Meeting to an online platform?

5. What evidence was presented to counter the Petitioner’s claim that he was “blocked” from using the online chat feature?

6. According to the Association’s bylaws, who has the authority to chair the annual meeting and delegate that responsibility?

7. Why did the 2020 Board of Directors election involve voting for all five open positions instead of being staggered?

8. What is the “preponderance of the evidence” standard, and who bore the burden of proof in this hearing?

9. What two key Arizona Revised Statutes (ARIZ. REV. STAT.) relate to member meeting notices and the right to speak?

10. What was the final order issued by the Administrative Law Judge, and what was the core reasoning behind it?

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Answer Key

1. The primary parties were Samuel T. Paparazzo, the Petitioner, who is a property owner and member of the Association, and the Coronado Ranch Community Association, the Respondent, which is the homeowners’ association for the subdivision. The Petitioner brought the complaint, and the Respondent defended its actions.

2. The Petitioner alleged that: (i) inadequate notice of the “change in venue” was given; (ii) he was denied his right to speak by being blocked from the online chat feature; (iii) the meeting was not properly called to order; and (iv) the Board of Directors vote was not properly “staggered.”

3. The Association notified members of the move to the ClickMeeting platform by placing 12 signs at 6 common entrances, sending three separate emails to approximately 750 members, and placing 2 signs at the entrance of the originally scheduled location, Coronado Elementary School.

4. The legal justification was the need to comply with executive orders issued by Arizona Governor Douglas Ducey (2020-09, 2020-12, and 2020-18) to slow the spread of COVID-19. The online platform was adopted to allow homeowners to safely access the meeting while adhering to physical distancing mandates.

5. The evidence showed that the Petitioner wrote messages but never hit the “enter” key or “send” button to transmit them. Furthermore, the record indicates that no less than 26 other members successfully used the chat feature during the meeting.

6. According to Bylaw Section 2.7, the President of the Association, Bob Hicks, has the authority to call the meeting to order and chair it. The Petitioner conceded during cross-examination that President Hicks had the authority to delegate the chairing of the meeting to the Association’s Managing Agent, Kevin Bishop.

7. The election involved all five positions because a quorum had not been achieved at the Association’s 2019 annual meeting. This lack of a quorum prevented a vote from taking place, resulting in a carryover of all open board seats to the 2020 election.

8. A “preponderance of the evidence” is the standard of proof required, meaning the evidence must be more probably true than not. In this proceeding, the Petitioner, Samuel Paparazzo, bore the burden of proving his allegations by this standard.

9. ARIZ. REV. STAT. § 33-1804(B) requires notice to be sent not fewer than 10 nor more than 50 days in advance of a meeting. ARIZ. REV. STAT. § 33-1804(A) ensures that all meetings are open to members and that members are permitted to attend and speak at an appropriate time.

10. The final order was that the Petitioner’s petition be denied. The judge reasoned that the Petitioner failed to sustain his burden of proof, as the evidence showed the Association’s actions were lawful and appropriate responses to the circumstances, and the Petitioner’s inability to participate was due to user error.

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Essay Questions

The following questions are designed for deeper analysis of the case. No answers are provided.

1. Analyze the role of the COVID-19 pandemic and the associated executive orders in the events of this case. How did these external factors influence the Association’s actions and the Administrative Law Judge’s final decision?

2. The judge concluded that the Petitioner’s inability to use the chat function was due to “user error.” Discuss the evidence that supports this conclusion and explore the legal line between an association’s responsibility to provide access and a member’s responsibility to utilize the provided tools correctly.

3. Explain the relationship between the Association’s governing documents (CC&Rs and Bylaws) and Arizona state law (ARIZ. REV. STAT.). How did the judge use both to evaluate the legality of the Association’s handling of the annual meeting and election?

4. The Petitioner argued that the online platform constituted a “change in venue” that required more extensive notice. Based on the judge’s decision, evaluate the legal merits of this argument in the context of a virtual meeting necessitated by a public health crisis.

5. Discuss the concept of “quorum” as it applied to both the 2019 and 2020 annual meetings. How did the failure to achieve quorum in one year directly impact the procedures and outcome of the election in the following year?

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Glossary of Key Terms

Definition from Context

Administrative Law Judge (ALJ)

An independent judicial officer (Jenna Clark in this case) from the Office of Administrative Hearings who conducts evidentiary hearings and issues decisions on matters referred by state agencies like the Department of Real Estate.

ARIZ. REV. STAT.

Abbreviation for Arizona Revised Statutes, the collection of laws for the state of Arizona. Title 33, Chapter 16, Article 1 specifically regulates planned communities (homeowners’ associations).

Association

The Coronado Ranch Community Association, the homeowners’ association for the residential development in Gilbert, Arizona. It is governed by its CC&Rs and overseen by a Board of Directors.

Bylaws

The governing documents of the Association that detail the structure of day-to-day governance, including voting processes, quorum requirements, meeting provisions, and other operating guidelines.

Covenants, Conditions, and Restrictions. These form an enforceable contract between the Association and each property owner, empowering the Association to control certain aspects of property use within the development.

Declarant Control Period

An initial period in an association’s history where the developer (the “Declarant”) controls the Board of Directors. In this case, this period ended for the Association in 2005.

Department

The Arizona Department of Real Estate, the state agency authorized by statute to receive and decide petitions for hearings from members of homeowners’ associations.

The Office of Administrative Hearings, an independent state agency that was referred this matter to conduct an evidentiary hearing and decide the case.

Petitioner

Samuel T. Paparazzo, the property owner and Association member who filed the petition with the Department, alleging violations by the Association.

Preponderance of the Evidence

The burden of proof required in this hearing. It is defined as proof that convinces the trier of fact that a contention is “more probably true than not,” representing the greater weight of evidence.

Quorum

The minimum number of members required to be present or represented by ballot for a meeting to be valid and for votes to be taken. The failure to achieve quorum at the 2019 meeting resulted in a carryover of open board seats.

Respondent

The Coronado Ranch Community Association, the party against whom the petition was filed. The Respondent denied all allegations and was represented by legal counsel.

He Sued His HOA Over a Virtual Meeting—The Judge’s Ruling Contains 4 Critical Lessons for Every Homeowner

Introduction: The New Battlefield for Neighborhood Disputes

Cast your mind back to the chaotic spring of 2020. The world was locking down, businesses were scrambling to go remote, and the delicate social contracts of our neighborhoods were fraying. For millions living in Homeowners’ Associations, this meant the abrupt cancellation of in-person meetings, replaced by a frantic pivot to unfamiliar virtual platforms. In this pressure cooker of uncertainty and technical glitches, minor grievances quickly escalated into major legal battles.

The case of Paparazzo vs. Coronado Ranch Community Association is a quintessential legal drama of that era. A frustrated homeowner, believing he was silenced and his rights ignored during a virtual meeting, took his HOA to court. The judge’s decision, however, serves as a powerful cautionary tale. It distills four surprising and impactful lessons that every homeowner should understand as community governance becomes increasingly digital.

1. The Takeaway: You Can’t Claim You Were Silenced If You Forgot to Hit ‘Send’

The petitioner, Samuel Paparazzo, leveled a serious charge: that the HOA had denied his right to speak by “blocking” him from using the online chat feature during the annual meeting. In his view, this was an intentional act of suppression.

The digital evidence, however, told a very different story. While Mr. Paparazzo had typed several messages, he had never actually transmitted them by hitting the “enter” key or clicking the “send” button. While he did email for assistance during the meeting without receiving a timely response, the court found the chat feature was fully functional, proven by the fact that at least 26 other members used it successfully. The judge’s ruling was a stark lesson in digital accountability:

Petitioner’s inability to effectively communicate with the Association during the annual meeting was the result of user error. … The Association is not responsible for Petitioner’s lack of ClickMeeting proficiency.

This establishes a critical precedent for our digital age. The analysis here goes beyond simple “user error.” It suggests that a baseline of digital literacy is becoming a prerequisite for effective civic participation. Courts may have little sympathy for claims of disenfranchisement that stem from a failure to master the basic tools of modern communication.

2. The Takeaway: An Emergency Can Justify Last-Minute Changes

Next, the petitioner challenged the HOA on procedural grounds—a classic move in community disputes. He argued that the association failed to provide proper notice for the virtual meeting. The HOA had correctly noticed its in-person meeting for April 2, 2020, back on February 20. But by late March, holding that meeting had become impossible.

The judge’s response to this claim is a masterclass in how legal “reasonableness” can override rigid bylaws during a crisis. The court noted the rapidly evolving timeline of the pandemic: Governor Ducey issued executive orders limiting business operations on March 19, prohibiting the closure of essential services on March 23, and issuing the “Stay Home” order on March 30. Faced with these superseding government mandates, the HOA moved the meeting online on March 25.

Crucially, the HOA’s communication efforts were extensive and documented. They didn’t just send a single email. The board notified its members by:

• Placing 12 signs at 6 common entrances to the community.

• Sending three separate email blasts to approximately 750 members, which had an average open rate of 63.53%.

• Placing 2 additional signs at the entrance to the originally scheduled location, Coronado Elementary School.

The judge concluded that the HOA’s actions were a justifiable response to an unprecedented emergency. This wasn’t a board ignoring its rules; it was a board taking necessary steps to comply with government orders and protect its members, legally justifying the short-notice change in format.

3. The Takeaway: Just Showing Up Can Waive Your Right to Complain

This lesson hinges on a legal concept every homeowner must understand: waiver by attendance. Buried in the association’s bylaws was Section 2.3, which states: “A Member’s attendance at a meeting waives objection to the lack of notice or defective notice of the meeting.”

This is not mere legalese; it’s a common and powerful clause designed to ensure the finality of meetings. It prevents a member from strategically attending a meeting, remaining silent about a potential procedural flaw, and then launching a lawsuit later if they don’t like the outcome. The judge noted that the petitioner attended the virtual meeting but did not object to the notice “prior to or during” the event. By participating without raising a formal objection at the time, he legally accepted the meeting’s procedures and waived his right to challenge them later.

4. The Takeaway: The Past Can Haunt the Present

The petitioner’s final major complaint appeared to be a slam dunk: the election for the Board of Directors was not “staggered” as explicitly required by Bylaws Section 3.1. Instead of a mix of one- and two-year terms to ensure continuity, all five open board positions were elected at once. On its face, this was a clear violation.

But the reason for this anomaly demonstrates the domino effect of governance. The judge found that in the previous year, 2019, the association had failed to achieve a quorum for its annual meeting. Because there was no quorum, no vote could occur, creating a “carryover of open seats.” This failure in 2019 created a governance debt that had to be paid in 2020. The only lawful way to do so was to elect members to all five vacant positions. This shows that an HOA is a continuous legal entity; one year’s procedural failure doesn’t just disappear—it creates unusual but legally necessary circumstances the next.

Conclusion: A Final Thought for the Digital Neighborhood

The case of Paparazzo vs. Coronado Ranch Community Association offers a clear and compelling look at the collision between established community rules, the new realities of digital life, and the chaos of unforeseen global events. It shows that while bylaws and statutes provide a framework, their application can be shaped by emergencies, past events, and even a single user’s technical skills.

As our communities increasingly operate online, who bears the greater responsibility for ensuring effective communication—the organization hosting the meeting, or the individual attending it?

Case Participants

Petitioner Side

  • Samuel Paparazzo (petitioner)
    Also referred to as Samuel T Paparazzo

Respondent Side

  • Mark Stahl (HOA attorney)
    Coronado Ranch Community Association
    Also spelled Mark Sahl in source
  • Timothy Butterfield (HOA attorney)
    Coronado Ranch Community Association
  • Kevin Bishop (community manager)
    Coronado Ranch Community Association
    Appeared as a witness for Respondent; Also referred to as 'Agent Bishop' and chaired part of the annual meeting
  • Bob Hicks (HOA Board President)
    Coronado Ranch Community Association
    Delegated chairing of the annual meeting

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Debra K Morin v. Solera Chandler Homeowners’ Association, Inc.

Posted on by

Case Summary

Case ID 20F-H2020051-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2021-01-08
Administrative Law Judge Kay Abramsohn
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Debra K. Morin Counsel —
Respondent Solera Chandler Homeowners' Association, Inc. Counsel Lydia A. Perce Linsmeier, Esq.

Alleged Violations

CC&R Article 7, Section 7.1

Outcome Summary

The Administrative Law Judge ruled that Solera was in compliance with its governing documents, specifically CC&R Article 7, Section 7.1, concluding that the Board is the 'sole judge' regarding appropriate maintenance of AREAS. The Petitioner failed to meet the burden of proof, and the Rehearing Petition was dismissed.

Why this result: Petitioner failed to sustain her burden to establish a violation. The governing documents grant the Board 'the sole judge' authority over maintenance, and Petitioner did not provide legal support requiring the HOA to meet the homeowner maintenance standard.

Key Issues & Findings

Failure to maintain Areas of Association Responsibility (AREAS) in good condition and repair at all times

Petitioner alleged that Solera failed to maintain Areas of Association Responsibility (AREAS) in good condition and repair at all times, arguing that the same strict maintenance standard applied to homeowners (CC&R 7.2) should apply to the HOA (CC&R 7.1). The issue was heard on rehearing after the initial decision dismissed the petition.

Orders: The Administrative Law Judge concluded Solera was in compliance with its governing documents and was the prevailing party. Petitioner's appeal (Rehearing Petition) was dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. 33-1801 et seq.
  • A.R.S. §§ 32-2102
  • A.R.S. §§ 32-2199 et al.
  • A.R.S. § 32-2199.05
  • A.R.S. §§ 32-2199(2)
  • A.R.S. § 32-2199.01(D)
  • A.R.S. § 32-2199.02
  • A.R.S. § 41-1092
  • CC&R Article 7, Section 7.1
  • CC&R Article 7, Section 7.2
  • CC&R Article 9, Section 9.5
  • ARIZ. ADMIN. CODE R2-19-119
  • ARIZ. ADMIN. CODE R2-19-116

Analytics Highlights

Topics: HOA Dispute, CC&R Violation, Maintenance Standard, Areas of Association Responsibility, Rehearing, Sole Judge
Additional Citations:

  • A.R.S. 33-1801 et seq.
  • A.R.S. §§ 32-2102
  • A.R.S. §§ 32-2199 et al.
  • A.R.S. § 32-2199.05
  • A.R.S. §§ 32-2199(2)
  • A.R.S. § 32-2199.01(D)
  • A.R.S. § 32-2199.02
  • A.R.S. § 41-1092
  • CC&R Article 7, Section 7.1
  • CC&R Article 7, Section 7.2
  • CC&R Article 9, Section 9.5
  • ARIZ. ADMIN. CODE R2-19-119
  • ARIZ. ADMIN. CODE R2-19-116

Video Overview

Audio Overview

Decision Documents

20F-H2020051-REL Decision – 816310.pdf

Uploaded 2026-04-24T11:26:18 (199.6 KB)

20F-H2020051-REL Decision – 847175.pdf

Uploaded 2026-04-24T11:26:21 (246.5 KB)

Briefing Document: Morin v. Solera Chandler Homeowners’ Association

Executive Summary

This document synthesizes the findings from the Administrative Law Judge Rehearing Decision in the case of Debra K. Morin versus the Solera Chandler Homeowners’ Association, Inc. (Solera), dated January 8, 2021. The central dispute involved a homeowner’s allegation that the association failed to maintain its common areas in good condition and repair.

The Administrative Law Judge (ALJ) ultimately dismissed the petitioner’s case, finding conclusively in favor of the Solera HOA. The decision rested on a critical provision within the association’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs), which designates the Solera Board as the “sole judge as to the appropriate maintenance, repair and replacement” of all common areas. This clause grants the Board exclusive discretion, superseding an individual homeowner’s opinion on the timing or quality of maintenance.

Despite the petitioner presenting extensive photographic evidence documenting various maintenance issues, the ALJ concluded that this evidence failed to prove a violation of the governing documents. The petitioner did not meet her burden of proving by a preponderance of the evidence that the Board had acted outside its granted authority. The ruling affirms that the authority of the Board is explicitly elevated above that of an individual homeowner in matters of common area maintenance under the controlling legal documents.

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I. Case Background and Procedural History

The case originates from a petition filed by Debra K. Morin, a four-year resident of the Solera community, against the Solera Chandler Homeowners’ Association. The matter was adjudicated by the Arizona Office of Administrative Hearings (Tribunal).

A. Initial Petition

On March 12, 2020, Ms. Morin filed a two-issue petition with the Arizona Department of Real Estate, alleging that Solera, its Board of Directors, and its management company (Premier) had violated numerous governing documents, including the Articles of Incorporation, By-Laws, CC&Rs, and Rules & Regulations (R&Rs).

• Issue #1: Alleged that Solera did not permit “direct communication from homeowners” and sought to have this “policy” rescinded.

• Issue #2: Alleged that Solera was not providing oversight to the General Manager in maintaining the “Areas of Association Responsibility” (AREAS) in “good condition and repair at all times.” Specific complaints included uncontrolled weeds and poor maintenance of the Community Center and other common areas.

B. Procedural Developments

• Motion to Dismiss: Solera filed a Motion to Dismiss, arguing the issues were outside the Department of Real Estate’s jurisdiction.

• Withdrawal of Issue #1: At a May 20, 2020 hearing, the Tribunal noted its jurisdiction did not extend to non-governing documents like the Board’s Code of Ethics. Consequently, Ms. Morin withdrew Issue #1. The Tribunal denied the Motion to Dismiss for the remaining “bare-bones” maintenance allegation in Issue #2.

• Initial Decision (August 19, 2020): Following the original hearing, the ALJ issued a decision concluding that Solera was the “sole judge” regarding maintenance of the AREAS and had not violated its governing documents. The petition was dismissed.

• Rehearing Request (September 24, 2020): Ms. Morin filed a request for rehearing, citing irregularities in the proceedings, misconduct by the prevailing party, and arguing the decision was arbitrary and capricious, particularly in its interpretation of CC&R Article 7, Section 7.1.

• Rehearing Granted and Conducted: The Commissioner of the Arizona Department of Real Estate granted the rehearing, which was conducted telephonically on December 16, 2020.

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II. Core Arguments of the Parties

The fundamental conflict centered on the interpretation of the maintenance standards outlined in the community’s CC&Rs.

A. Petitioner’s Position (Debra K. Morin)

Ms. Morin’s case was built on the principle of equal application of maintenance standards.

• Central Argument: The same maintenance standard requiring homeowners to keep their lots “in good condition and repair at all times” (per CC&R Article 7, Section 7.2) must be applied equally to Solera’s responsibility for the common AREAS (per CC&R Article 7, Section 7.1).

• Core Belief: Because homeowners are given no discretion regarding delays in maintenance, Solera should not be able to take months to address reported issues.

• Evidence Presented: The petitioner submitted extensive documentation, including over 80 photographs (referenced in the rehearing as “310 pictures”), emails, and other documents. This evidence was intended to show persistent maintenance failures, including:

◦ Uncontrolled weeds in granite rock locations

◦ Poor exterior condition of the Community Center

◦ Deficiencies in street asphalt, storm drains, sidewalks, and curbing

◦ Water pooling and intrusion issues

◦ Exposed landscaping lights and irrigation lines

◦ Unremoved tree stumps

B. Respondent’s Position (Solera HOA)

Solera’s defense relied entirely on the specific authority granted to its Board by the governing documents.

• Central Argument: The association met its responsibilities, and the petitioner’s subjective opinions about what, when, or how maintenance should be done are irrelevant.

• Dispositive Legal Provision: Solera consistently cited CC&R Article 7, Section 7.1, which states the Board “shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS].”

• Interpretation: This provision grants the Board exclusive discretion and authority to determine the nature and timing of maintenance, insulating its decisions from a single homeowner’s critique.

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III. Analysis and Key Findings of the Administrative Law Judge

The Rehearing Decision provided a thorough review of the evidence and legal arguments, ultimately reinforcing the original ruling in favor of Solera.

A. The “Sole Judge” Clause and Board Authority

The ALJ’s conclusion hinged on the unambiguous language of the CC&Rs, which establishes a clear hierarchy of authority.

• CC&R Article 7, Section 7.1: This article was identified as the dispositive text. It states, in pertinent part: “the Board ‘shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS], but all [AREAS], and the Improvements located thereon, shall be maintained in good condition and repair at all times.'” The ALJ found that the “sole judge” provision grants the Board exclusive authority to determine how the “good condition and repair” standard is met.

• CC&R Article 9, Section 9.5: This section further strengthens the Board’s position by granting Solera the “exclusive right to construe and interpret the provisions of the [CC&Rs],” with its interpretation being “final, conclusive and binding.”

• Conclusion on Authority: The ALJ concluded that these provisions clearly lift the Board’s authority above that of an individual homeowner in determining appropriate maintenance.

B. Rejection of the “Equal Standard” Argument

The petitioner’s primary argument for an equal, non-discretionary standard for both the HOA and homeowners was explicitly rejected.

• The ALJ found that the petitioner “failed to provide legal support for her argument that the same maintenance standard is required to be applied to the Board as it is applied to a homeowner.”

• The governing documents themselves create different levels of authority and obligation for the Board versus individual owners.

C. Evaluation of Evidence and Burden of Proof

• Burden of Proof: The decision reiterates that the petitioner bears the burden of proving a violation by a “preponderance of the evidence.”

• Photographic Evidence: The ALJ acknowledged reviewing all photographs from both hearings. The decision states that this evidence successfully documented “the existence, at those dates embedded in the photographs, of items that deal with maintenance and repairs in various locations of Solera AREAS.”

• Failure to Prove a Violation: Crucially, while the photos proved maintenance issues existed, they did not prove a violation of the CC&Rs. Because the Board is the “sole judge,” the existence of a weed or a cracked curb does not automatically constitute a breach of its duties, as the Board retains discretion over the timeline and method of repair.

D. Jurisdictional Limitations

The decision affirmed the Tribunal’s limited jurisdiction, noting that many of the petitioner’s underlying frustrations were not legally actionable in this venue.

• Not Actionable: A homeowner’s dissatisfaction with the Board, its management company, or the General Manager is “not within the purview of this process or the jurisdiction of the Tribunal.”

• Irrelevant Documents: Arguments based on City of Chandler standards, the landscaping contract with Integrated Landscape Management (ILM), or Premier’s General Manager job description were deemed irrelevant, as the Tribunal’s review is limited to the association’s governing documents and applicable state statutes.

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IV. Final Order and Conclusion

Based on an exhaustive review of the record from both the original hearing and the rehearing, the Administrative Law Judge reached a definitive conclusion.

• Final Finding: The petitioner failed to sustain her burden of proof to establish a violation by Solera of the governing documents. The ALJ concluded that Solera is in compliance with its governing documents, including CC&R Article 7, Section 7.1.

• Order:

◦ IT IS ORDERED that Solera is the prevailing party with regard to the Rehearing, and Petitioner’s appeal is dismissed.

◦ The order was issued on January 8, 2021.

◦ As a decision issued after a rehearing, the order is binding on the parties. Any further appeal must be filed with the Superior Court within 35 days from the date of service.

Study Guide: Morin v. Solera Chandler Homeowners’ Association, Inc.

This guide provides a comprehensive review of the administrative rehearing case No. 20F-H2020051-REL-RHG, between Petitioner Debra K. Morin and Respondent Solera Chandler Homeowners’ Association, Inc. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms derived from the case documents.

Short-Answer Quiz

Answer each of the following questions in 2-3 sentences based on the information provided in the case decision.

1. Who were the primary parties in this case, and who represented them at the telephonic hearing on December 16, 2020?

2. What were the two initial issues Petitioner Debra K. Morin raised in her petition filed on March 12, 2020?

3. Why did the Petitioner withdraw Issue #1 from her petition during the May 20, 2020 hearing?

4. What was the Petitioner’s central argument regarding the maintenance standard that Solera should be held to?

5. What type of evidence did the Petitioner primarily present to document the alleged maintenance failures in the Areas of Association Responsibility (AREAS)?

6. What specific clause in the CC&Rs did Solera (the Respondent) rely on to defend its actions and decisions regarding maintenance?

7. What were the primary reasons the Commissioner of the Arizona Department of Real Estate granted the Petitioner’s request for a rehearing?

8. How did the Administrative Law Judge rule on the relevance of non-governing documents, such as the City of Chandler ordinances and the Premier Management Company job description?

9. What is the legal standard of proof that a petitioner must meet in these proceedings, and how is it defined in the decision?

10. What was the final conclusion and order of the Administrative Law Judge in the Rehearing Decision issued on January 8, 2021?

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Answer Key

1. The primary parties were the Petitioner, Debra K. Morin, who represented herself, and the Respondent, Solera Chandler Homeowners’ Association (Solera). Solera was represented by Lydia Linsmeier, Esq.

2. Issue #1 alleged that Solera did not allow direct communication from homeowners. Issue #2 alleged that Solera, its Board, and its management company were not providing proper oversight to maintain the Areas of Association Responsibility (AREAS) in good condition and repair.

3. The Petitioner withdrew Issue #1 after the Tribunal ruled that the statutory parameters of its jurisdiction did not include the interpretation or application of a non-governing document like the Board’s Code of Ethics. The allegations regarding ethics and mismanagement based on this code were therefore removed from consideration.

4. The Petitioner’s central argument was that the same maintenance standard must be applied to Solera as is applied to homeowners. She contended that just as homeowners are required by CC&R Article 7, Section 7.2 to maintain their lots in good condition at all times, Solera must be held to the same standard for common AREAS under CC&R Article 7, Section 7.1.

5. The Petitioner presented an “enormity” of photographic evidence to document the maintenance issues. The decision notes she presented over eighty photographs at the original hearing and an additional “310 pictures” were mentioned in the rehearing, showing weeds, debris, exposed wiring, and other issues at various dates.

6. Solera relied on CC&R Article 7, Section 7.1, which states that the Solera Board of Directors “shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS].” Solera argued that the Petitioner’s subjective opinions on maintenance were therefore not relevant.

7. The rehearing was granted for reasons outlined in the Petitioner’s request, which claimed: irregularities in the proceedings, misconduct by the prevailing party, and that the original decision was arbitrary, capricious, an abuse of discretion, not supported by evidence, or contrary to law.

8. The Judge ruled that such documents were not relevant or justiciable. City standards were not under review, and the management company’s job description and landscape contract were not Solera governing documents, so they could not be used to prove a violation of the association’s governing documents.

9. The petitioner bears the burden of proving their case by a “preponderance of the evidence.” This is defined as proof that convinces the trier of fact that the contention is more probably true than not, and it represents the greater weight of evidence.

10. The Administrative Law Judge concluded that the Petitioner failed to sustain her burden to establish a violation by Solera of the governing documents. The Judge found Solera to be the prevailing party, in compliance with CC&R Article 7, Section 7.1, and ordered that the Petitioner’s appeal be dismissed.

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Suggested Essay Questions

The following questions are designed to encourage deeper analysis of the case. No answers are provided.

1. Analyze the balance of power between a homeowner and an HOA as depicted in this case. Discuss how specific clauses in the CC&Rs, particularly Article 7 (Section 7.1) and Article 9 (Sections 9.5 and 9.9), grant authority to the Board and limit the recourse available to an individual owner within the association’s own framework.

2. Examine the role and limitations of evidence in this administrative hearing. Why was the Petitioner’s photographic evidence, despite its volume, ultimately insufficient to meet the burden of proof? Discuss the distinction made by the Tribunal between evidence of a maintenance issue and evidence of a violation of the governing documents.

3. The Petitioner argued for an equal application of the “maintenance standard” to both homeowners and the HOA, stating “[t]here must be equal consideration to have a valid contract.” Evaluate this argument in the context of the specific language found in the Solera CC&Rs. Is the concept of “equal consideration” legally applicable in the way the Petitioner suggests?

4. Discuss the jurisdiction of the Arizona Office of Administrative Hearings (the Tribunal) in HOA disputes as described in the decision. Explain why the Tribunal could rule on the maintenance of common areas but had to dismiss claims related to the Solera Code of Ethics, City of Chandler ordinances, and Premier Management’s internal documents.

5. Based on the findings of fact, trace the procedural journey of this case from the initial petition to the final rehearing order. Identify the key turning points, such as the Motion to Dismiss and the Order Granting Rehearing, and explain their impact on the scope and outcome of the dispute.

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Glossary of Key Terms

Definition from Source Context

Administrative Law Judge (ALJ)

The judicial authority, in this case Kay Abramsohn, who presides over hearings at the Office of Administrative Hearings, makes findings of fact, issues decisions, and conducts rehearings.

Areas of Association Responsibility (AREAS)

The common areas within the Solera community that the homeowners’ association is responsible for managing and maintaining. This includes landscaping, the Community Center exterior, street conditions, storm drains, sidewalks, walls, and curbing.

Articles of Incorporation

One of the governing documents of the Solera Chandler Homeowners’ Association, referenced as Solera Exhibit A.

By-Laws

One of the governing documents of the Solera Chandler Homeowners’ Association, referenced as Solera Exhibit B.

CC&Rs (Declaration of Covenants, Conditions, and Restrictions)

A primary governing document for the Solera at Springfield Lakes community. It outlines the rights and responsibilities of both the homeowners and the association.

Maintenance Standard

Defined in CC&R Article 1, Section 1.30 as “the standard of maintenance of Improvements established from time to time by the Board and/or the Architectural Review Committee in the Design Guidelines, or in the absence of any such standards, the standards of maintenance of Improvements generally prevailing through the Project.”

Motion to Dismiss

A formal request filed by a party (in this case, Solera) asking for a petition or case to be dismissed on the grounds that the issues are outside the Department’s jurisdiction or that the requested relief cannot be granted as a matter of law.

Petitioner

The party who initiates a legal action or petition. In this case, Debra K. Morin, a homeowner in the Solera community.

Preponderance of the Evidence

The standard of proof required for a petitioner to win in these proceedings. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”

Premier Management Company (Premier)

The management company hired by the Solera Board of Directors to handle duties including the oversight of a General Manager.

Project Documents

Defined in CC&R Article 1, Section 1.37 as the CC&Rs, any supplements to the CC&Rs, the By-Laws, the Rules and Regulations (R&Rs), and the Design Guidelines.

Respondent

The party against whom a petition is filed. In this case, the Solera Chandler Homeowners’ Association, Inc.

R&Rs (Rules and Regulations)

One of the governing documents of the Solera Chandler Homeowners’ Association, referenced as Solera Exhibit D.

Tribunal

A term used to refer to the Arizona Office of Administrative Hearings (OAH), the body responsible for conducting administrative hearings for disputes referred by the Arizona Department of Real Estate.

🧑‍⚖️

20F-H2020051-REL-RHG

1 source

This document presents an Administrative Law Judge Rehearing Decision regarding a dispute between Debra K. Morin (Petitioner) and the Solera Chandler Homeowners’ Association, Inc. (Respondent). The Petitioner initially filed a two-issue complaint with the Arizona Department of Real Estate alleging that the HOA had violated various governing documents, primarily concerning lack of direct homeowner communication and a failure to maintain Association Responsibility Areas (AREAS) in good condition. After the first issue was withdrawn due to jurisdictional limitations, the initial decision dismissed the petition, finding the HOA was the sole judge of appropriate maintenance under the Covenants, Conditions, and Restrictions (CC&Rs). This rehearing decision, granted due to claims of procedural irregularities and arbitrary findings, ultimately reaffirms the original dismissal, concluding that the Petitioner failed to meet the burden of proof to establish a violation of the governing documents.

Case Participants

Petitioner Side

  • Debra K. Morin (petitioner)
    Represented herself

Respondent Side

  • Lydia A. Perce Linsmeier (HOA attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
    Represented Solera Chandler Homeowners' Association
  • Denise Frazier (general manager/witness)
    Premier Management Company / Solera Chandler Homeowners' Association
    Solera's onsite general manager who testified

Neutral Parties

  • Kay Abramsohn (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge for both original and rehearing decisions
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Commissioner of the Arizona Department of Real Estate
  • Felicia Del Sol (administrative)
    Transmitted the original August 19, 2020 Decision

Susan E Abbass v. 10000 North Central Homeowners Assocciation

Posted on by

Case Summary

Case ID 20F-H2020057-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-08-17
Administrative Law Judge Adam D. Stone
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Susan E Abbass Counsel —
Respondent 10000 North Central Homeowners Association Counsel Blake Johnson, Esq.

Alleged Violations

CC&R's Article XII, Section 6 & Article XIII, Section 1(d) & 4

Outcome Summary

The Administrative Law Judge denied the Petitioner's single-issue petition, finding that the Petitioner failed to meet the burden of proof required to establish that the Respondent HOA violated the governing CC&R provisions.

Why this result: Petitioner failed to prove the alleged CC&R violations; specifically, the HOA was found to have the right to enter property for certain conditions (including emergencies or maintenance) but was under no obligation to do so, and the situation was not determined to be a true emergency by the ALJ.

Key Issues & Findings

Whether 10000 North Central Homeowners Association violated the CC&R's Article XII, Section 6 & Article XIII, Section 1(d) & 4.

Petitioner claimed the Association violated specified CC&R sections by refusing to grant access to the neighboring property to determine and resolve the source of a water leak. Petitioner requested an ORDER requiring the Association to allow access. The ALJ found that the CC&Rs grant the HOA the right to enter, but not the obligation, and Petitioner failed to prove an emergency situation or a violation of the CC&Rs.

Orders: Petitioner's petition in this matter was denied.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et al.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092
  • CC&R Article XII Section 6
  • CC&R Article XIII Section 1(d)
  • CC&R Article XIII Section 4

Analytics Highlights

Topics: HOA, CC&R, Easement, Maintenance, Drainage, Property Access, Burden of Proof
Additional Citations:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et al.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092
  • ARIZ. REV. STAT. § 41-1092.09
  • ARIZ. REV. STAT. Title 33, Chapter 16, Article 1
  • CC&R Article XII Section 6
  • CC&R Article XIII Section 1(d)
  • CC&R Article XIII Section 4

Video Overview

Audio Overview

Decision Documents

20F-H2020057-REL Decision – 839845.pdf

Uploaded 2026-01-23T17:32:59 (108.6 KB)

20F-H2020057-REL Decision – ../20F-H2020057-REL/815490.pdf

Uploaded 2026-01-23T17:33:02 (135.6 KB)

Briefing Document: Abbass vs. 10000 North Central Homeowners Association

Executive Summary

This document synthesizes the findings and final order from the Administrative Law Judge (ALJ) in case number 20F-H2020057-REL-RHG, a dispute between homeowner Susan E. Abbass (Petitioner) and the 10000 North Central Homeowners Association (Respondent). The core of the dispute was the Petitioner’s request for the HOA to compel an inspection of a neighboring property, believed to be the source of a recurring water leak into her home.

The ALJ ultimately dismissed the Petitioner’s case, ruling in favor of the Respondent. The decision hinged on a critical distinction within the community’s governing documents (CCR’s): while the HOA possesses the right to enter a property under certain conditions, it does not have an explicit obligation to do so. The Petitioner failed to provide sufficient evidence to prove the HOA had violated the CCR’s. The ALJ concluded that the HOA acted reasonably by contacting the neighbor and reviewing the provided information, and that forcing access without more definitive proof could expose the HOA to legal risk. The decision suggests the Petitioner may be pursuing relief in an incorrect venue or against the incorrect party.

Case Overview

Case Name

Susan E Abbass vs. 10000 North Central Homeowners Association

Case Number

20F-H2020057-REL-RHG

Jurisdiction

In the Office of Administrative Hearings (Arizona)

Administrative Law Judge

Adam D. Stone

Petitioner

Susan E. Abbass

Respondent

10000 North Central Homeowners Association (represented by Blake Johnson, Esq.)

Hearing Date

November 24, 2020 (Rehearing)

Decision Date

December 1, 2020

Core Dispute and Allegations

Petitioner’s Central Claim

The Petitioner, Susan E. Abbass, alleged that the HOA violated its Covenants, Conditions, and Restrictions (CCR’s) by failing to authorize an inspection on a neighboring property. The Petitioner’s home was experiencing water intrusion every time it rained, and she believed the leak originated from the adjacent lot.

• Alleged Violations: The petition cited violations of the CCR’s Article XII, Section 6 and Article XIII, Sections 1(d) and 4.

• Argument: The Petitioner contended that the recurring water leak constituted an “emergency” situation, obligating the HOA to act.

Petitioner’s Position and Evidence

• Financial Responsibility: The Petitioner stated she was “ready, willing and able to be financially responsible for the cost of any inspections/surveys which needed to be performed on the neighboring property.”

• Due Diligence: Inspections and surveys conducted on her own property determined that the leak was not originating from there.

• Frustration: The Petitioner noted that over a year had passed since the leaking first occurred with no resolution from the HOA or the neighbor.

• Key Concession: During the rehearing, the Petitioner “agreed that Respondent does not have an obligation to enter the property, only the right.”

Respondent’s Defense and Actions

Respondent’s Position

The HOA argued that it did not have sufficient evidence to justify compelling access to the neighboring property. The property manager, Robert Kersten, testified for the Respondent.

• Lack of Proof: The HOA determined that the information provided by the Petitioner did not meet the criteria for forcing entry onto the neighbor’s property.

• Legal Risk: The Respondent expressed concern that if it “overstepped its authority, it could open itself up to other causes of action.”

Actions Taken by the HOA

Despite denying the Petitioner’s request to force an inspection, the HOA took the following steps:

• It reached out to the neighboring property owner to request access.

• It sent a warning letter to the neighbor regarding “improper vegetation” on the property.

• It contacted the neighbor, who, upon information and belief, had her insurance company inspect the water flow. The insurance company reportedly determined the neighbor was not at fault.

• At the rehearing, the Respondent submitted photographic evidence (Exhibits K, L, and M) purportedly showing a fixed pipe and drainage moving away from the Petitioner’s property.

Procedural History and Rehearing

1. Petition Filed (May 5, 2020): Petitioner filed a single-issue petition with the Arizona Department of Real Estate.

2. Initial Hearing (July 28, 2020): The first hearing was conducted.

3. Initial Decision (August 17, 2020): The ALJ issued a decision concluding the Petitioner failed to meet her burden of proof, as the HOA only had the right to enter the property, not an obligation.

4. Rehearing Request (August 31, 2020): Petitioner requested a rehearing, claiming the decision was “arbitrary, capricious, or an abuse of discretion” and “not supported by the evidence or is contrary to law.”

5. Rehearing Granted (October 14, 2020): The Commissioner of the Arizona Department of Real Estate granted the rehearing request.

6. Rehearing Conducted (November 24, 2020): The ALJ conducted a new hearing to reconsider the evidence.

Administrative Law Judge’s Findings and Conclusions

Burden of Proof

The ALJ reiterated that the Petitioner bears the burden to prove the alleged violations by a “preponderance of the evidence,” defined as evidence with “the most convincing force” that is “sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

• Conclusion on Evidence: The ALJ found that on rehearing, the “Petitioner failed to provide new evidence or witness testimony demonstrating that Respondent violated Article XII and Article XIII of the CCR’s.”

Key Judicial Determinations

• Right vs. Obligation: The central legal conclusion is that the HOA’s authority is discretionary. The CCR’s grant a right to enter property but do not impose an obligation to do so upon a homeowner’s request.

• HOA’s Conduct: The judge determined that the HOA had acted appropriately and in compliance with the CCR’s. The decision notes, “Respondent was receptive to the information provided by Petitioner and requested the neighboring property owners cooperation. While the neighboring owner may not have fully cooperated to the liking of Petitioner, Respondent still followed the CCR’s to the best of its ability at this point.”

• Statutory Limitations on ALJ: The ALJ is bound by Arizona statute A.R.S. § 32-2199.02(A), which limits the judge’s authority to ordering a party to “abide by the statutes, condominium documents, community documents or contract provision at issue.” The ALJ concluded, “it too cannot force the neighbor or the Respondent to grant access to the property.”

• Incorrect Venue: The decision strongly suggests the Petitioner is pursuing the wrong legal remedy: “While the possibility of future leaking is certainly frustrating, it appears that Petitioner has or the incorrect venue and possibly party to grant the relief for which it seeks.”

Final Order and Implications

• Ruling: The ALJ ordered that “the Respondent is the prevailing party with regard to the rehearing, and Petitioner’s appeal is dismissed.”

• Binding Nature: As a result of a rehearing, the administrative law judge order is binding on the parties.

• Appeal Process: Any party wishing to appeal the order must seek judicial review by filing with the superior court within thirty-five days from the date the order was served.

Study Guide: Abbass v. 10000 North Central Homeowners Association

This study guide provides a comprehensive review of the Administrative Law Judge Decision in case number 20F-H2020057-REL-RHG, involving Petitioner Susan E. Abbass and Respondent 10000 North Central Homeowners Association. It includes a short-answer quiz with an answer key, suggested essay questions, and a glossary of key terms to facilitate a thorough understanding of the case’s facts, legal arguments, and procedural history.

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Short Answer Quiz

Instructions: Answer the following questions in 2-3 sentences based on the information provided in the case document.

1. Who were the primary parties in this case, and what was the central dispute?

2. What specific articles of the community documents did the Petitioner allege the Respondent had violated?

3. What was the outcome of the initial administrative hearing held on July 28, 2020?

4. On what legal grounds did the Petitioner successfully request a rehearing of the case?

5. What was the Respondent’s main argument for not forcing an inspection of the neighboring property?

6. What key point regarding the Respondent’s authority did the Petitioner concede during the rehearing?

7. According to the decision, who bears the burden of proof, and what is the evidentiary standard required to meet it?

8. What evidence did the Respondent introduce during the rehearing on November 24, 2020?

9. What was the final ruling of the Administrative Law Judge, and what did the order state?

10. What specific limitation on the Administrative Law Judge’s power is cited in the Conclusions of Law?

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Answer Key

1. The primary parties were the Petitioner, Susan E. Abbass, and the Respondent, 10000 North Central Homeowners Association. The central dispute was the Petitioner’s claim that the Respondent failed to fulfill its duty by not allowing an inspection on a neighboring property to find the source of a water leak affecting the Petitioner’s home.

2. The Petitioner alleged that the Respondent had violated Article XII, Section 6 and Article XIII, Sections 1(d) and 4 of the Covenants, Conditions, and Restrictions (CCR’s).

3. Following the July 28, 2020 hearing, the Administrative Law Judge issued a decision on August 17, 2020, concluding that the Petitioner had failed to meet her burden of proof. The judge found that the Respondent only had the right to enter the neighboring property, not an obligation to do so.

4. The Petitioner’s request for rehearing was granted based on her claims that the initial findings of fact were “arbitrary, capricious, or an abuse of discretion” and that the decision was “not supported by the evidence or is contrary to law.”

5. The Respondent argued that the Petitioner had not provided sufficient proof of the neighbor’s fault to justify forcing access. The Respondent was also concerned that overstepping its authority could expose the association to other legal actions.

6. During the rehearing, the Petitioner agreed with the Respondent’s position that the association does not have an obligation to enter the neighboring property, only the right to do so.

7. The Petitioner bears the burden of proof. The evidentiary standard is “preponderance of the evidence,” which is defined as proof that convinces the trier of fact that a contention is more probably true than not.

8. At the rehearing, the Respondent introduced Exhibits K, L, and M. These were photographs that purportedly showed where a pipe was fixed and how drainage moves away from the Petitioner’s property.

9. The final ruling concluded that the Respondent had not violated the CCR’s and was the prevailing party. The order dismissed the Petitioner’s appeal.

10. The decision cites A.R.S. § 32-2199.02(A), which states that an Administrative Law Judge may only order a party to abide by the statutes, community documents, or contract provisions at issue. The judge cannot force the Respondent or the neighbor to grant access to the property.

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Suggested Essay Questions

Instructions: The following questions are designed for a more in-depth, essay-format response. Answers are not provided.

1. Analyze the legal distinction between a “right” and an “obligation” as it pertains to the Homeowners Association’s authority under the CCR’s in this case. How was this distinction central to the Administrative Law Judge’s final decision?

2. Discuss the concept of “preponderance of the evidence” as defined in the legal decision. Detail the evidence and arguments presented by both the Petitioner and Respondent, and explain why the judge ultimately concluded that the Petitioner failed to meet this standard.

3. Trace the complete procedural history of this case, from the filing of the initial petition to the final order. Identify the key dates, actions taken by each party, and the rulings made at each stage of the administrative process.

4. Evaluate the actions taken by the Respondent (10000 North Central Homeowners Association) in response to the Petitioner’s complaint. Based on the Findings of Fact, did the association act reasonably and in compliance with the CCR’s?

5. Explain the jurisdiction and statutory limitations of the Office of Administrative Hearings in resolving disputes between homeowners and their associations, as outlined in the decision. What remedies were available to the Petitioner through this venue, and why was the specific relief she sought beyond the judge’s power to grant?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official who presides over administrative hearings, considers evidence, and issues a legal decision. In this case, the ALJ was Adam D. Stone.

A.R.S.

Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona.

Arizona Department of Real Estate

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

Burden of Proof

The legal obligation of a party in a dispute to provide sufficient evidence to prove their claim. In this case, the burden of proof was on the Petitioner.

An abbreviation for Covenants, Conditions, and Restrictions. These are the governing legal documents that set out the rules for a planned community or subdivision.

Office of Administrative Hearings

The government office where administrative law judges hear disputes concerning state agencies.

Order Granting Rehearing

A formal order issued by the Commissioner of the Arizona Department of Real Estate that approved the Petitioner’s request for a second hearing.

Petitioner

The party who initiates a legal action or files a petition. In this case, the Petitioner was Susan E. Abbass.

Planned Community

A real estate development that includes common property and is governed by a homeowners’ association.

Preponderance of the Evidence

The standard of proof required in this case. It is met when the evidence presented is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”

Prevailing Party

The party who wins a legal case or dispute. In the final decision, the Respondent was named the prevailing party.

Respondent

The party against whom a petition is filed. In this case, the Respondent was the 10000 North Central Homeowners Association.

Tribunal

A body established to settle certain types of disputes. In this context, it refers to the Office of Administrative Hearings where the case was heard.

Briefing Document: Abbass vs. 10000 North Central Homeowners Association

Executive Summary

This document synthesizes the findings and final order from the Administrative Law Judge (ALJ) in case number 20F-H2020057-REL-RHG, a dispute between homeowner Susan E. Abbass (Petitioner) and the 10000 North Central Homeowners Association (Respondent). The core of the dispute was the Petitioner’s request for the HOA to compel an inspection of a neighboring property, believed to be the source of a recurring water leak into her home.

The ALJ ultimately dismissed the Petitioner’s case, ruling in favor of the Respondent. The decision hinged on a critical distinction within the community’s governing documents (CCR’s): while the HOA possesses the right to enter a property under certain conditions, it does not have an explicit obligation to do so. The Petitioner failed to provide sufficient evidence to prove the HOA had violated the CCR’s. The ALJ concluded that the HOA acted reasonably by contacting the neighbor and reviewing the provided information, and that forcing access without more definitive proof could expose the HOA to legal risk. The decision suggests the Petitioner may be pursuing relief in an incorrect venue or against the incorrect party.

Case Overview

Case Name

Susan E Abbass vs. 10000 North Central Homeowners Association

Case Number

20F-H2020057-REL-RHG

Jurisdiction

In the Office of Administrative Hearings (Arizona)

Administrative Law Judge

Adam D. Stone

Petitioner

Susan E. Abbass

Respondent

10000 North Central Homeowners Association (represented by Blake Johnson, Esq.)

Hearing Date

November 24, 2020 (Rehearing)

Decision Date

December 1, 2020

Core Dispute and Allegations

Petitioner’s Central Claim

The Petitioner, Susan E. Abbass, alleged that the HOA violated its Covenants, Conditions, and Restrictions (CCR’s) by failing to authorize an inspection on a neighboring property. The Petitioner’s home was experiencing water intrusion every time it rained, and she believed the leak originated from the adjacent lot.

• Alleged Violations: The petition cited violations of the CCR’s Article XII, Section 6 and Article XIII, Sections 1(d) and 4.

• Argument: The Petitioner contended that the recurring water leak constituted an “emergency” situation, obligating the HOA to act.

Petitioner’s Position and Evidence

• Financial Responsibility: The Petitioner stated she was “ready, willing and able to be financially responsible for the cost of any inspections/surveys which needed to be performed on the neighboring property.”

• Due Diligence: Inspections and surveys conducted on her own property determined that the leak was not originating from there.

• Frustration: The Petitioner noted that over a year had passed since the leaking first occurred with no resolution from the HOA or the neighbor.

• Key Concession: During the rehearing, the Petitioner “agreed that Respondent does not have an obligation to enter the property, only the right.”

Respondent’s Defense and Actions

Respondent’s Position

The HOA argued that it did not have sufficient evidence to justify compelling access to the neighboring property. The property manager, Robert Kersten, testified for the Respondent.

• Lack of Proof: The HOA determined that the information provided by the Petitioner did not meet the criteria for forcing entry onto the neighbor’s property.

• Legal Risk: The Respondent expressed concern that if it “overstepped its authority, it could open itself up to other causes of action.”

Actions Taken by the HOA

Despite denying the Petitioner’s request to force an inspection, the HOA took the following steps:

• It reached out to the neighboring property owner to request access.

• It sent a warning letter to the neighbor regarding “improper vegetation” on the property.

• It contacted the neighbor, who, upon information and belief, had her insurance company inspect the water flow. The insurance company reportedly determined the neighbor was not at fault.

• At the rehearing, the Respondent submitted photographic evidence (Exhibits K, L, and M) purportedly showing a fixed pipe and drainage moving away from the Petitioner’s property.

Procedural History and Rehearing

1. Petition Filed (May 5, 2020): Petitioner filed a single-issue petition with the Arizona Department of Real Estate.

2. Initial Hearing (July 28, 2020): The first hearing was conducted.

3. Initial Decision (August 17, 2020): The ALJ issued a decision concluding the Petitioner failed to meet her burden of proof, as the HOA only had the right to enter the property, not an obligation.

4. Rehearing Request (August 31, 2020): Petitioner requested a rehearing, claiming the decision was “arbitrary, capricious, or an abuse of discretion” and “not supported by the evidence or is contrary to law.”

5. Rehearing Granted (October 14, 2020): The Commissioner of the Arizona Department of Real Estate granted the rehearing request.

6. Rehearing Conducted (November 24, 2020): The ALJ conducted a new hearing to reconsider the evidence.

Administrative Law Judge’s Findings and Conclusions

Burden of Proof

The ALJ reiterated that the Petitioner bears the burden to prove the alleged violations by a “preponderance of the evidence,” defined as evidence with “the most convincing force” that is “sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

• Conclusion on Evidence: The ALJ found that on rehearing, the “Petitioner failed to provide new evidence or witness testimony demonstrating that Respondent violated Article XII and Article XIII of the CCR’s.”

Key Judicial Determinations

• Right vs. Obligation: The central legal conclusion is that the HOA’s authority is discretionary. The CCR’s grant a right to enter property but do not impose an obligation to do so upon a homeowner’s request.

• HOA’s Conduct: The judge determined that the HOA had acted appropriately and in compliance with the CCR’s. The decision notes, “Respondent was receptive to the information provided by Petitioner and requested the neighboring property owners cooperation. While the neighboring owner may not have fully cooperated to the liking of Petitioner, Respondent still followed the CCR’s to the best of its ability at this point.”

• Statutory Limitations on ALJ: The ALJ is bound by Arizona statute A.R.S. § 32-2199.02(A), which limits the judge’s authority to ordering a party to “abide by the statutes, condominium documents, community documents or contract provision at issue.” The ALJ concluded, “it too cannot force the neighbor or the Respondent to grant access to the property.”

• Incorrect Venue: The decision strongly suggests the Petitioner is pursuing the wrong legal remedy: “While the possibility of future leaking is certainly frustrating, it appears that Petitioner has or the incorrect venue and possibly party to grant the relief for which it seeks.”

Final Order and Implications

• Ruling: The ALJ ordered that “the Respondent is the prevailing party with regard to the rehearing, and Petitioner’s appeal is dismissed.”

• Binding Nature: As a result of a rehearing, the administrative law judge order is binding on the parties.

• Appeal Process: Any party wishing to appeal the order must seek judicial review by filing with the superior court within thirty-five days from the date the order was served.

Case Participants

Petitioner Side

  • Susan E Abbass (petitioner)
  • Ronald Pick (witness)
    Witness for Petitioner

Respondent Side

  • Blake Johnson (attorney)
    Brown Olcott, PLLC
    Represented Respondent
  • Robert Kersten (property manager)
    Property manager, appeared as a witness for Respondent
  • Kelly Oetinger (attorney)
    Brown Olcott, PLLC

Neutral Parties

  • Adam D. Stone (ALJ)
    OAH
  • Judy Lowe (Commissioner)
    ADRE
  • c. serrano (staff)
    Electronic transmission sender

Michael J Stoltenberg v. Rancho Del Oro Homeowners Association

Posted on by

Case Summary

Case ID 20F-H2020059-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-02-12
Administrative Law Judge Sondra J. Vanella
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

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

Alleged Violations

CC&Rs § 5.1; A.R.S. § 10-3842

Outcome Summary

The Petition was dismissed after rehearing because Petitioner failed to establish by a preponderance of the evidence that the Respondent violated the CC&Rs. The ALJ found that Petitioner continually refused Respondent access to his locked back yard for landscaping maintenance, and the CC&Rs requiring landscaping do not mandate pool maintenance.

Why this result: Petitioner failed to establish a violation due to refusal of access to the back yard and misinterpretation of CC&R obligations regarding pool maintenance.

Key Issues & Findings

Failure to maintain landscaping and acting in bad faith

Petitioner alleged Respondent HOA violated CC&Rs by failing to maintain landscaping in 2020 and acting in bad faith, asserting that pool/hardscape maintenance was included in landscaping duties, and requesting the maximum fine. Respondent countered that they consistently maintained the front yard but were denied access to the locked backyard due to Petitioner's pool liability concerns.

Orders: Petitioner's Petition was dismissed/denied as Petitioner failed to establish a violation by a preponderance of the evidence. However, Respondent was ordered, going forward, to communicate the days and times they will be performing back yard landscaping so Petitioner can provide access.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • CC&Rs § 5.1
  • CC&Rs § 5.1(a)
  • A.R.S. § 10-3842
  • 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)
  • A.R.S. § 32-1122(A)(1)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Analytics Highlights

Topics: HOA Duties, Landscaping, Pool Maintenance, CC&Rs, Access Refusal, Rehearing
Additional Citations:

  • CC&Rs § 5.1
  • CC&Rs § 5.1(a)
  • A.R.S. § 10-3842
  • 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)
  • A.R.S. § 32-1122(A)(1)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Video Overview

Audio Overview

Decision Documents

20F-H2020059-REL Decision – 855028.pdf

Uploaded 2026-05-02T10:34:27 (139.1 KB)

20F-H2020059-REL Decision – 815480.pdf

Uploaded 2026-05-02T10:34:33 (124.1 KB)

20F-H2020059-REL Decision – 855028.pdf

Uploaded 2026-04-24T11:27:32 (139.1 KB)

20F-H2020059-REL Decision – 815480.pdf

Uploaded 2026-04-24T11:27:36 (124.1 KB)

20F-H2020059-REL Decision – 815480.pdf

Uploaded 2026-01-23T17:33:21 (124.1 KB)

Briefing Document: Stoltenberg v. Rancho Del Oro Homeowners Association

Executive Summary

This document synthesizes the findings from two administrative hearings concerning a dispute between homeowner Michael J. Stoltenberg (Petitioner) and the Rancho Del Oro Homeowners Association (Respondent). The core of the dispute centers on the scope of landscaping maintenance obligations as defined by the association’s Covenants, Conditions, and Restrictions (CC&Rs).

The Petitioner alleged the HOA failed its duties under CC&Rs § 5.1 by not maintaining his property’s unique landscaping, which he argued included replenishing rock, staining paths, and servicing his swimming pool and associated hardscape. He further claimed the HOA was acting in bad faith and failing to comply with a previous court ruling.

The Respondent countered that it had consistently performed standard landscaping on the Petitioner’s front yard since January 2020. However, it was repeatedly denied access to the backyard, a fact the Petitioner admitted, citing liability concerns due to his pool. The HOA provided evidence of multiple attempts to access the yard and testimony that its maintenance duties are uniform across the community and do not include “concierge” services or pool maintenance.

The Administrative Law Judge ultimately dismissed the petition in both the initial hearing and a subsequent rehearing. The final decision rested on two key points: 1) The Petitioner failed to provide access to the area in question, preventing the HOA from performing its duties. 2) The Petitioner failed to meet the burden of proof that the term “landscaping” under the CC&Rs could be reasonably interpreted to include swimming pool maintenance. This conclusion was strongly supported by the separate licensing classifications for landscaping (R-21) and swimming pool service (R-6) issued by the Arizona Registrar of Contractors, which establishes them as distinct services under state regulation.

Case Overview

Parties and Key Personnel

Name/Entity

Affiliation / Title

Petitioner

Michael J. Stoltenberg

Homeowner, 11777 E. Calle Gaudi, Yuma, AZ

Respondent

Rancho Del Oro Homeowners Association

Homeowners’ Association (HOA)

Respondent Counsel

Nicole Payne, Esq.

Legal Representative

Respondent Witness

Diana Crites

Owner, Crites and Associates (Property Management Co.)

Respondent Witness

Rian Baas

Owner, Mowtown Landscape (HOA Landscaping Contractor)

Presiding Judge

Sondra J. Vanella

Administrative Law Judge

Case Details

Details

Initial Case No.

20F-H2020059-REL

Initial Hearing

August 3, 2020

Initial Decision

August 17, 2020

Rehearing Case No.

20F-H2020059-REL-RHG

Rehearing

February 2, 2021

Rehearing Decision

February 12, 2021

Core Dispute

The central conflict involved the interpretation of the HOA’s maintenance obligations under its governing documents. The Petitioner argued for an expansive definition of “landscaping” that encompassed his entire property exterior, including a swimming pool. The HOA maintained that its duties were limited to standard, uniform landscaping services and that pool maintenance was explicitly excluded. The dispute was compounded by the Petitioner’s refusal to grant the HOA’s landscaper access to his backyard.

Petitioner’s Allegations and Arguments

Mr. Stoltenberg’s petition, filed on or about April 21, 2020, and subsequent arguments in two hearings, were based on the following claims:

• Violation of CC&Rs: The HOA violated § 5.1 of its CC&Rs by failing “to do their job in 2020 with maintaining landscaping, and are acting in bad faith.”

• Broad Interpretation of “Landscaping”: As the CC&Rs do not define “landscaping,” the Petitioner contended it should include all types of features outside of structures. His specific demands included:

◦ Maintenance of unique xeriscape with geometric patterns.

◦ Replenishment of thin or worn-out rock ground cover.

◦ Staining of walking paths.

◦ Full maintenance of his “water feature,” identified as a swimming pool. This included the pump, filter, chemicals, patio, and all related hardscape.

• Refusal to Grant Access: The Petitioner acknowledged that the gate to his backyard was “always locked.” He stated this was for liability reasons due to the pool and refused access to the HOA’s landscapers. At the rehearing, he argued the HOA failed to communicate its schedule to allow him to provide temporary access.

• Budgetary Failure: He asserted that the HOA did not properly budget for the costs associated with maintaining his unique landscaping.

• Grounds for Rehearing: After the initial denial, the Petitioner requested a rehearing on multiple grounds, including irregularity in proceedings, errors in evidence admission, and claims of “Americans with Disabilities Act (ADA) issues” related to hearing loss.

Respondent’s Position and Evidence

The Rancho Del Oro HOA presented a defense centered on its consistent attempts to fulfill its obligations and the Petitioner’s own actions preventing them from doing so.

• Consistent Front Yard Maintenance: Both the HOA property manager and its landscaping contractor testified that the Petitioner’s front yard had been continuously maintained since landscaping services began in January 2020.

• Denial of Backyard Access: The HOA’s primary defense was that it was physically prevented from servicing the backyard. Evidence presented to support this included:

◦ Testimony from Rian Baas (Mowtown Landscape): His crews were at the property weekly. Between January and March 2020, he or his crew knocked and left notes or business cards four to five times with no response.

◦ Witness Testimony: In March 2020, a woman at the residence (presumably the Petitioner’s wife) explicitly instructed a landscaper that “she does not want anyone in the back yard because she had a pool and that is the reason for the lock on gate.”

◦ Documentary Evidence: A text message dated March 24, 2020, from Mr. Baas to property manager Diana Crites memorialized this interaction. A photograph of the locked gate was also submitted.

• Scope of Services: Ms. Crites testified that HOA landscape services are uniform throughout the community and include front yard maintenance, mowing and blowing in backyards (if access is granted), and sprinkler system upkeep. They do not provide “concierge” services such as maintaining potted plants, driveways, or pools (except for the community pool, which is serviced by a separate contractor).

• Access as a Prerequisite: Ms. Crites explained that backyard maintenance is contingent on homeowners leaving their gates unlocked, and some owners choose not to grant access due to pets or other reasons.

Judicial Findings and Rulings

Initial Decision (August 17, 2020)

The Administrative Law Judge denied the Petitioner’s initial petition based on a clear set of facts.

• Findings of Fact: The judge found the evidence presented by the Respondent to be credible. The Petitioner’s own admission that he refused to allow access to his backyard since January 2020 was a critical factor. The evidence established that the HOA had consistently maintained the front yard and made multiple, documented attempts to access the backyard.

• Conclusions of Law: The judge concluded that while § 5.1(a) of the CC&Rs requires the HOA to maintain yards, “nothing therein requires Respondent to maintain an individual member’s pool.” Because the Petitioner denied access, he could not establish that the Respondent had violated any CC&R.

Rehearing and Final Decision (February 12, 2021)

After the Commissioner for the Department of Real Estate granted a rehearing, the judge again reviewed the case and ultimately dismissed the petition, providing a more detailed legal analysis of the term “landscaping.”

• Burden of Proof: The judge reiterated that the Petitioner bore the burden to establish by a preponderance of the evidence that the HOA was legally obligated to maintain his pool and hardscape. The Petitioner failed to offer any definition or legal authority to support his expansive interpretation.

• Analysis of “Landscaping”: The judge found that the common definitions of “landscaping” from various dictionary and legal sources “cannot reasonably be read to include a swimming pool and the associated mechanical equipment.”

• Arizona Registrar of Contractors (ROC) Licensing: The judge’s conclusion was decisively reinforced by the State of Arizona’s contractor licensing classifications:

◦ The R-21 Hardscaping and Irrigation Systems license (formerly Landscaping) is for installing garden walls, irrigation, and other landscape features. It specifically precludes the licensee from contracting for “swimming pools, pool deck coatings.”

◦ The R-6 Swimming Pool Service and Repair license is a separate classification required to service residential pools.

◦ The judge concluded: “The Registrar’s licensing scheme supports a conclusion that landscaping maintenance and pool maintenance are two separate and distinct services.”

• Final Order: The petition was dismissed. The judge noted that because the Petitioner denied access, the Respondent was not in violation. However, the judge provided a forward-looking recommendation: “it is reasonable, going forward, for Respondent to communicate the days and times that it will be performing the landscaping of Petitioner’s back yard so that Petitioner can provide access for that service while maintaining safety precautions.”

Study Guide: Stoltenberg v. Rancho Del Oro Homeowners Association

This study guide provides a comprehensive review of the administrative legal dispute between homeowner Michael J. Stoltenberg and the Rancho Del Oro Homeowners Association. It covers the key arguments, evidence presented, and legal conclusions from two separate hearings. Use the following sections to test and deepen your understanding of the case.

Short-Answer Quiz

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

1. Who were the primary parties involved in this legal dispute, and what were their respective roles?

2. What was the core allegation made by the Petitioner against the Respondent in the initial petition filed on April 21, 2020?

3. According to Section 5.1 of the CC&Rs, what is the Association’s primary maintenance obligation regarding individual lots?

4. What specific and unique types of landscaping did the Petitioner claim required maintenance by the HOA?

5. What was the primary reason the Respondent’s landscaping contractor, Mowtown Landscape, was unable to perform maintenance in the Petitioner’s backyard?

6. What evidence did Diana Crites, the property manager, present to demonstrate the landscaper’s attempts to gain access to the backyard?

7. On what grounds did the Administrative Law Judge initially deny the Petitioner’s petition in the decision dated August 17, 2020?

8. What reasons did the Petitioner give for his request for a rehearing after the initial decision?

9. In the rehearing, how did the Administrative Law Judge legally define “landscaping” to determine the scope of the HOA’s duties?

10. What was the final order in the decision dated February 12, 2021, and what recommendation did the judge make for future interactions?

——————————————————————————–

Answer Key

1. The primary parties were Michael J. Stoltenberg, the homeowner, who served as the Petitioner, and the Rancho Del Oro Homeowners Association, which was the Respondent. The Petitioner brought the complaint alleging the HOA was not fulfilling its duties, while the Respondent defended its actions. The case was heard by Administrative Law Judge Sondra J. Vanella.

2. The Petitioner alleged that the Respondent had violated its Covenants, Conditions, and Restrictions (CC&Rs) § 5.1 and Arizona Revised Statutes § 10-3842. Specifically, he claimed the HOA failed “to do their job in 2020 with maintaining landscaping, and are acting in bad faith.” He also referenced a refusal to follow a previous court ruling.

3. Section 5.1 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 clause formed the basis of the Petitioner’s argument that the HOA was responsible for all landscaping on his property.

4. The Petitioner testified that his landscaping was unique, including xeriscape with geometric patterns, “water features” (which was a pool), and walking paths that needed staining. He also contended that when the rock in his front yard wore thin, the Respondent should be responsible for replenishing it.

5. The landscaping contractor could not access the Petitioner’s backyard because the gate was always locked. The Petitioner acknowledged he kept it locked for liability reasons due to the presence of his pool, which he referred to as a “water feature.”

6. Diana Crites presented a text message from the landscaper, Rian Baas, dated March 24, 2020, detailing how a woman at the residence stated she did not want anyone in the backyard because of the pool. Ms. Crites also presented a photograph of the locked gate and read a letter from Mr. Baas explaining his crew had knocked and left business cards weekly for two months without response.

7. The judge denied the petition because the Petitioner’s own admission established that he had refused to allow the Respondent access to his backyard since January 2020. The decision noted that the HOA had made multiple attempts to access the yard and had consistently maintained the front yard landscaping.

8. The Petitioner requested a rehearing on multiple grounds, including alleged irregularity in the proceedings by the judge, newly discovered evidence, errors in the admission of evidence, and that the decision was not supported by evidence. He also asserted that there were Americans with Disabilities Act (ADA) issues related to his hearing loss and privacy issues.

9. The judge referenced multiple online dictionaries (Oxford English Dictionary, Dictionary.com, etc.) and, most significantly, the Arizona Registrar of Contractors’ license classifications. She noted that landscaping (R-21 license) and swimming pool service (R-6 license) are two separate and distinct services, supporting the conclusion that pool maintenance is not included under the term “landscaping.”

10. The final order was that the Petitioner’s Petition was dismissed. However, the judge recommended that, going forward, it would be reasonable for the Respondent to communicate the days and times for landscaping so the Petitioner could provide access to his backyard while maintaining his safety precautions.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed to encourage deeper analysis of the case. Formulate a comprehensive response to each, structuring your answer as a short essay.

1. Analyze the role of “burden of proof” in this case. Explain what “preponderance of the evidence” means according to the source text and discuss how the Petitioner’s failure to meet this burden led to the dismissal of his petition in both hearings.

2. Discuss the conflict between the Petitioner’s right to secure his property (the locked gate) and the Respondent’s obligation to perform maintenance. How did the judge’s final recommendation attempt to resolve this practical conflict, even while legally siding with the Respondent?

3. Evaluate the Administrative Law Judge’s legal reasoning in the rehearing for defining “landscaping.” Why was the reference to the Arizona Registrar of Contractors’ licensing scheme a particularly persuasive piece of evidence compared to dictionary definitions alone?

4. Trace the evolution of the Petitioner’s arguments from the initial hearing to the rehearing. How did his claims regarding the scope of “landscaping” and his introduction of issues like ADA accommodation and the HOA’s legitimacy reflect a shift in legal strategy?

5. Based on the evidence presented by the Respondent’s witnesses (Diana Crites and Rian Baas), assess the HOA’s efforts to fulfill its maintenance obligations. Were the HOA’s actions reasonable under the circumstances described in the proceedings?

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings. In this case, Sondra J. Vanella served as the ALJ for the Office of Administrative Hearings.

A.R.S. (Arizona Revised Statutes)

The codified laws of the state of Arizona. The Petitioner cited A.R.S. § 10-3842 (Code of Conduct for Board Members) and the proceedings operated under the authority of A.R.S. § 32-2199(B) and other related statutes.

Burden of Proof

The obligation on a party in a dispute to provide sufficient evidence to support their claim. In this case, the Petitioner bore the burden of proof to establish that the Respondent violated its CC&Rs.

CC&Rs (Covenants, Conditions, and Restrictions)

The governing legal documents that set out the rules for a planned community. The central issue of this case was the interpretation of Section 5.1(a) of the Rancho Del Oro HOA’s CC&Rs regarding maintenance duties.

Concierge Landscape Services

A term used by witness Diana Crites to describe specialized, non-uniform services the HOA does not provide. Examples given included maintaining potted plants, driveways, or walls dividing properties, in contrast to the uniform mowing and blowing provided to all homeowners.

Office of Administrative Hearings

An independent state agency in Arizona that conducts evidentiary hearings for other state agencies. This office heard the dispute after it was referred by the Department of Real Estate.

Petitioner

The party who files a petition initiating a legal case. In this matter, the Petitioner was homeowner Michael J. Stoltenberg.

Preponderance of the Evidence

The evidentiary standard required for the Petitioner to win his case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and is considered the “greater weight of the evidence.”

Respondent

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

Xeriscape

A style of landscaping utilizing drought-tolerant plants and rock to minimize water use. The Petitioner mentioned his unique xeriscape with geometric patterns as part of the landscaping he expected the HOA to maintain.

Study Guide: Stoltenberg v. Rancho Del Oro Homeowners Association

This study guide provides a comprehensive review of the administrative legal dispute between homeowner Michael J. Stoltenberg and the Rancho Del Oro Homeowners Association. It covers the key arguments, evidence presented, and legal conclusions from two separate hearings. Use the following sections to test and deepen your understanding of the case.

Short-Answer Quiz

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

1. Who were the primary parties involved in this legal dispute, and what were their respective roles?

2. What was the core allegation made by the Petitioner against the Respondent in the initial petition filed on April 21, 2020?

3. According to Section 5.1 of the CC&Rs, what is the Association’s primary maintenance obligation regarding individual lots?

4. What specific and unique types of landscaping did the Petitioner claim required maintenance by the HOA?

5. What was the primary reason the Respondent’s landscaping contractor, Mowtown Landscape, was unable to perform maintenance in the Petitioner’s backyard?

6. What evidence did Diana Crites, the property manager, present to demonstrate the landscaper’s attempts to gain access to the backyard?

7. On what grounds did the Administrative Law Judge initially deny the Petitioner’s petition in the decision dated August 17, 2020?

8. What reasons did the Petitioner give for his request for a rehearing after the initial decision?

9. In the rehearing, how did the Administrative Law Judge legally define “landscaping” to determine the scope of the HOA’s duties?

10. What was the final order in the decision dated February 12, 2021, and what recommendation did the judge make for future interactions?

——————————————————————————–

Answer Key

1. The primary parties were Michael J. Stoltenberg, the homeowner, who served as the Petitioner, and the Rancho Del Oro Homeowners Association, which was the Respondent. The Petitioner brought the complaint alleging the HOA was not fulfilling its duties, while the Respondent defended its actions. The case was heard by Administrative Law Judge Sondra J. Vanella.

2. The Petitioner alleged that the Respondent had violated its Covenants, Conditions, and Restrictions (CC&Rs) § 5.1 and Arizona Revised Statutes § 10-3842. Specifically, he claimed the HOA failed “to do their job in 2020 with maintaining landscaping, and are acting in bad faith.” He also referenced a refusal to follow a previous court ruling.

3. Section 5.1 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 clause formed the basis of the Petitioner’s argument that the HOA was responsible for all landscaping on his property.

4. The Petitioner testified that his landscaping was unique, including xeriscape with geometric patterns, “water features” (which was a pool), and walking paths that needed staining. He also contended that when the rock in his front yard wore thin, the Respondent should be responsible for replenishing it.

5. The landscaping contractor could not access the Petitioner’s backyard because the gate was always locked. The Petitioner acknowledged he kept it locked for liability reasons due to the presence of his pool, which he referred to as a “water feature.”

6. Diana Crites presented a text message from the landscaper, Rian Baas, dated March 24, 2020, detailing how a woman at the residence stated she did not want anyone in the backyard because of the pool. Ms. Crites also presented a photograph of the locked gate and read a letter from Mr. Baas explaining his crew had knocked and left business cards weekly for two months without response.

7. The judge denied the petition because the Petitioner’s own admission established that he had refused to allow the Respondent access to his backyard since January 2020. The decision noted that the HOA had made multiple attempts to access the yard and had consistently maintained the front yard landscaping.

8. The Petitioner requested a rehearing on multiple grounds, including alleged irregularity in the proceedings by the judge, newly discovered evidence, errors in the admission of evidence, and that the decision was not supported by evidence. He also asserted that there were Americans with Disabilities Act (ADA) issues related to his hearing loss and privacy issues.

9. The judge referenced multiple online dictionaries (Oxford English Dictionary, Dictionary.com, etc.) and, most significantly, the Arizona Registrar of Contractors’ license classifications. She noted that landscaping (R-21 license) and swimming pool service (R-6 license) are two separate and distinct services, supporting the conclusion that pool maintenance is not included under the term “landscaping.”

10. The final order was that the Petitioner’s Petition was dismissed. However, the judge recommended that, going forward, it would be reasonable for the Respondent to communicate the days and times for landscaping so the Petitioner could provide access to his backyard while maintaining his safety precautions.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed to encourage deeper analysis of the case. Formulate a comprehensive response to each, structuring your answer as a short essay.

1. Analyze the role of “burden of proof” in this case. Explain what “preponderance of the evidence” means according to the source text and discuss how the Petitioner’s failure to meet this burden led to the dismissal of his petition in both hearings.

2. Discuss the conflict between the Petitioner’s right to secure his property (the locked gate) and the Respondent’s obligation to perform maintenance. How did the judge’s final recommendation attempt to resolve this practical conflict, even while legally siding with the Respondent?

3. Evaluate the Administrative Law Judge’s legal reasoning in the rehearing for defining “landscaping.” Why was the reference to the Arizona Registrar of Contractors’ licensing scheme a particularly persuasive piece of evidence compared to dictionary definitions alone?

4. Trace the evolution of the Petitioner’s arguments from the initial hearing to the rehearing. How did his claims regarding the scope of “landscaping” and his introduction of issues like ADA accommodation and the HOA’s legitimacy reflect a shift in legal strategy?

5. Based on the evidence presented by the Respondent’s witnesses (Diana Crites and Rian Baas), assess the HOA’s efforts to fulfill its maintenance obligations. Were the HOA’s actions reasonable under the circumstances described in the proceedings?

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings. In this case, Sondra J. Vanella served as the ALJ for the Office of Administrative Hearings.

A.R.S. (Arizona Revised Statutes)

The codified laws of the state of Arizona. The Petitioner cited A.R.S. § 10-3842 (Code of Conduct for Board Members) and the proceedings operated under the authority of A.R.S. § 32-2199(B) and other related statutes.

Burden of Proof

The obligation on a party in a dispute to provide sufficient evidence to support their claim. In this case, the Petitioner bore the burden of proof to establish that the Respondent violated its CC&Rs.

CC&Rs (Covenants, Conditions, and Restrictions)

The governing legal documents that set out the rules for a planned community. The central issue of this case was the interpretation of Section 5.1(a) of the Rancho Del Oro HOA’s CC&Rs regarding maintenance duties.

Concierge Landscape Services

A term used by witness Diana Crites to describe specialized, non-uniform services the HOA does not provide. Examples given included maintaining potted plants, driveways, or walls dividing properties, in contrast to the uniform mowing and blowing provided to all homeowners.

Office of Administrative Hearings

An independent state agency in Arizona that conducts evidentiary hearings for other state agencies. This office heard the dispute after it was referred by the Department of Real Estate.

Petitioner

The party who files a petition initiating a legal case. In this matter, the Petitioner was homeowner Michael J. Stoltenberg.

Preponderance of the Evidence

The evidentiary standard required for the Petitioner to win his case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and is considered the “greater weight of the evidence.”

Respondent

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

Xeriscape

A style of landscaping utilizing drought-tolerant plants and rock to minimize water use. The Petitioner mentioned his unique xeriscape with geometric patterns as part of the landscaping he expected the HOA to maintain.

Case Participants

Petitioner Side

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

Respondent Side

  • Nicole Payne (HOA attorney)
    Represented Respondent Rancho Del Oro Homeowners Association
  • Diana Crites (property manager)
    Crites and Associates
    Owner of Respondent’s property management company; appeared as witness
  • Rian Baas (witness)
    Mowtown Landscape
    Owner of landscaping company contracted by Respondent
  • Lydia A. Peirce Linsmeier (HOA attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
    Listed as recipient of the decision
  • Luis (employee)
    Mowtown Landscape (Implied)
    Crew member mentioned in text message regarding attempted access to petitioner's yard
  • Jill (employee)
    Mowtown Landscape (Implied)
    Printed papers for Luis regarding access to petitioner's yard

Neutral Parties

  • Sondra J. Vanella (ALJ)
    Administrative Law Judge
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate

John R. Ashley v. Rancho Reyes II Community Association, Inc.

Posted on by
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.

Case Summary

Case ID 20F-H2019032-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2020-08-11
Administrative Law Judge Thomas Shedden
Outcome The ALJ dismissed the petition upon rehearing, finding that the Petitioner failed to prove by a preponderance of the evidence that Respondent violated Bylaws Article III, Section 4, because that provision is unambiguous and applies only to member quorums, not requiring a quorum of Board members at membership meetings.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John R Ashley Counsel —
Respondent Rancho Reyes II Community Association, Inc. Counsel Wendy Erlich

Alleged Violations

Bylaws Article III, Section 4

Outcome Summary

The ALJ dismissed the petition upon rehearing, finding that the Petitioner failed to prove by a preponderance of the evidence that Respondent violated Bylaws Article III, Section 4, because that provision is unambiguous and applies only to member quorums, not requiring a quorum of Board members at membership meetings.

Why this result: Petitioner failed to carry the burden of proof. The Bylaws were interpreted as a contract whose unambiguous terms (Article III, Section 4) do not support the Petitioner's claim regarding Board quorum at member meetings.

Key Issues & Findings

Failure to establish a quorum of Board members at membership meetings

Petitioner alleged Respondent violated Bylaws Article III, Section 4 by conducting member-meetings without a quorum of Board members present. The ALJ concluded the cited Bylaw provision was unambiguous and imposed no such requirement, only defining a quorum as 1/10th of the membership votes for action at a member meeting.

Orders: The Administrative Law Judge dismissed the petition following the rehearing, concluding the Petitioner had not shown the Respondent violated the cited Bylaws provision.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
  • Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 138 P.3d 1210 (App. 2006)
  • Rowland v. Union Hills Country Club, 157 Ariz. 301, 757 P.2d 105 (1988 App.)
  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119

Analytics Highlights

Topics: HOA, Bylaws, Quorum, Contract Interpretation, Dismissal, Rehearing
Additional Citations:

  • McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
  • Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 138 P.3d 1210 (App. 2006)
  • Rowland v. Union Hills Country Club, 157 Ariz. 301, 757 P.2d 105 (1988 App.)
  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • Ariz. Rev. Stat. § 32-2199.01

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Decision Documents

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Briefing Document: Ashley v. Rancho Reyes II Community Association, Inc.

Executive Summary

This document synthesizes the key facts, arguments, and legal rulings in the administrative case of John R Ashley v. Rancho Reyes II Community Association, Inc. (No. 20F-H2019032-REL). The central issue revolved around Petitioner John R. Ashley’s allegation that the Respondent, his homeowners’ association, violated its bylaws by conducting member meetings without a quorum of its Board of Directors present.

The Administrative Law Judge (ALJ) ultimately dismissed the petition, a decision that was upheld after a full rehearing. The core of the ruling rested on a plain-text interpretation of the association’s bylaws. The ALJ found that Bylaws Article III, Section 4 unambiguously defines a quorum for member meetings as one-tenth (1/10th) of the general membership, with no requirement for a Board quorum. The separate requirements for a Board quorum are distinctly located in Article VI, which governs meetings of the Directors.

The Petitioner’s arguments—that the Board constituted a separate “class of member” requiring a quorum and that Robert’s Rules of Order should apply—were found to be unsubstantiated by evidence. The ALJ concluded that the Petitioner failed to meet his burden of proof, and the Respondent association was deemed the prevailing party in the matter.

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Case Background and Procedural History

Parties Involved

Entity / Individual

Petitioner

John R. Ashley

Respondent

Rancho Reyes II Community Association, Inc.

Attorney for Respondent

Wendy Erlich, Esq.

Tribunal

Arizona Office of Administrative Hearings (OAH)

Presiding Judge

Thomas Shedden, Administrative Law Judge

Oversight Agency

Arizona Department of Real Estate

Core Allegation

The petitioner, John R. Ashley, filed a single-issue petition on or around December 9, 2019. He alleged that the Rancho Reyes II Community Association, Inc. violated its bylaws, specifically Article III, Section 4, by failing to establish a quorum of its Board of Directors at the annual membership meetings held in December 2017 and December 2018.

Procedural Timeline

• c. December 9, 2019: John R. Ashley files a petition with the Arizona Department of Real Estate.

• February 10, 2020: The Respondent files a Motion to Dismiss Petition, arguing that the cited bylaw does not require a Board quorum at member meetings.

• February 18, 2020: Mr. Ashley files a notice confirming his single issue is the alleged violation of Article III, Section 4.

• March 3, 2020: The ALJ, Thomas Shedden, grants the Respondent’s Motion to Dismiss. The hearing scheduled for March 16, 2020 is vacated.

• March 10, 2020: Mr. Ashley files a Request for Rehearing with the Department of Real Estate.

• March 27, 2020: The Department of Real Estate issues an Order Granting Rehearing.

• July 28, 2020: A full rehearing is conducted at the OAH. Mr. Ashley testifies on his own behalf; the Respondent is represented by counsel but presents no witnesses.

• August 11, 2020: The ALJ issues a final decision after the rehearing, once again dismissing Mr. Ashley’s petition.

Analysis of the Central Dispute: Bylaw Interpretation

The case hinged entirely on the interpretation of the quorum requirements as defined in the association’s bylaws. The Petitioner and Respondent presented conflicting views on the applicability of these rules to member meetings versus director meetings.

Petitioner’s Position (John R. Ashley)

• Primary Argument: Mr. Ashley asserted that Article III, Section 4 required a quorum of the Board of Directors to be present at all meetings of the general membership.

• “Board Membership Class” Theory: He argued that the Board of Directors constituted a third “class of member” alongside homeowners and the original developers. Under this theory, this “class” would need its own quorum at member meetings. The ALJ found no substantial evidence to support the existence of this class in the bylaws.

• Reliance on Robert’s Rules of Order: Mr. Ashley referenced Robert’s Rules of Order to support his position. However, he presented no evidence to show that these rules were incorporated into the association’s Articles of Incorporation, Declaration, or Bylaws, making them inapplicable under the tribunal’s statutory authority.

Respondent’s Position (Rancho Reyes II Community Association, Inc.)

• Plain Text Interpretation: The Respondent argued that Article III, Section 4 is unambiguous and applies solely to the quorum requirements for the general membership, not the Board of Directors.

• Distinct Quorum Rules: The association contended that the bylaws clearly separate the rules for member meetings (Article III) from the rules for director meetings (Article VI). Article VI, Section 3 explicitly sets the quorum for the transaction of business by the Board of Directors.

Controlling Bylaw Provisions

Article

Pertinent Text / Description

Article III, Section 4

Meetings of Members; Quorum

“The presence at the meeting of Members entitled to cast, or of proxies entitled to cast, one-tenth (1/10th) of the votes of each class of membership will constitute a quorum for any action except as otherwise provided…”

Article VI, Section 3

Meetings of Directors; Quorum

Sets out the quorum requirements specifically for Board of Director meetings, showing that a majority of Directors constitutes a quorum for the transaction of business.

Administrative Law Judge’s Findings and Rulings

The ALJ’s decisions, both in the initial dismissal and the final order after rehearing, were consistent and based on established principles of contract law and the evidence presented.

Initial Dismissal (March 3, 2020)

In the initial order, the ALJ granted the Respondent’s Motion to Dismiss based on a direct reading of the bylaws. The ruling stated:

• The bylaws are a contract between the parties.

• The terms of Article III, Section 4 are unambiguous and contain “no requirement for a quorum of Board members to be present at a meeting of the membership.”

• Because the bylaw does not contain the requirement alleged by Mr. Ashley, a violation could not have occurred.

Rehearing Decision (August 11, 2020)

The rehearing allowed for a more extensive review but ultimately affirmed the initial conclusion. The ALJ made several key Conclusions of Law:

• Burden of Proof: Mr. Ashley, as the petitioner, bore the burden of proving his case by a preponderance of the evidence.

• Bylaws as Contract: Citing legal precedent (McNally v. Sun Lakes Homeowners Ass’n #1, Inc.), the decision reiterated that bylaws function as a binding contract.

• Unambiguous Terms: The tribunal is required to give effect to the unambiguous terms of a contract. Article III, Section 4 was found to be clear and unambiguous in its meaning.

• Lack of Evidence: Mr. Ashley failed to present substantial evidence for his key claims:

◦ He did not show that Robert’s Rules of Order were applicable to the matter.

◦ He did not show that the bylaws included a “Board membership class.”

• Final Conclusion: Because Article III, Section 4 does not require a quorum of Board members at a member meeting, Mr. Ashley failed to prove by a preponderance of the evidence that the Respondent had violated it.

Final Order and Implications

Based on the findings from the rehearing, the Administrative Law Judge issued a final, binding order on August 11, 2020.

• Order: “IT IS ORDERED that Petitioner John R. Ashley’s petition is dismissed.”

• Prevailing Party: The Respondent, Rancho Reyes II Community Association, Inc., was deemed the prevailing party in the matter.

• Appeal Rights: The order noted that, as a decision resulting from a rehearing, it is binding on the parties. Any further appeal must be sought through judicial review by filing with the superior court within thirty-five days from the date of service, as prescribed by Arizona Revised Statutes.

Study Guide: Case No. 20F-H2019032-REL

This guide is designed to review the key facts, legal arguments, and procedural history of the administrative case involving John R. Ashley and the Rancho Reyes II Community Association, Inc.

Short-Answer Quiz

Instructions: Answer the following questions in two to three sentences, using only the information provided in the source documents.

1. Who were the Petitioner and Respondent in case No. 20F-H2019032-REL, and what was the primary institution hearing the case?

2. What was the central allegation made by John R. Ashley in his initial petition filed on December 9, 2019?

3. According to the provided documents, what did Bylaws Article III, Section 4 actually require to establish a quorum for a meeting of the members?

4. On what grounds did the Respondent, Rancho Reyes II Community Association, Inc., file its Motion to Dismiss?

5. What was the initial outcome of Mr. Ashley’s petition, as decided in the Administrative Law Judge Decision dated March 3, 2020?

6. Upon what legal standard did the Administrative Law Judge state that bylaws should be interpreted, and what two court cases were cited to support this principle?

7. During the rehearing, Mr. Ashley introduced an argument about different “classes of membership.” What was this argument, and why was it rejected?

8. What role did Robert’s Rules of Order play in Mr. Ashley’s arguments, and what was the tribunal’s official position on construing these rules?

9. What is the standard of proof required in this matter, and which party bore the burden of meeting it?

10. What was the final order issued on August 11, 2020, and what was the specified recourse for a party wishing to appeal it?

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Answer Key

1. The Petitioner was John R. Ashley, and the Respondent was Rancho Reyes II Community Association, Inc. The case was heard in the State of Arizona’s Office of Administrative Hearings (OAH).

2. Mr. Ashley’s central allegation was that the Respondent violated its own Bylaws, specifically Article III, Section 4, by conducting member meetings in December 2017 and December 2018 without a quorum of Board members present.

3. Bylaws Article III, Section 4 required the presence of members or proxies entitled to cast one-tenth (1/10th) of the votes of each class of membership. It contained no provision requiring a quorum of the Board of Directors to be present at a member meeting.

4. The Respondent filed its Motion to Dismiss on the grounds that the petition should be dismissed because Article III, Section 4 of the Bylaws is unambiguous and does not require a quorum of Board members to be present for a meeting of the members.

5. The Administrative Law Judge granted the Respondent’s Motion to Dismiss in an order dated March 3, 2020. Mr. Ashley’s petition was dismissed, and the hearing scheduled for March 16, 2020, was vacated.

6. The judge stated that the Bylaws are a contract between the parties, and unambiguous terms must be given effect. The cases cited were McNally v. Sun Lakes Homeowners Ass’n #1, Inc. and Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C.

7. Mr. Ashley argued that a “Board membership class” existed and that Article III, Section 4 required a quorum of this class. The argument was rejected because he presented no substantial evidence that the Bylaws included such a class.

8. Mr. Ashley argued that Robert’s Rules of Order supported his position. The tribunal determined that construing these rules was not within the scope of its authority and noted that Mr. Ashley failed to provide evidence showing the rules were part of the association’s governing documents.

9. The standard of proof was a “preponderance of the evidence.” The Petitioner, Mr. Ashley, bore the burden of proof on all issues in the matter.

10. The final order, issued after the rehearing, was that Mr. Ashley’s petition was dismissed and the Respondent was deemed the prevailing party. A party wishing to appeal the order was required to seek judicial review with the superior court within thirty-five days from the date the order was served.

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Essay Questions

Instructions: The following questions are designed to test a deeper, synthesized understanding of the case. Formulate comprehensive responses based on the details in the source documents.

1. Discuss the legal reasoning used by the Administrative Law Judge to dismiss the petition, referencing the specific bylaws (Article III, Section 4 and Article VI, Section 3) and legal precedents cited in the decision.

2. Analyze the evolution of John R. Ashley’s arguments from his initial petition to the rehearing. How did his claims change, and why were they ultimately unsuccessful according to the final decision?

3. Explain the distinction between a quorum for a “Meeting of Members” and a “Meeting of Directors” as outlined in the Rancho Reyes II Community Association’s Bylaws. How was this distinction central to the case’s outcome?

4. Describe the procedural timeline of the case from the initial filing on December 9, 2019, to the final order after rehearing on August 11, 2020. What were the key procedural steps and decisions made by the Office of Administrative Hearings and the Department of Real Estate?

5. Based on the legal standards cited in the decision, explain the concepts of “burden of proof” and “preponderance of the evidence.” How did these standards apply to Mr. Ashley’s case and contribute to its dismissal?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions, such as Thomas Shedden in this case.

Burden of Proof

The obligation of a party in a legal case to provide sufficient evidence to support their claim. In this matter, the burden of proof was on the Petitioner, John R. Ashley.

Bylaws

A set of rules governing the internal management of an organization, such as a homeowners association. In this case, they are treated as a binding contract between the association and its members.

Department of Real Estate

The Arizona state agency that has authority over planned communities and homeowner associations, and which granted Mr. Ashley’s request for a rehearing.

Judicial Review

The process by which a party can appeal a decision from an administrative agency (like the OAH) to a court of law (the superior court).

Motion to Dismiss

A formal request filed by a party asking for a case to be dismissed. In this matter, the Respondent filed one arguing that the petitioner’s claim had no legal basis under the Bylaws.

Office of Administrative Hearings (OAH)

The state agency that conducts impartial hearings for other state agencies. The OAH is located at 1740 West Adams Street, Phoenix, Arizona.

Petitioner

The party who initiates a legal action or petition. In this case, John R. Ashley.

Preponderance of the Evidence

The standard of proof in this case, defined as “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Prevailing Party

The party who wins a legal dispute. The Respondent was deemed the prevailing party in the final order.

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.

Rehearing

A second hearing of a case, granted in this matter by the Department of Real Estate after the initial petition was dismissed.

Respondent

The party against whom a petition is filed. In this case, Rancho Reyes II Community Association, Inc.

4 Surprising Legal Lessons from One Man’s Fight With His Homeowners Association

Introduction: The Rules We All Live By

If you live in a planned community, condominium, or cooperative, you live by a set of rules. For the most part, we assume these governing documents—like the bylaws of a Homeowners Association (HOA)—are straightforward. We pay our dues, keep our lawns tidy, and expect the association to manage the common areas.

But what happens when there’s a disagreement over what those rules actually mean? Disputes can arise from simple misunderstandings, and the consequences can be more complex than anyone anticipates.

A close look at a real administrative case, the dispute between John R. Ashley and the Rancho Reyes II Community Association, reveals some surprisingly impactful lessons about how community rules are interpreted in a legal setting. His fight provides a playbook of critical legal principles, revealing how the literal text of community documents can override common assumptions and even procedural standards.

The Takeaways

Here are the core lessons that emerged from the Administrative Law Judge’s decisions in the case.

The most fundamental principle guiding the judge’s decision was simple: an HOA’s bylaws are not just a set of community guidelines. They are a formal, legally binding contract between the association and its members. This concept was directly referenced from a previous case, McNally v. Sun Lakes Homeowners Ass’n #1, Inc.

This contractual nature means that the exact terms must be followed to the letter by both parties—the homeowners and the association’s board. This means that when a document’s language is unambiguous, a court will not consider outside evidence or ‘common sense’ understandings to alter its meaning. The words on the page are all that matters. The judge’s decision underscored this point with a powerful statement:

and the parties are required to comply with the terms of that contract.

A core legal principle is that when the terms of a contract are clear and unambiguous, they must be given their plain and ordinary meaning. You cannot add requirements that simply aren’t there.

Mr. Ashley’s entire case rested on his belief that a quorum of the Board of Directors was required to be present at member meetings. However, the Administrative Law Judge dismissed this argument by pointing directly to the text of the bylaws. Article III, Section 4, which governs member meetings, only required a quorum of “one-tenth (1/10th) of the votes of each class of membership.”

A separate section, Article VI, set the quorum requirements for Board meetings. The judge noted this clear distinction, stating that the tribunal is required to “give effect to those unambiguous terms.” This demonstrates a crucial principle of contract law: the structure of the document is part of its meaning. A requirement located under the ‘Meetings of Directors’ article cannot be unilaterally applied to the ‘Meetings of Members’ article.

In his petition, Mr. Ashley referenced Robert’s Rules of Order to support his position on meeting procedures. Many organizations use this manual as a standard for conducting business, and it’s often assumed to be a universal default.

However, the judge found this argument irrelevant. Why? Because Mr. Ashley “presented no evidence to show that Roberts Rules are part of the ‘Articles of Incorporation, the Declaration, or [the] Bylaws.'” The judge also noted that interpreting such external rules was not within the tribunal’s authority. This provides a critical lesson: external standards, no matter how common, only apply if an organization’s own governing documents explicitly adopt them.

Just as external rules can’t be imported without being explicitly adopted, internal rules cannot be invented out of thin air, as Mr. Ashley’s next argument demonstrated.

During a rehearing, Mr. Ashley presented a creative but ultimately unsuccessful argument. He claimed that the Board of Directors constituted a “third class of member” and, therefore, required its own separate quorum at member meetings according to the language in Article III, Section 4.

The Administrative Law Judge swiftly rejected this novel interpretation. The decision concluded that Mr. Ashley “did not present substantial evidence that the Bylaws include a ‘Board membership class.'” This final point reinforces the central theme: arguments must be grounded in the literal text of the contract (the bylaws). This underscores the ultimate lesson: the burden of proof was on Mr. Ashley to show his interpretations were supported by the text. His failure to do so, both in referencing Robert’s Rules and in proposing a new ‘Board membership class,’ was the foundation of the judge’s decision.

Conclusion: Read the Fine Print

The dismissal of John R. Ashley’s petition is a stark reminder for every homeowner living under association rules. In the world of community governance, good intentions, common practices, and creative interpretations take a back seat. Precision, clarity, and—above all—the literal text of the governing documents are paramount.

When was the last time you read the specific documents that govern your own community?

Case Participants

Petitioner Side

  • John R Ashley (petitioner)
    Appeared on his own behalf

Respondent Side

  • Wendy Erlich (respondent attorney)
    Wendy Erlich Attorney PLLC
    Represented Rancho Reyes II Community Association, Inc.

Neutral Parties

  • Thomas Shedden (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate
  • LDettorre (ADRE staff recipient)
    Arizona Department of Real Estate
    Recipient of final order transmission
  • AHansen (ADRE staff recipient)
    Arizona Department of Real Estate
    Recipient of final order transmission
  • djones (ADRE staff recipient)
    Arizona Department of Real Estate
    Recipient of final order transmission
  • DGardner (ADRE staff recipient)
    Arizona Department of Real Estate
    Recipient of final order transmission
  • ncano (ADRE staff recipient)
    Arizona Department of Real Estate
    Recipient of final order transmission

Other Participants

  • A. Leverette (clerical staff)
    Signed document transmission in initial order

Michael J Stoltenberg v. Rancho Del Oro Homeowners Association

Posted on by

Case Summary

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

Parties & Counsel

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

Alleged Violations

CC&Rs Section 14.8

Outcome Summary

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

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

Key Issues & Findings

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

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

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

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

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

Analytics Highlights

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

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 33-1243
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 10-3842
  • CC&Rs 14.8
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Video Overview

Audio Overview

Decision Documents

20F-H2020049-REL Decision – 861466.pdf

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

20F-H2020049-REL Decision – 811290.pdf

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

Stoltenberg v. Rancho Del Oro HOA: Case Analysis and Legal Findings

Executive Summary

This document provides a comprehensive analysis of the administrative legal case Michael J Stoltenberg v. Rancho Del Oro Homeowners Association (Case No. 20F-H2020049-REL). The central dispute arose when Mr. Stoltenberg, a homeowner, was assessed late fees on his monthly dues after unilaterally altering his payment method. He began sending payments via restricted U.S. Postal Service delivery to a specific volunteer board member, which resulted in significant processing delays and non-deliveries.

The petitioner alleged the Association was acting in “bad faith” and violating Section 14.8 of its Covenants, Conditions, and Restrictions (CC&Rs). An Administrative Law Judge (ALJ) conclusively found that Section 14.8, which governs notices sent from the Association to its members, was entirely inapplicable to payments sent by a member to the Association. The ALJ determined that the petitioner’s own “volitionally took” actions were the direct cause of the payment delays and subsequent late fees.

The petitioner’s initial petition was denied. A subsequent request for rehearing was granted, but the rehearing affirmed the original decision. The ALJ reiterated that the cited CC&R section was inapplicable, noted a lack of jurisdiction over other statutes the petitioner raised, and concluded that the petitioner had failed to meet his burden of proof in either proceeding.

Case Background and Procedural History

Parties and Governing Documents

• Petitioner: Michael J. Stoltenberg, a condominium owner within the Rancho Del Oro development and a member of the homeowners’ association.

• Respondent: Rancho Del Oro Homeowners Association (“the Association”), a condominium association in Yuma, Arizona, governed by its CC&Rs and overseen by a Board of Directors.

• Governing Authority: The CC&Rs form an enforceable contract between the Association and each property owner. The specific provision at the center of the dispute is Section 14.8 of the Bylaws, titled “Notices.” This section has remained unamended since the original CC&Rs were recorded on August 30, 1985.

Initial Petition and Jurisdictional Scope

On March 2, 2020, Mr. Stoltenberg filed a petition with the Arizona Department of Real Estate, alleging the Association “fail to do their job, and are acting in bad faith.” The petition cited violations of Arizona Revised Statutes (ARIZ. REV. STAT.) §§ 10-3842 and 10-801, as well as Section 14.8 of the Association’s CC&Rs. Mr. Stoltenberg sought an order compelling the Association to comply with these regulations and the issuance of a civil penalty.

Upon filing, the Department advised the petitioner that the HOA Dispute Process lacks jurisdiction over disputes arising from Title 10 of the Arizona Revised Statutes. Consequently, the case was narrowed to a single issue, and the petitioner was assessed a $500 filing fee. The sole issue for the hearing was formally defined as: “Whether the Association violated CC&Rs 14.8.”

Chronology of Legal Proceedings

Outcome

March 2, 2020

Petition filed by Michael Stoltenberg.

The case is initiated.

July 14, 2020

Initial evidentiary hearing is held.

Both parties present arguments.

August 3, 2020

Amended ALJ Decision is issued.

The petitioner’s petition is denied.

August 28, 2020

Petitioner submits a rehearing request.

Grounds cited: errors of law and an arbitrary decision.

September 9, 2020

Rehearing request is granted.

A new hearing is scheduled.

February 16, 2021

Rehearing is held.

The same issue is re-examined.

March 8, 2021

Final ALJ Decision is issued.

The petitioner’s petition is denied again; the order is binding.

Factual Analysis of the Dispute

Payment Instructions and Petitioner’s Actions

On January 4, 2016, the petitioner was advised that the Association’s “primary address for receiving all correspondence and all assessment payments from its members” was PO Box 4333, Yuma, Arizona 85366. The correspondence explicitly stated, “Please send your payments to the above address.”

Despite these clear instructions, beginning in November 2019, the petitioner began sending his monthly assessment payments to this P.O. Box via restricted delivery through the United States Postal Service (USPS), designated for pickup by board member Rhea Carlisle only.

The petitioner’s stated rationale for this change was a belief that an agent of the Association’s property management company (PMC) had previously thrown away one of his mailed payments. However, the petitioner was aware of several key facts:

• The Association employed a PMC to pick up its mail.

• Ms. Carlisle was an unpaid volunteer board member, not an employee of the PMC.

• Diana Crites was the Association’s listed Statutory Agent for 2019 and 2020.

Consequences of Restricted Delivery

The petitioner’s unilateral decision to restrict delivery caused significant disruption to the receipt of his payments. This led to his assessments being recorded as untimely, which in turn resulted in the Association assessing late fees against his account. Additionally, each late payment occurrence placed his residence “in danger of foreclosure by the Association.”

A timeline of payment delivery issues presented as evidence includes:

Payment Period

USPS Action

December 2019

Picked up.

January 25, 2020

Returned to petitioner by USPS.

January 30, 2020

Picked up.

February 26, 2020

Picked up.

April 17, 2020

Picked up.

June 8, 2020

Returned to petitioner by USPS.

Legal Rulings and Core Arguments

Central Legal Text: CC&Rs Section 14.8 (“Notices”)

The entire case hinged on the interpretation of Section 14.8 of the Association’s Bylaws. The text reads:

“Any notice permitted or required by this Declaration or the Bylaws may be delivered either personally or by mail. If delivery is by mail, it shall be deemed to have been delivered seventy-two (72) hours after a copy of the same has been deposited in the United States mail, postage prepaid, addressed to each person at the current address given by such person to the secretary of the Board or addressed to the Unit of such person if no address has been given to the secretary.”

ALJ’s Interpretation: In both the initial decision and the rehearing decision, the ALJ found the language of Section 14.8 to be clear, “neither vague nor ambiguous,” and definitively inapplicable to the case. The ruling stated that the “language of Section 14.8 speaks specifically to the Association’s notice obligation to its members when mailing them information. Section 14.8 has no binding authority or control over homeowners sending mail to the Association.”

Arguments Presented

• He had always technically mailed his monthly payments on time to the correct P.O. Box.

• He filed the petition out of concern over incurring late fees and the potential loss of his home.

• During the rehearing, he argued that the initial decision failed to properly interpret Section 14.8 and should have also applied ARIZ. REV. STAT. § 10-3842 (concerning standards of conduct for nonprofit officers).

• Section 14.8 of the CC&Rs was entirely inapplicable to the facts presented, as it governs the Association’s outbound notice obligations, not a member’s inbound payments.

• The Department and the Office of Administrative Hearings lack jurisdiction under Title 10 of the ARIZ. REV. STAT.

• The petitioner failed to sustain the burden of proof required to show a violation.

Final Conclusions and Order

The Administrative Law Judge’s decisions in both the initial hearing and the rehearing were definitive. The core conclusions of law were as follows:

1. Burden of Proof: The petitioner bore the burden of proving by a preponderance of the evidence that the Association violated the CC&Rs and failed to meet this burden.

2. Inapplicability of CC&Rs Section 14.8: The provision cited by the petitioner was found to be wholly irrelevant to the matter of a homeowner mailing payments to the Association.

3. Assignment of Responsibility: The ALJ concluded that the petitioner’s own choices were the cause of the issue. The decision states, “By restricting the delivery of his monthly assessment payments, Petitioner inadvertently caused delay in their ability to be picked up by the Association.” There was “no credible evidence in the record to suggest that the action(s) Petitioner volitionally took are Respondent’s responsibility.”

4. Rehearing Findings: In the final decision, the ALJ noted that the petitioner “did not introduce any evidence tending to suggest that there was an ‘error in the admission or rejection of evidence or other errors of law…'” or that the prior decision was arbitrary or capricious.

Final Order: Based on the foregoing, the ALJ ordered that the petitioner’s petition be denied. The order issued on March 8, 2021, was binding on the parties, with any further appeal requiring judicial review in superior court within 35 days.

Study Guide: Stoltenberg v. Rancho Del Oro Homeowners Association

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

Short-Answer Quiz

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

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

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

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

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

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

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

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

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

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

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

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Answer Key

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

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

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

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

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

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

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

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

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

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

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Essay Questions

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

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

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

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

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

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

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

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

Answer

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

Arizona Department of Real Estate (Department)

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

Arizona Revised Statutes (ARIZ. REV. STAT.)

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

Association

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

Board of Directors (the Board)

The governing body that oversees the Homeowners Association.

Burden of Proof

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

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

Conclusions of Law

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

Findings of Fact

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

Hearing

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

Jurisdiction

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

Office of Administrative Hearings (OAH)

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

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

Petitioner

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

Petition

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

Preponderance of the Evidence

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

Rehearing

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

Respondent

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

Restricted Delivery

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

Statutory Agent

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

Select all sources
811290.pdf
861466.pdf

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20F-H2020049-REL-RHG

2 sources

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

2 sources

What were the legal and procedural reasons for granting the rehearing request?
How did the interpretation of CC&R Section 14.8 resolve the core dispute?
What was the Petitioner’s basis for claiming a violation against the Association?

Based on 2 sources

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Case Participants

Petitioner Side

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

Respondent Side

  • Nicole Payne (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
    Appeared telephonically for Respondent
  • Rhea Carlisle (board member)
    Rancho Del Oro Homeowners Association
    Unpaid volunteer board member
  • Diana Crites (statutory agent)
    Rancho Del Oro Homeowners Association
    Statutory Agent for 2019 and 2020
  • Lydia Peirce Linsmeier (attorney contact)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
    Recipient of electronic transmission for Respondent in initial decision

Neutral Parties

  • Jenna Clark (ALJ)
    OAH
  • Judy Lowe (Commissioner)
    ADRE
    Commissioner of the Arizona Department of Real Estate
  • Dan Gardner (HOA coordinator)
    ADRE
    Transmitted decision electronically (c/o Commissioner Judy Lowe)