Tag Archives: 2020

Jean Williams v. Surprise Farms II Community Association

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Case Summary

Case ID 20F-H2020054-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-07-30
Administrative Law Judge Tammy L. Eigenheer
Outcome Petitioner failed to prove the HOA violated A.R.S. § 33-1803(A) or the CC&Rs by increasing the Annual Assessment by 20% without a vote, as the increase remained below the Maximum Annual Assessment and complied with the statutory 20% cap.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Jean Williams Counsel —
Respondent Surprise Farms II Community Association Counsel Nick Nogami

Alleged Violations

A.R.S. § 33-1803; CC&Rs Article VII, Section 7.2 and 7.4(a)-(c)

Outcome Summary

Petitioner failed to prove the HOA violated A.R.S. § 33-1803(A) or the CC&Rs by increasing the Annual Assessment by 20% without a vote, as the increase remained below the Maximum Annual Assessment and complied with the statutory 20% cap.

Why this result: Petitioner’s assertion was based on an erroneous reading of the CC&Rs, confusing the maximum automatic increase of the Maximum Annual Assessment (10%) with the limit on the actual Annual Assessment increase.

Key Issues & Findings

Whether the 20% increase in the Annual Assessment effective April 2020 violated statutory limits or CC&R requirements for member approval.

Petitioner alleged the Respondent HOA violated A.R.S. § 33-1803 and the CC&Rs by increasing the Annual Assessment by 20% (from $720 to $864) effective April 2020 without obtaining a 2/3 majority vote of the members.

Orders: Petitioner’s petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1803(A)
  • CC&Rs Article VII, Section 7.2
  • CC&Rs Article VII, Section 7.4

Analytics Highlights

Topics: assessment increase, HOA assessments, statutory compliance, CC&R interpretation
Additional Citations:

  • A.R.S. § 33-1803(A)
  • CC&Rs Article VII, Section 7.2
  • CC&Rs Article VII, Section 7.4

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Video Overview

Audio Overview

Decision Documents

20F-H2020054-REL Decision – 810957.pdf

Uploaded 2026-04-26T09:53:01 (103.0 KB)

20F-H2020054-REL Decision – 810957.pdf

Uploaded 2026-01-23T17:32:37 (103.0 KB)

Briefing on Administrative Law Judge Decision: Williams v. Surprise Farms II Community Association

Executive Summary

This briefing analyzes the Administrative Law Judge (ALJ) decision in case number 20F-H2020054-REL, where petitioner Jean Williams alleged that the Surprise Farms II Community Association improperly increased annual homeowner assessments. The ALJ dismissed the petition, concluding that the Association acted within its authority as defined by both its Covenants, Conditions, and Restrictions (CC&Rs) and Arizona state law.

The central finding of the case is that the petitioner erroneously interpreted the CC&Rs by confusing the “Annual Assessment” (the actual amount charged to homeowners) with the “Maximum Annual Assessment” (a calculated upper limit). The ALJ determined that the Association’s 20% increase in the Annual Assessment for 2020 was permissible because:

1. It did not exceed the 20% year-over-year cap allowed by Arizona Revised Statutes (A.R.S.) § 33-1803(A) without a member vote.

2. The resulting assessment of $864 was significantly below the $2,426 Maximum Annual Assessment permitted for 2020 under the community’s own CC&Rs.

Ultimately, the decision affirms the Board’s discretion to set the Annual Assessment, provided it stays within the dual constraints of the state’s percentage increase limit and the community’s own calculated maximum charge.

Case Overview

• Case Number: 20F-H2020054-REL

• Parties:

◦ Petitioner: Jean Williams

◦ Respondent: Surprise Farms II Community Association

• Administrative Law Judge: Tammy L. Eigenheer

• Hearing Date: July 10, 2020

• Decision Date: July 30, 2020

• Nature of Dispute: The petitioner contested the validity of a 20% increase in the annual homeowners association assessment implemented in April 2020, arguing it required a member vote.

Petitioner’s Allegations

Jean Williams filed a petition with the Arizona Department of Real Estate on March 31, 2020, alleging that the Surprise Farms II Community Association violated its governing documents and state law.

• Core Allegation: The Association illegally increased the “Maximum Monthly Assessment” by 20% without the approval of a two-thirds majority of association members.

• Cited Violations:

◦ A.R.S. § 33-1803: The statute governing assessment increases.

◦ CC&Rs Article VII, Sections 7.2 and 7.4(a)-(c): The sections of the community’s governing documents that outline assessment rules.

• Petitioner’s Argument: Williams contended that the Association’s CC&Rs limited any annual assessment increase to 10% unless a vote was held. She argued that the Association’s justification for the 20% increase, which cited A.R.S. § 33-1803, was a direct violation of the community’s covenants.

Respondent’s Position and Stipulated Facts

The Surprise Farms II Community Association denied all of the petitioner’s complaints. At the hearing, the Association did not present witnesses and relied on its legal argument. The respondent stipulated to the key facts regarding the assessment increases:

• April 2019 Increase: The Annual Assessment increased from $660.00 to $720.00 per year, a 9% increase, without a vote of the members.

• April 2020 Increase: The Annual Assessment increased from $720.00 to $864.00 per year, a 20% increase, without a vote of the members.

Governing Rules and Document Analysis

The ALJ’s decision rested on a detailed interpretation of state law and two distinct concepts within the Association’s CC&Rs: the “Annual Assessment” and the “Maximum Annual Assessment.”

Arizona Revised Statutes (A.R.S.) § 33-1803(A)

This state law establishes a default cap on assessment increases. It states that an association “shall not impose a regular assessment that is more than twenty percent greater than the immediately preceding fiscal year’s assessment without the approval of the majority of the members,” unless the community’s own documents impose an even lower limit.

CC&Rs Article VII: Key Definitions

The case hinged on the distinction between two terms defined in the CC&Rs:

1. Maximum Annual Assessment (Section 7.4): This section defines a ceiling for how much the Board could charge.

◦ It began at $480 in the first year.

◦ Crucially, this maximum automatically increases by up to 10% each year without a member vote.

◦ To raise the Maximum Annual Assessment above this automatic 10% annual increase, a two-thirds vote of members is required.

2. Annual Assessment (Section 7.2): This section defines the actual charge levied against each property.

◦ The Board has “sole discretion” to set this amount each year.

◦ The only limitation is that the Annual Assessment must be less than or equal to the “Maximum Annual Assessment” calculated under Section 7.4.

Administrative Law Judge’s Findings and Conclusion

The ALJ concluded that the petitioner failed to prove by a preponderance of the evidence that the Association violated the CC&Rs or state law. The decision was based on the following key points of analysis:

Erroneous Reading of the CC&Rs

The ALJ found the petitioner’s entire argument was “predicated on her erroneous reading of Article VII, Section 7.4 of the CC&Rs.” The petitioner incorrectly believed the 10% automatic increase to the Maximum Annual Assessment was a cap on the Annual Assessment itself.

The decision explicitly clarifies this distinction:

“Petitioner repeatedly asserted that an increase in the Annual Assessment was limited to ten percent in any given year unless approved by a vote of the members even though Article VII, Section 7.4 was entitled Maximum Annual Assessment and consistently referenced the same. By definition, the existence of a Maximum Annual Assessment necessitates an Annual Assessment that may be less than the maximum.”

Calculation of the Maximum Annual Assessment

The ALJ used the CC&Rs’ formula (a 10% cumulative increase per year since 2003) to calculate the authorized Maximum Annual Assessment for each year. This demonstrated the significant gap between what the Association could charge and what it actually charged.

Maximum Annual Assessment

$480.00

$528.00

$580.80

$638.88

$702.76

$773.03

$850.33

$935.36

$1,028.89

$1,131.77

$1,244.94

$1,369.43

$1,369.43

$1,657.00

$1,822.70

$2,004.97

$2,205.46

$2,426.00

Legality of the 2020 Assessment Increase

The ALJ determined the Association’s 2020 increase was compliant with all rules for two reasons:

1. Compliance with State Law: The increase from $720 to $864 was exactly 20%, which is the maximum allowed under A.R.S. § 33-1803(A) without a member vote.

2. Compliance with CC&Rs: The new Annual Assessment of $864 was substantially lower than the calculated Maximum Annual Assessment of $2,426 allowed for 2020.

The Board therefore acted within its “sole discretion” as granted by Section 7.2 of the CC&Rs.

Final Order

Based on the finding that the Association acted properly, IT IS ORDERED that Petitioner’s petition is dismissed. The decision is binding unless a rehearing is requested within 30 days of the order.

Study Guide: Williams v. Surprise Farms II Community Association

This study guide provides a review of the Administrative Law Judge Decision in case number 20F-H2020054-REL, Jean Williams v. Surprise Farms II Community Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a comprehensive understanding of the case.

Short-Answer Quiz

Answer the following questions in 2-3 complete sentences, based on the provided legal decision.

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

2. What was the central allegation Jean Williams made against the Surprise Farms II Community Association in her petition?

3. What was the specific percentage and dollar amount of the Annual Assessment increase that took effect in April 2020, and was it approved by a vote of the members?

4. According to the decision, which two governing documents did the Petitioner allege the Respondent had violated?

5. What limitation does Arizona Revised Statute (A.R.S.) § 33-1803(A) place on an association’s ability to raise regular assessments?

6. How did the community’s CC&Rs define the relationship between the “Annual Assessment” set by the Board and the “Maximum Annual Assessment”?

7. What was the calculated “Maximum Annual Assessment” for the year 2020, according to the automatic increase formula in the CC&Rs?

8. According to the Administrative Law Judge, what was the petitioner’s fundamental misunderstanding of Article VII, Section 7.4 of the CC&Rs?

9. Who bore the “burden of proof” in this case, and what legal standard was required to meet it?

10. What was the final order issued by the Administrative Law Judge, and on what date was the decision made?

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Quiz Answer Key

1. The primary parties were Jean Williams, who was the Petitioner appearing on her own behalf, and the Surprise Farms II Community Association, which was the Respondent represented by Nick Nogami. The case was adjudicated by Administrative Law Judge Tammy L. Eigenheer.

2. The petitioner alleged that the association improperly increased the Maximum Monthly Assessment by 20% without the required approval from a two-thirds majority of the association members. She claimed this action violated the community’s CC&Rs and that the association incorrectly used A.R.S. § 33-1803 to justify the increase.

3. Effective April 2020, the Annual Assessment increased by twenty percent, from $720.00 per year to $864.00 per year. The respondent stipulated that this increase occurred without any vote of the members.

4. The Petitioner alleged that the Respondent had violated the provisions of A.R.S. § 33-1803 and specific sections of the association’s governing documents: Article VII, Section 7.2 and 7.4(a)-(c) of the Covenants, Conditions, and Restrictions (CC&Rs).

5. A.R.S. § 33-1803(A) states that an association cannot impose a regular assessment that is more than twenty percent greater than the previous fiscal year’s assessment without the approval of a majority of the members. This limit applies unless the community’s own documents impose an even lower limit.

6. Article VII, Section 7.2 of the CC&Rs granted the Board sole discretion to set the Annual Assessment. This discretion was limited by the provision that the amount must be subject to, and therefore less than or equal to, the “Maximum Annual Assessment” as calculated under Section 7.4.

7. Using the annual ten percent increase formula set forth in Article VII, Section 7.4 of the CC&Rs, the calculated Maximum Annual Assessment for the year 2020 was $2,426.00.

8. The judge concluded that the petitioner’s case was predicated on her erroneous reading of the CC&Rs. She incorrectly believed the 10% figure in Section 7.4 applied to the Annual Assessment itself, when in fact it was the automatic escalator for the Maximum Annual Assessment, which served as a ceiling for the board’s discretion.

9. The Petitioner, Jean Williams, bore the burden of proof in this proceeding. She was required to prove her allegations by a “preponderance of the evidence,” which is defined as evidence with the most convincing force.

10. The final order, issued on July 30, 2020, was that the Petitioner’s petition be dismissed. The Judge concluded that the Respondent did not violate the referenced provisions of the CC&Rs or A.R.S. § 33-1803(A).

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Essay Questions

The following questions are designed for longer-form, analytical responses. No answers are provided.

1. Analyze the distinction between “Annual Assessment” and “Maximum Annual Assessment” as defined in the Surprise Farms II CC&Rs. Explain how the petitioner’s failure to differentiate between these two terms was central to the case’s outcome.

2. Explain the interplay between the community’s CC&Rs (specifically Article VII, Sections 7.2 and 7.4) and the state law (A.R.S. § 33-1803(A)). How did the judge determine that the HOA’s actions complied with both governing authorities?

3. Describe the burden of proof in this case. Who held the burden, what was the standard required, and did they successfully meet it? Use specific details from the “CONCLUSIONS OF LAW” section to support your answer.

4. Trace the history of the assessment increases from April 2019 to April 2020. Detail the specific monetary and percentage increases for both years and explain why the 20% increase in 2020 was deemed legally permissible without a member vote, while an increase over 20% would not have been.

5. Discuss the legal reasoning behind the Administrative Law Judge’s decision to dismiss the petition. What specific conclusions of law and interpretations of the CC&Rs led directly to the ruling that the respondent did not improperly increase the annual assessment?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official, in this case Tammy L. Eigenheer, who presides over administrative hearings and makes legal decisions and rulings.

Annual Assessment

As defined in the CC&Rs, “the charge levied and assessed each year against each Lot and Parcel pursuant to Article VII, Section 7.2 hereof.” The Board has sole discretion to set this amount, as long as it does not exceed the Maximum Annual Assessment.

A.R.S. (Arizona Revised Statutes)

The codified laws of the state of Arizona. The specific statute relevant to this case is A.R.S. § 33-1803(A), which governs HOA assessment increases.

Burden of Proof

The obligation on a party in a legal proceeding to prove their allegations. In this case, the Petitioner bore the burden of proving the Respondent violated the law and CC&Rs.

CC&Rs (Covenants, Conditions, and Restrictions)

The governing legal documents that set forth the rules for a planned community or homeowners association. In this case, the CC&Rs for Surprise Farms II were recorded in 2003.

HOA (Homeowners Association)

An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents. The Surprise Farms II Community Association is the HOA in this case.

Maximum Annual Assessment

A ceiling on the Annual Assessment, established by the CC&Rs. This amount was set at $480 initially and designed to increase automatically by ten percent each year without a member vote, serving as the upper limit for the Board’s assessment-setting discretion.

Petitioner

The party who files a petition initiating a legal case. In this matter, Jean Williams was the Petitioner.

Preponderance of the Evidence

The legal standard of proof required in this proceeding. It is met when the evidence presented has the “most convincing force” and shows that a fact is more likely to be true than not true.

Respondent

The party against whom a petition is filed. In this matter, the Surprise Farms II Community Association was the Respondent.

Why This Homeowner Lost Her Lawsuit Against the HOA (And What You Can Learn From It)

1.0 Introduction: The Dreaded HOA Letter

It’s a scenario many homeowners fear: a letter from the Homeowners Association (HOA) announcing a significant and unexpected fee increase. The feeling of frustration and powerlessness can be overwhelming. When Jean Williams received notice that her HOA was raising her annual assessment by a full 20%, she believed the board had overstepped its authority. The increase seemed to be a clear violation of the community’s governing documents, so she decided to fight back and took her HOA to court. The outcome, however, was not what she—or many other homeowners—would have expected.

2.0 The Core Misunderstanding: “Maximum” Dues vs. “Actual” Dues

The foundation of Jean Williams’s case was her belief that the community’s Covenants, Conditions, and Restrictions (CC&Rs) limited any annual fee increase to 10% without a vote from the members. This is where the critical misunderstanding occurred.

The judge in the case identified a crucial distinction in the legal language. The 10% limit mentioned in the CC&Rs did not apply to the Annual Assessment—the actual dollar amount billed to homeowners each year. Instead, it applied to the Maximum Annual Assessment, a theoretical ceiling on how high the fees could potentially go.

But why was this ceiling so high? The CC&Rs were designed so that this Maximum Annual Assessment would increase automatically by 10% every single year since its inception in 2003. This cumulative growth operated silently in the background for over a decade, creating a vast difference between the two figures. For the year 2020, the actual assessment billed to homeowners was $864. However, due to years of automatic increases, the allowable Maximum Annual Assessment had ballooned to $2,426. The board was operating with far more financial latitude than the petitioner realized.

3.0 How State Law Set the Real Limit at 20%

The next layer of this case involves the interplay between the HOA’s documents and state law. An Arizona state law, A.R.S. § 33-1803(A), dictates that an HOA cannot raise regular assessments by more than 20% in a single year without a vote from the majority of members, unless the community’s own documents set a lower limit.

This is the key legal point. Williams believed her community documents did set a lower limit of 10%. Critically, however, that 10% limit applied only to the wrong variable—the theoretical Maximum Annual Assessment ceiling, not the Annual Assessment actually paid. The CC&Rs’ failure to place a specific annual cap on the actual assessment created a legal vacuum. This vacuum was automatically filled by the Arizona state statute, making its 20% cap the only legally binding limit.

The HOA’s increase from $720 to $864 was exactly 20%. This placed their action right at the maximum threshold allowed by state law without requiring a member vote, making it legally permissible.

4.0 The Fine Print: The Power of “Sole Discretion”

The HOA board’s authority was further solidified by specific language embedded in its governing documents. Article VII, Section 7.2 of the CC&Rs explicitly granted the board “sole discretion” to determine the amount of the Annual Assessment.

The true power of this clause was unlocked by its connection to the two types of assessments. The board’s “sole discretion” was the legal tool that allowed them to set the Annual Assessment at any level they chose, provided it did not exceed the automatically growing Maximum Annual Assessment ceiling. With a ceiling of $2,426 and a previous fee of only $720, the board was legally empowered to enact the 20% increase without consulting homeowners.

5.0 The Judge’s Final Word: A Cautionary Tale

Ultimately, the judge concluded that the homeowner’s entire case was built on a misreading of the governing documents. The judge’s decision offers a clear and potent lesson for all homeowners, emphasizing that the precise wording of these legal documents is everything.

In the final decision, the judge wrote:

Petitioner’s assertion that Respondent could not increase the Annual Assessment by twenty percent was predicated on her erroneous reading of Article VII, Section 7.4 of the CC&Rs. … By definition, the existence of a Maximum Annual Assessment necessitates an Annual Assessment that may be less than the maximum.

The judge’s reasoning is precise: creating a “maximum” assessment in a legal document inherently implies the existence of a separate “actual” assessment that can be lower. Williams’s case collapsed because she treated these two distinct legal concepts as one and the same.

6.0 Conclusion: Are You Sure You Know What Your Documents Say?

The case of Jean Williams serves as a powerful reminder of how interlocking legal mechanics can produce unexpected outcomes. The board’s power was not derived from a single rule, but from the synthesis of three distinct elements: a high Maximum Assessment ceiling created by a silent, cumulative growth clause; the board’s “sole discretion” to set actual fees anywhere underneath that ceiling; and the state law’s 20% backstop that became the only relevant limit in the absence of a specific cap in the CC&Rs.

This case proves that the devil is truly in the details. It begs a critical question for every homeowner living in a planned community: When was the last time you read your community’s CC&Rs?

Case Participants

Petitioner Side

  • Jean Williams (petitioner)
    Appeared and testified on her own behalf

Respondent Side

  • Nick Nogami (HOA attorney)
    Surprise Farms II Community Association

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Magnus LD MacLeod v. Mogollon Airpark, Inc. (ROOT)

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Case Summary

Case ID No. 20F-H2019019-REL (Root), No. 20F-H2019034-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-07-28
Administrative Law Judge Kay Abramsohn
Outcome Petitioner MacLeod's challenge to the HOA's Amendment (Petition #19) was dismissed. The HOA's cross-petition (Petition #34) was partially affirmed, finding MacLeod in violation of the Amendment by living full-time in his hangar/home. The HOA (Mogollon Airpark, Inc.) was deemed the prevailing party in the cross-petitions, and each party was ordered to bear its own filing fee.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Magnus L.D. MacLeod Counsel Jeffrey M. Proper, Esq.
Respondent Mogollon Airpark, Inc. Counsel Gregory A. Stein, Esq.

Alleged Violations

A.R.S. § 33-1817(A)(1), (A)(2)(a), and (A)(2)(b)

Outcome Summary

Petitioner MacLeod's challenge to the HOA's Amendment (Petition #19) was dismissed. The HOA's cross-petition (Petition #34) was partially affirmed, finding MacLeod in violation of the Amendment by living full-time in his hangar/home. The HOA (Mogollon Airpark, Inc.) was deemed the prevailing party in the cross-petitions, and each party was ordered to bear its own filing fee.

Why this result: Petitioner MacLeod failed to prove the Amendment was improperly adopted, and the HOA successfully proved MacLeod was in violation of the Amendment regarding full-time residency.

Key Issues & Findings

Challenge to the proper adoption of the October 18, 2018 Amendment to the Declaration (Petition #19)

Petitioner MacLeod alleged that the Amendment substantially altering residential usage in Tract Hangar/Homes was improperly adopted because it applied to fewer than all lots and thus required unanimous approval under A.R.S. § 33-1817(A)(2).

Orders: Petition #19 was dismissed because the Amendment was found to be properly adopted requiring 75% approval pursuant to the Declaration and A.R.S. § 33-1817(A)(1) [40, 44a].

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1817(A)(1)
  • A.R.S. § 33-1817(A)(2)
  • A.R.S. § 33-1817(A)(2)(a)
  • A.R.S. § 33-1817(A)(2)(b)

Analytics Highlights

Topics: HOA Amendment Validity, Planned Community, Homeowner Violation, Full-Time Residency, Hangar Home, Statutory Interpretation 33-1817, Cross-Petitions, Filing Fee Bear Own Costs
Additional Citations:

  • A.R.S. 33-1801 et seq.
  • A.R.S. § 33-1817(A)(1)
  • A.R.S. § 33-1817(A)(2)
  • 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
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov

Video Overview

Audio Overview

Decision Documents

20F-H2019019-REL Decision – 810246.pdf

Uploaded 2026-04-24T11:23:53 (188.3 KB)

Administrative Law Judge Decision: MacLeod v. Mogollon Airpark, Inc.

Executive Summary

This briefing document outlines the findings and decision of an Administrative Law Judge (ALJ) in the cross-petitions between Magnus L.D. MacLeod and Mogollon Airpark, Inc. (MAP). The central dispute revolves around the validity of a 2018 Amendment to the community’s Declaration and MacLeod’s alleged violation of this Amendment by residing full-time in an aircraft hangar.

MacLeod (Petition #19) contended that the Amendment was invalid because it was not unanimously approved by all lot owners, as he argued was required by Arizona statute A.R.S. § 33-1817(A)(2) since it applied to fewer than all properties. MAP (Petition #34) argued the Amendment was properly adopted with the required 75% approval and that MacLeod was in violation by living in his Tract G hangar, which also allegedly failed to meet the minimum living space requirement.

The ALJ ruled decisively in favor of Mogollon Airpark, Inc., deeming it the prevailing party. The judge concluded that the Amendment was properly adopted under the 75% approval threshold outlined in the community’s Declaration and A.R.S. § 33-1817(A)(1), thereby dismissing MacLeod’s petition. On MAP’s petition, the ALJ found that MacLeod had indeed violated the Amendment by living full-time in the hangar, affirming that part of the petition. However, the ALJ dismissed MAP’s claim regarding the hangar’s living space size due to insufficient evidence. The final order dismisses Petition #19, partially affirms and partially dismisses Petition #34, and orders each party to bear their own filing fees.

Case Overview

Case Numbers

No. 20F-H2019019-REL (Root), No. 20F-H2019034-REL

Parties

Petitioner: Magnus L.D. MacLeod
Respondent: Mogollon Airpark, Inc. (MAP)

Jurisdiction

Arizona Department of Real Estate, Office of Administrative Hearings

Administrative Law Judge

Kay Abramsohn

Hearing Date

June 19, 2020

Decision Date

July 28, 2020

The Cross-Petitions

The legal conflict originated from two separate petitions filed with the Arizona Department of Real Estate.

Petition #19: Filed by Magnus L.D. MacLeod

• Filing Date: On or about October 15, 2019.

• Core Allegation: MAP violated Arizona statute A.R.S. § 33-1817(A)(1), (A)(2)(a), and (A)(2)(b) in its adoption of the October 18, 2018 “Amendment to Declaration of Establishment of Conditions, Reservations and Restrictions…”

• MacLeod’s Argument: The Amendment could not be enforced because it lacked the affirmative vote or written consent of all owners of the property to which it applied. He specifically noted that three of the nine Real Property Tracts (Tract G, Tract H, and Tract M) did not provide an affirmative vote and that he personally did not sign it. He argued the amendment required unanimous approval.

Petition #34: Filed by Mogollon Airpark, Inc. (MAP)

• Filing Date: On or about December 16, 2019.

• Core Allegations:

1. Violation of the Amendment: MacLeod was in continued violation of the properly adopted Amendment by living full-time in his Tract G aircraft storage hangar.

2. Violation of Square Footage Requirement: MAP alleged, upon information and belief, that the living space in the hangar was “only 549 square feet,” which violated the Declaration’s requirement that structures for living purposes contain no less than 1,200 square feet.

• Requested Relief: MAP sought enforcement of the Declaration and Amendment, including injunctive relief to compel MacLeod’s compliance, and an award of its attorney’s fees and costs.

Analysis of the Disputed Amendment

The conflict centers on an amendment recorded on October 18, 2018. This amendment introduced several significant changes to the community’s governing documents.

Key Provisions of the Amendment

• Creates Two Lot Categories: The Amendment establishes “Residential lots” (lots #178 through #213) and “Hangar Tracts” (Tracts E through M).

• Regulates Hangar Use: It designates Tracts E through M for the purpose of “aircraft storage only.”

• Restricts Occupancy: While guest quarters may be constructed within a hangar, they are for “temporary living only.” “Temporary” is explicitly defined as “not longer than four months per calendar year.” An owner can request an extension in special circumstances.

• Maintains Living Space Requirement: It affirms that any single-family structure or combination hangar/house must have a living area of “not less than 1,200 square feet.”

• Adds Taxiway Access: The Amendment adds Lot 213 to the list of properties authorized to use the aircraft taxiway. This change was necessitated by a fence MacLeod had erected that blocked the Lot 213 owner’s access.

MacLeod’s Objections to the Amendment

In his petition, MacLeod argued the Amendment fundamentally and unreasonably altered the original covenants:

• It “substantially alters” the covenants for Tract Hangar/Homes by imposing the new four-month temporary living limit where unrestricted usage was previously allowed.

• It replaced the allowance for “Guest Homes with Kitchens” with “Guest Quarters without Kitchens,” impacting Tract G.

• It created a “large burden upon me to buy or build an additional home that I do not want and do not need.”

Background and History of the Dispute

• Property Acquisition: MacLeod purchased Tract G from his brother, Pat MacLeod, in February 2017 with the stated expectation of living in the hangar/home full-time.

• Occupancy: After acquiring the property, MacLeod made interior improvements and began living full-time in the aircraft hangar.

• Conflict Origin: The issue of MacLeod’s full-time residency first arose in May 2017 when he requested to build a group home for disabled veterans, a request that drew opposition from other lot owners.

• Initial Violation Notice: On September 18, 2017, MAP’s Architectural Committee sent MacLeod a letter notifying him that living full-time in a hangar intended for aircraft storage was a violation and requested he vacate within 60 days.

• Formal Non-Compliance Notices & Fines:

◦ December 29, 2018: MAP issued a “First Notice of Non-Compliance,” imposing a $100 fine.

◦ April 29, 2019: MAP issued a “Second Notice: Non-Compliance,” imposing an additional $200 fine if the violation was not remedied.

Legal Framework and Adjudicated Issues

The central legal question was the standard of approval required to pass the Amendment. The parties stipulated that the core dispute was whether a 75% approval or a unanimous approval was necessary.

Stipulated Fact #11

The parties agreed to the following crucial point, which narrowed the scope of the legal argument:

“The AMENDMENT contains at least the required minimum signatures and authorizations from the Lot Owners in Unit IVB to adopt the AMENDMENT, provided that unanimous approval of all affected property owners was not required.”

Conflicting Legal Standards

• Declaration Requirement (75% Rule): The original Declaration states it can be amended “by an instrument in writing, executed and acknowledged by the owners of not less than three-fourths of the lots in said subdivision…”

• Arizona Statute (Unanimous Rule): A.R.S. § 33-1817(A)(2) requires unanimous “affirmative vote or written consent of all of the owners of the lots or property to which the amendment applies” if the amendment “apply to fewer than all of the lots or less than all of the property that is bound by the Declaration.”

Parties’ Core Arguments

• MacLeod’s Position: The Amendment required unanimous approval under A.R.S. § 33-1817(A)(2) because it applied to “fewer than all the lots,” specifically pointing out that Tract B (a common area) was not included.

• MAP’s Position: The 75% rule under A.R.S. § 33-1817(A)(1) was the applicable standard. MAP argued that Tract B was a common area not subject to the Declaration’s conditions, so its exclusion from an amendment concerning residential use was irrelevant and did not trigger the unanimity requirement.

Administrative Law Judge’s Decision and Rationale

The ALJ’s conclusions systematically addressed each petition.

Ruling on Petition #19 (Amendment Validity)

• Conclusion: The Amendment was properly adopted.

• Rationale: The ALJ concluded that the 75% approval threshold, as specified in the Declaration and permitted by A.R.S. § 33-1817(A)(1), was the correct standard. Because the parties stipulated that the 75% threshold had been met, MAP was not in violation of the statute.

• Outcome: Petition #19 was dismissed.

Ruling on Petition #34 (MacLeod’s Violations)

• Conclusion on Full-Time Occupancy: MacLeod was in violation of the Amendment by living full-time in the Tract G Hangar/Home.

• Rationale: MacLeod acknowledged living there full-time. His testimony regarding when he ceased this practice was found to be “widely inconsistent,” and the ALJ could not conclude that the violation had stopped by the time MAP filed its petition.

• Outcome: This allegation in Petition #34 was affirmed.

• Conclusion on Living Space Requirement: MAP failed to prove its allegation that the living space was less than the required 1,200 square feet.

• Rationale: MAP did not clearly document or otherwise prove its claim that the living space was only 549 square feet. MacLeod, in contrast, cited a 2007 architectural committee sign-off indicating 1,656 square feet.

• Outcome: This allegation in Petition #34 was dismissed.

• Conclusion on Injunctive Relief: The Tribunal lacked the authority to grant the requested relief.

• Rationale: MAP “cited no statutory authority of this Tribunal with regard to ‘enforcement’ of a homeowner’s association governing documents or with regard to any injunctive relief.”

Final Order

1. Prevailing Party: Mogollon Airpark, Inc. (MAP) is deemed the prevailing party in the cross-petitions.

2. Petition #19 (MacLeod v. MAP): Dismissed.

3. Petition #34 (MAP v. MacLeod):

◦ Partially affirmed as to the allegation of MacLeod living full-time in the Tract G Hangar/Home in violation of the Amendment.

◦ Partially dismissed as to the allegation regarding the amount of living space within the hangar.

4. Filing Fees: Each party shall bear their own filing fee.

Study Guide: MacLeod v. Mogollon Airpark, Inc.

Short-Answer Quiz

1. What were the two primary allegations made by Mogollon Airpark, Inc. (MAP) in its petition (Petition #34) against Magnus L.D. MacLeod?

2. What was the core argument presented by Magnus L.D. MacLeod in his petition (Petition #19) regarding the October 18, 2018 Amendment?

3. According to the original Declaration, what was the minimum approval threshold required to amend it?

4. How did the Amendment of October 18, 2018 change the rules regarding residency in Hangar Tracts like Tract G?

5. What was the central legal question that the parties stipulated to regarding the adoption of the Amendment?

6. Describe the two notices that MAP issued to MacLeod prior to filing its petition.

7. What argument did MacLeod make regarding A.R.S. § 33-1817(A)(2) and why he believed the Amendment required unanimous approval?

8. Why was MAP’s allegation regarding the living space in MacLeod’s Tract G hangar (that it was only 549 sq. ft.) dismissed by the Administrative Law Judge?

9. What was MacLeod’s testimony regarding his occupancy of the Tract G hangar, and how did the Administrative Law Judge view this testimony?

10. What was the final order of the Administrative Law Judge regarding Petition #19 and Petition #34, and which party was deemed the prevailing party?

Answer Key

1. In Petition #34, MAP first alleged that MacLeod was in continued violation of the Amendment by living full-time in his Tract G aircraft storage hangar. Second, MAP requested enforcement of the Declaration and Amendment, seeking injunctive relief and an award of its attorney’s fees and costs.

2. MacLeod’s petition alleged that the Amendment was unenforceable because it was not properly adopted pursuant to A.R.S. § 33-1817. He argued it did not receive the affirmative vote or written consent of all owners of the property to which the amendment applied, specifically noting that owners of three of the nine affected tracts (G, H, and M) did not consent.

3. The original Declaration stipulated that it could be amended by “an instrument in writing, executed and acknowledged by the owners of not less than three-fourths of the lots in said subdivision.” This represents a 75% approval threshold.

4. The Amendment established that guest quarters in aircraft storage hangars (Tracts E through M) were for “temporary living only,” which was defined as “not longer than four months per calendar year.” It also specified that such quarters could not be used as a permanent residence.

5. The parties stipulated that the central dispute was whether the Amendment required 75% approval from lot owners as specified in the Declaration, or if it required unanimous approval from all affected property owners pursuant to A.R.S. § 33-1817(A)(2).

6. On December 29, 2018, MAP issued a “First Notice of Non-Compliance” with a $100 fine for living full-time in the hangar. On April 29, 2019, MAP issued a “Second Notice: Non-Compliance,” imposing an additional $200 fine if the violation was not remedied.

7. MacLeod argued that pursuant to A.R.S. § 33-1817(A)(2), unanimous approval was required because the Amendment applied to fewer than all the lots bound by the Declaration. He specifically pointed out that Tract B, a common area, was not included in the Amendment.

8. The Administrative Law Judge dismissed this part of MAP’s petition because MAP failed to clearly document or prove its allegation. The judge concluded that MAP did not sufficiently demonstrate that the living space within the Tract G Hangar/Home was less than the required 1,200 square feet.

9. MacLeod gave widely inconsistent dates for his full-time occupancy of the hangar and testified that he had moved to Concho in January 2019. The Administrative Law Judge found his testimony inconsistent and could not conclude that MacLeod had stopped living in the hangar at the time Petition #34 was filed.

10. The judge ordered that MacLeod’s Petition #19 be dismissed entirely. The judge partially dismissed MAP’s Petition #34 regarding the living space allegation but affirmed the allegation that MacLeod was living in the hangar in violation of the Amendment. MAP was deemed the prevailing party in the cross-petitions.

Essay Questions

1. Analyze the conflicting interpretations of A.R.S. § 33-1817 presented by Magnus L.D. MacLeod and Mogollon Airpark, Inc. Explain why the Administrative Law Judge ultimately sided with MAP’s interpretation that A.R.S. § 33-1817(A)(1) was the applicable statute.

2. Trace the timeline of the dispute, starting with MacLeod’s purchase of Tract G and his proposal for a group home. Discuss how the actions and reactions of both parties escalated the conflict, leading to the filing of cross-petitions with the Department of Real Estate.

3. Evaluate the evidence presented by both parties. How did the parties’ joint stipulation of facts narrow the central legal issue? Discuss the impact of MacLeod’s inconsistent testimony on the judge’s final decision regarding his residency.

4. MacLeod argued that MAP had waived its right to enforce the Amendment due to “longstanding and widespread utilization of Tract Hanger/Homes as full-time residences.” Although the Judge did not address this argument due to jurisdictional limits, construct an argument for or against this claim based on the facts available in the decision.

5. Discuss the scope and limitations of the Administrative Law Judge’s authority in this case. Why was the Judge able to rule on the validity of the Amendment’s adoption and MacLeod’s violation, but not grant MAP’s request for injunctive relief and enforcement?

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The judicial authority, Kay Abramsohn, who presided over the hearing and issued the decision in this case.

A.R.S. § 33-1817

Arizona Revised Statute governing the amendment of a planned community’s Declaration. Subsection (A)(1) allows amendment by the vote specified in the Declaration, while (A)(2) requires unanimous consent of affected owners if the amendment applies to fewer than all lots.

Amendment

The “Amendment to Declaration of Establishment of Conditions, Reservations and Restrictions…” recorded on October 18, 2018. It created categories for Residential and Hangar lots and restricted hangar occupancy to temporary living of no more than four months per year.

A colloquial acronym used by the Petitioner to refer to the original “Declaration of Establishment of Conditions, Reservations and Restrictions and Mutual and Reciprocal Covenants and Liens Running with the Land.”

Declaration

The original governing document for Mogollon Airpark, Inc., establishing conditions, reservations, and restrictions for the properties. It required a three-fourths (75%) vote of lot owners to be amended.

Hangar Tracts

Tracts E through M, inclusive, as designated by the Amendment for the primary purpose of aircraft storage, though guest quarters for temporary living are permitted.

Magnus L.D. MacLeod

The Petitioner in Petition #19 and Respondent in Petition #34. He is the owner of Tract G and resided in the hangar on that property.

Mogollon Airpark, Inc. (MAP)

The Respondent in Petition #19 and Petitioner in Petition #34. It is the planned community association responsible for administering the Declaration.

Petition #19

The petition filed by Magnus L.D. MacLeod on October 15, 2019, alleging MAP improperly adopted the Amendment in violation of Arizona statute.

Petition #34

The petition filed by Mogollon Airpark, Inc. on December 16, 2019, alleging MacLeod was violating the Amendment by living full-time in his hangar.

Preponderance of the evidence

The standard of proof required in the hearing, defined as evidence that is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”

Residential Lots

Lots numbered 178 through 213, inclusive, as categorized by the Amendment.

Tract G

An aircraft storage hangar lot in Unit 4B owned by Magnus L.D. MacLeod, which was the central property in the dispute.

Unit 4B

The specific subdivision within Mogollon Airpark subject to the Declaration and Amendment. It includes Lots 178-213 and Tracts B, E, F, G, H, I, J, K, L, and M.

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20F-H2019019-REL

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This administrative law judge decision concerns cross-petitions filed by Magnus L.D. MacLeod and Mogollon Airpark, Inc. (MAP) regarding disputes within a planned community association in Arizona. MacLeod’s petition challenged the validity of an amendment to the community’s governing documents (CC&Rs), arguing it was improperly adopted and unreasonably altered prior usage rights for hangar/homes, specifically his Tract G property. MAP’s petition alleged that MacLeod was in continued violation of the amendment by living full-time in his aircraft storage hangar and requested injunctive relief to compel compliance. The judge ruled to dismiss MacLeod’s petition, finding the amendment was properly adopted, and partially affirmed MAP’s petition, concluding that MacLeod had violated the amendment by residing full-time in the hangar. Ultimately, MAP was deemed the prevailing party in the proceedings.

1 source

What were the central legal issues and findings in this property dispute case?
How did the contested amendment change the community’s declaration and rules?
What were the core arguments and outcomes for each party involved in this hearing?

Based on 1 source

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Case Participants

Petitioner Side

  • Jeffrey M. Proper (attorney)
    JEFFREY M. PROPER, PLLC
    Counsel for Magnus L.D. MacLeod

Respondent Side

  • Gregory A. Stein (attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
    Counsel for Mogollon Airpark, Inc.
  • Craig Albright (board member)
    MAP Board of Directors
    Then President of the MAP Board of Directors

Neutral Parties

  • Kay Abramsohn (ALJ)
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate

Other Participants

  • Magnus L.D. MacLeod (party)
    Petitioner in 20F-H2019019-REL and Respondent in 20F-H2019034-REL
  • Pat MacLeod (HOA president)
    HOA
    Brother of Petitioner; previous owner of Tract G; appeared to be HOA President around 2017

Susan L Alandar v. Ventana Lakes Property Owners’ Association

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Case Summary

Case ID 20F-H2020046-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-07-23
Administrative Law Judge Tammy L. Eigenheer
Outcome The Petitioner's petition alleging violations of statute and community documents was denied in its entirety. Two issues were found moot because the prohibited action had already concluded, and the other two issues failed because the Petitioner did not meet the burden of proof to establish a violation.
Filing Fees Refunded $2,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Susan L. Alandar Counsel —
Respondent Ventana Lakes Property Owners' Association Counsel Nicholas Nogami

Alleged Violations

A.R.S. § 33-1804
CC&R’s Article V Section C; Bylaws Article IV.E.8; Ventana Lakes Rule 8.4.A
CC&R’s Article III Section A; CC&R’s Article IV Section C.23; Bylaws Article IV.E.8; Ventana Lakes Rule 8.4.A
Ventana Lakes Rule 8.3.B.1.b

Outcome Summary

The Petitioner's petition alleging violations of statute and community documents was denied in its entirety. Two issues were found moot because the prohibited action had already concluded, and the other two issues failed because the Petitioner did not meet the burden of proof to establish a violation.

Why this result: Issues 2 and 3 were moot. Issues 1 and 4 failed on the merits because the evidence did not prove the HOA violated the cited statute or rule.

Key Issues & Findings

Board conducted interviews of candidates in closed executive session.

Petitioner alleged the Board improperly conducted interviews for Board vacancies in closed sessions. The Board admitted to the practice but asserted they did so to elicit personal, health, or financial information, which is a statutory exception to the open meeting law.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1804

Discriminately penalized homeowners/members (Italian American Club).

Petitioner alleged the HOA wrongfully penalized and denied use of facilities to the Italian American Club (IAC). This issue was based on a specific one-year prohibition on facility use imposed after the IAC violated rules regarding moving furniture.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • Article V, Section C of the CC&Rs
  • Article IV.E.8 of the Bylaws
  • Ventana Lakes Rules 8.4.A

Refusal of homeowners' use of facilities without authorization by rule.

Petitioner alleged the HOA wrongfully denied the Italian American Club use of facilities following an incident where club members moved tables against HOA rules, resulting in a one-year ban on facility use.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • Article III, Section A of the CC&Rs
  • Article IV, Section C.23 of the CC&Rs
  • Article IV.E.8 of the Bylaws
  • Ventana Lakes Rules 8.4.A

Refusal to place written requests for Board action on the agenda.

Petitioner argued that Ventana Lakes Rule 8.3.B.1.b required the Board president to include every single written request from members on the next upcoming Board meeting agenda, which the Board had failed to do.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • Ventana Lakes Rule 8.3.B.1.b

Analytics Highlights

Topics: HOA Open Meetings, Executive Session, Mootness, Facility Use Suspension, Agenda Setting
Additional Citations:

  • A.R.S. § 33-1804
  • Article IV, Section E of the Bylaws
  • Article 5, Section C of the CC&Rs
  • Article IV, Section C(23) of the CC&Rs
  • Article XII, Section B of the CC&Rs
  • Article III, Section A of the CC&Rs
  • Ventana Lake Rules 8.3.B
  • Ventana Lake Rules 8.4.A
  • A.R.S. § 32-2199
  • A.R.S. § 32-2199.02

Video Overview

Audio Overview

Decision Documents

20F-H2020046-REL Decision – 809207.pdf

Uploaded 2026-04-24T11:25:42 (157.4 KB)

20F-H2020046-REL Decision – 809207.pdf

Uploaded 2026-01-23T17:31:55 (157.4 KB)

Administrative Law Judge Decision: Alandar vs. Ventana Lakes POA

Executive Summary

This briefing document analyzes the Administrative Law Judge (ALJ) decision in case number 20F-H2020046-REL, involving a dispute between Petitioner Susan L. Alandar and the Ventana Lakes Property Owners’ Association (the “Respondent” or “Board”). The petition, filed with the Arizona Department of Real Estate, alleged multiple violations of state statutes and the Association’s governing documents. The ALJ ultimately denied the petition in its entirety, finding that the Petitioner failed to meet the burden of proof by a preponderance of the evidence for any of her claims.

The key takeaways from the decision are as follows:

• Board Candidate Interviews: The Board’s practice of interviewing candidates for board vacancies in closed executive sessions was deemed permissible. The ALJ found that these sessions were appropriately used to elicit personal, health, or financial information relevant to a candidate’s ability to serve, which is an exception to Arizona’s open meeting law (A.R.S. § 33-1804).

• Sanctions Against a Club: The Petitioner’s challenge to a one-year ban on facility use imposed upon the Italian American Club (IAC) was dismissed as moot. Because the one-year penalty had expired before the hearing date, the ALJ concluded there was no active issue to rule on or remedy to order.

• Agenda Setting Authority: The ALJ determined that the Board president possesses broad, inherent authority in setting the agenda for Board meetings. The governing rules do not require the president to place every written request from an Association member onto the agenda for the next meeting.

• Burden of Proof: Across all issues, the Petitioner failed to provide sufficient evidence to convince the judge that her contentions were “more probably true than not.” The decision repeatedly highlights the lack of evidence to support the claims of improper conduct.

Case Overview

On February 3, 2020, Petitioner Susan L. Alandar filed a petition alleging that the Ventana Lakes Property Owners’ Association violated Arizona state law and several provisions of its own Covenants, Conditions & Restrictions (CC&Rs), Bylaws, and Rules. After paying an additional filing fee, the Petitioner presented four distinct issues for the hearing held on June 11, 2020. The final decision was issued on July 23, 2020.

Case Detail

Information

Case Number

20F-H2020046-REL

Petitioner

Susan L. Alandar

Respondent

Ventana Lakes Property Owners’ Association

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

Hearing Date

June 11, 2020

Decision Date

July 23, 2020

Final Disposition

Petitioner’s petition is denied.

Detailed Analysis of Allegations and Rulings

Issue 1: Board Candidate Interviews in Executive Session

• Allegation: The Petitioner contended that the Board of Directors violated A.R.S. § 33-1804 (Arizona’s open meeting law for HOAs) by interviewing candidates for Board appointments in closed executive sessions.

• Factual Background: The Respondent acknowledged that prior to June 2019, its practice was to conduct interviews, discussions, and votes to fill Board vacancies entirely within executive session, announcing the result in an open meeting. After this practice was questioned, the Board changed its procedure. Since June 2019, the Board has conducted candidate interviews in executive session specifically to “elicit private information that may impact the candidate’s ability to perform the duties of a Board member.” An example provided was a candidate who revealed his wife’s dementia diagnosis, which would take priority over Board duties. Under this revised process, the final vote on candidates is cast in an open session, and candidates also participate in an open forum where members can ask questions.

• Conclusion of Law: The ALJ found that the uncontroverted evidence showed the executive sessions were used for the purpose of discussing “personal, health, or financial information,” which is a specific exception allowed under A.R.S. § 33-1804. The decision states, “While Petitioner may believe the interviews were being conducted in executive session for nefarious purposes, no evidence was presented to establish such motives existed.” Consequently, the Petitioner failed to establish a violation.

Issues 2 & 3: Penalties and Facility Use Denial for the Italian American Club

• Allegation: The Petitioner argued that the Respondent wrongfully penalized the Italian American Club (IAC) and denied its members use of facilities, asserting that this action was discriminatory and not authorized by rule, in violation of CC&R’s Article V Section C and other community documents.

• Factual Background:

◦ In January 2018, the Board met with the IAC regarding non-compliance with rules and warned that failure to comply could result in the loss of privileges to use the Yacht Club.

◦ On April 4, 2019, an incident occurred where IAC members, after their last-minute request for more tables and chairs was denied, were observed on security cameras moving furniture from a storage area themselves. This was against Association rules, reportedly due to insurance policy limitations on volunteers moving tables.

◦ The situation escalated into a verbal altercation. Even after staff agreed to set up the requested tables, IAC members were again seen moving more furniture.

◦ On April 17, 2019, after reviewing video and audio recordings of the incident, the Board revoked the IAC’s right to use all Association facilities for a one-year period, from May 1, 2019, to April 30, 2020.

• Conclusion of Law: The ALJ found that the one-year prohibition on the IAC’s use of facilities had expired on April 30, 2020, prior to the June 11, 2020 hearing. As no evidence was presented that the revocation was still in effect, the matter was declared moot. The decision notes that even if the judge had found the revocation improper, she could not order any action because the penalty was no longer active. The ALJ did not rule on the merits of whether the Board’s action was initially justified.

Issue 4: Refusal to Place Member Items on Board Meeting Agenda

• Allegation: The Petitioner claimed the Board violated Ventana Lakes Rule 8.3.B.1.b by refusing to place homeowners’ written requests for Board action on the agenda for upcoming Board meetings. The Petitioner’s position was that the rule required the Board president to place any such item on the agenda.

• Factual Background: Both parties agreed that the Board president had received written requests from members that were not subsequently included on a meeting agenda. The Petitioner herself acknowledged during the hearing that it would be impractical for the president to include every single request if, for example, hundreds were received for a single meeting.

• Conclusion of Law: The ALJ determined that the “plain language” of the rule does not mandate that all requests must be placed on the agenda. The judge used the Petitioner’s own hypothetical concession to demonstrate that the Board president must have “inherent authority to limit the number of items to be included.” The ruling concluded that the president’s authority in setting the agenda is “broad” and that the Petitioner failed to prove a violation of the rule.

Key Referenced Authority

The decision was based on an interpretation of the following Arizona statutes and Ventana Lakes governing documents:

Document

Provision

Relevance to the Case

Arizona Revised Statutes

A.R.S. § 33-1804

Open Meetings: Allows meetings to be closed for specific reasons, including discussion of “Personal, health or financial information about an individual member.”

Article III, Section A

Easements of Enjoyment: Gives the Board the right to suspend any Resident from using Common Areas and to regulate their use through rules.

Article IV, Section C

Health, Safety and Welfare: Allows the Board to make rules restricting activities deemed a nuisance or to adversely affect the health, safety, or welfare of residents.

Article V, Section C

Ventana Lakes Rules: Grants the Association power to adopt and repeal rules governing the use of Common Areas, provided they are not discriminatory or inconsistent.

Bylaws

Article IV.E.8

Board Powers: Grants the Board the power to adopt, amend, and enforce rules covering the operation and use of all property.

Ventana Lakes Rules

Rule 8.3.B

Board President Duties: States the president shall prepare agendas and “ensure that written requests for Board action…are placed on the agenda.” (Interpreted by ALJ).

Final Order

The Administrative Law Judge concluded the hearing with a definitive ruling:

“IT IS ORDERED that Petitioner’s petition is denied.”

This order is binding unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the order.

Study Guide: Alandar v. Ventana Lakes Property Owners’ Association

This study guide provides a review of the Administrative Law Judge Decision in case number 20F-H2020046-REL, concerning a dispute between Petitioner Susan L. Alandar and Respondent Ventana Lakes Property Owners’ Association. The guide includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a comprehensive understanding of the case’s facts, arguments, and legal conclusions.

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Short-Answer Quiz

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

1. What were the initial steps Susan L. Alandar took to begin the HOA dispute process, and when did she file her petition?

2. What was the Ventana Lakes Board’s practice regarding interviewing candidates for Board vacancies both before and after June 2019?

3. What was the core of the dispute regarding the Italian American Club (IAC), and what specific action by the club led to the conflict on April 4, 2019?

4. What penalty did the Board of Directors impose on the Italian American Club, and for what duration?

5. Why did the Administrative Law Judge ultimately dismiss Issues 2 and 3 (concerning the IAC) as moot?

6. What was the Petitioner’s argument regarding the Board President’s responsibility for setting the meeting agenda under Ventana Lakes Rule 8.3.B.1.b?

7. How did the Administrative Law Judge interpret the Board President’s authority and discretion in setting the agenda?

8. Which party bears the “burden of proof” in this type of hearing, and what is the standard of proof required?

9. According to Arizona statute A.R.S. § 33-1804, when is it permissible for a Board of Directors to hold a closed or executive session?

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

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Answer Key

1. On or about February 3, 2020, Susan L. Alandar filed a Homeowners Association (HOA) Dispute Process Petition with the Arizona Department of Real Estate. She initially indicated two issues would be presented and paid a $1000.00 filing fee.

2. Prior to June 2019, the Board conducted candidate interviews, discussions, and votes in closed executive sessions. After June 2019, the Board conducted interviews in executive session to elicit private information but held the final vote in an open session.

3. The dispute centered on the IAC’s non-compliance with association rules. The conflict on April 4, 2019, was triggered when IAC members were observed on security cameras moving tables and chairs from a storage area against the instructions of the facilities manager.

4. In an executive session on April 17, 2019, the Board revoked the Italian American Club’s ability to use all of the association’s facilities. The penalty was for a period of one year, from May 1, 2019, to April 30, 2020.

5. The Judge dismissed these issues as moot because the one-year prohibition on the IAC’s use of facilities had already expired at the time of the hearing. Since the penalty was no longer in effect, the Judge could not order the Respondent to take any corrective action.

6. The Petitioner argued that Rule 8.3.B.1.b required the Board president to place any written request for Board action from an association member onto the agenda for the next meeting. She contended this was a mandatory duty, regardless of the nature or number of requests.

7. The Judge concluded that the rule’s plain language does not require every request to be placed on the agenda. Citing the impracticality of including hundreds of hypothetical requests, the Judge found that the Board President has broad, inherent authority to limit the items on the agenda.

8. The Petitioner bears the burden of proof to establish that the Respondent committed the alleged violations. The required standard of proof is a “preponderance of the evidence.”

9. A.R.S. § 33-1804 allows a portion of a meeting to be closed to consider specific matters, including personal, health, or financial information about an individual member or employee of the association. The Board used this exception to justify holding candidate interviews in executive session.

10. The final order issued on July 23, 2020, was that the Petitioner’s petition is denied.

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Essay Questions

The following questions are designed for deeper analysis and discussion. Formulate comprehensive answers based on the facts and legal reasoning presented in the decision.

1. Analyze the Board of Directors’ evolving practice for interviewing candidates for board vacancies (Issue 1). Discuss how their pre- and post-June 2019 methods relate to the specific language and exceptions outlined in A.R.S. § 33-1804.

2. Explain the legal concept of “mootness” as it was applied to the sanctions against the Italian American Club (Issues 2 and 3). Why was the Administrative Law Judge unable to rule on the propriety of the Board’s actions, and what does this imply about the timing of legal challenges in HOA disputes?

3. Compare and contrast the Petitioner’s interpretation of Ventana Lakes Rule 8.3.B.1.b with the Administrative Law Judge’s final interpretation (Issue 4). Discuss the Judge’s reasoning for concluding that the Board President has “inherent authority” to limit agenda items.

4. Define the “preponderance of the evidence” standard. Using examples from at least two of the four issues raised in the petition, explain how the Petitioner failed to meet this burden of proof.

5. Based on the referenced community documents (CC&Rs and Bylaws), describe the scope of the Ventana Lakes Board of Directors’ power to regulate Common Areas, suspend resident privileges, and enforce rules. How do these documents grant authority that was relevant to the Board’s actions against the Italian American Club?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings, makes findings of fact, and issues decisions based on the evidence and applicable law. In this case, the ALJ was Tammy L. Eigenheer.

A.R.S.

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

Bylaws

A set of rules adopted by an organization, such as an HOA, to govern its internal management and operations. Article IV, Section E of the Bylaws addresses the Board’s powers and duties.

Covenants, Conditions & Restrictions. These are legally binding rules recorded with the property deeds in a planned community, governing property use and the rights and obligations of the homeowners and the HOA.

Common Areas

Property within a planned community owned by the HOA for the common use and enjoyment of all residents, such as the Yacht Club and recreational facilities mentioned in the case.

Executive Session

A closed portion of a meeting of a deliberative body, such as an HOA board, which is not open to the general membership. A.R.S. § 33-1804 specifies the limited circumstances under which such a session can be held.

HOA (Homeowners Association)

An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents. In this case, the Ventana Lakes Property Owners’ Association.

A legal term for a matter that is no longer in controversy or has become irrelevant. The ALJ declared the issues regarding the Italian American Club moot because the one-year penalty had already expired.

Petitioner

The party who files a petition initiating a legal action or administrative proceeding. In this case, Susan L. Alandar.

Preponderance of the Evidence

The standard of proof in most civil cases, which requires the trier of fact (the judge) to be convinced that a contention is more probably true than not. The Petitioner had the burden to meet this standard.

Respondent

The party against whom a petition is filed or an appeal is brought. In this case, the Ventana Lakes Property Owners’ Association.

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20F-H2020046-REL

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The provided text is an Administrative Law Judge Decision concerning a dispute between Susan L. Alandar, the Petitioner, and the Ventana Lakes Property Owners’ Association, the Respondent. The Petitioner filed a Homeowners Association (HOA) Dispute Process Petition alleging four violations of statute and community documents by the HOA, requiring her to pay additional filing fees to pursue all four issues. The judge systematically addressed each of the four allegations, which included improper closed-door interviews for board candidates, discriminatory penalizing and facility denial against an Italian American Club, and the refusal to place all member-requested items on the board agenda. Ultimately, the Administrative Law Judge denied the Petitioner’s petition, finding that she failed to establish the alleged violations by a preponderance of the evidence, and further determined that the facilities denial issue was moot as the one-year prohibition had expired.

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What were the specific allegations and outcomes across the four distinct issues presented?
How did the Administrative Law Judge interpret governing documents regarding Board authority and rules?
What legal standards and statutes primarily governed the resolution of this HOA dispute petition?

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Case Participants

Petitioner Side

  • Susan L. Alandar (petitioner)
    Appeared on her own behalf.

Respondent Side

  • Nicholas Nogami (HOA attorney)
    Carpenter Hazlewood Delgado & Bolen, LLP
    Represented Ventana Lakes Property Owners' Association.

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    OAH
    Administrative Law Judge who signed the decision.
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Decision transmitted to.
  • LDettorre (ADRE staff)
    Arizona Department of Real Estate
    Decision transmitted to.
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Decision transmitted to.
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Decision transmitted to.
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Decision transmitted to.
  • ncano (ADRE staff)
    Arizona Department of Real Estate
    Decision transmitted to.

Other Participants

  • c. serrano (Staff/Clerk)
    Transmitted the decision to the attorney for the Respondent.

Werner A Reis v. Canyon Mesa Townhouse Association

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-H2019026-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2020-07-14
Administrative Law Judge Jenna Clark
Outcome The Administrative Law Judge issued a Final Order denying the Petitioner's claim on rehearing. The ALJ found that the Association did not violate CC&Rs Article III section 1 when its Board painted pickleball lines on one of the two existing tennis courts, as the action was within the Board's authority to manage Common Areas and did not infringe on members' nonexclusive perpetual easement rights.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Werner A Reis Counsel —
Respondent Canyon Mesa Townhouse Association Counsel Edward O’Brien, Esq.

Alleged Violations

CC&Rs Article III, section 1

Outcome Summary

The Administrative Law Judge issued a Final Order denying the Petitioner's claim on rehearing. The ALJ found that the Association did not violate CC&Rs Article III section 1 when its Board painted pickleball lines on one of the two existing tennis courts, as the action was within the Board's authority to manage Common Areas and did not infringe on members' nonexclusive perpetual easement rights.

Why this result: Petitioner failed to meet the burden of proof by a preponderance of the evidence, and the undisputed material facts supported the finding that the Association's actions were authorized by the governing documents (CC&Rs Articles II and VI) and did not deny or impede member access or use of the Common Areas.

Key Issues & Findings

Whether Canyon Mesa Townhouse Association violated community documents CC&Rs Article III, sec. 1.

Petitioner alleged that the Board's decision to paint pickleball lines on one of two tennis courts constituted an infringement or impediment of enjoyment rights for tennis players, thereby violating CC&Rs Article III section 1.

Orders: The ALJ denied the petition (on rehearing), concluding that Petitioner failed to sustain the burden of proof. The Association was authorized to manage and maintain Common Areas, and members' nonexclusive perpetual easement rights were not violated.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2)
  • ARIZ. REV. STAT. §§ 32-2199.01(A)
  • ARIZ. REV. STAT. §§ 32-2199.01(D)
  • ARIZ. REV. STAT. §§ 32-2199.02
  • ARIZ. REV. STAT. § 33-1243
  • ARIZ. REV. STAT. §§ 41-1092 et seq.
  • ARIZ. REV. STAT. § 41-1092.08(H)
  • ARIZ. REV. STAT. § 12-904(A)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • ARIZ. ADMIN. CODE R2-19-119

Analytics Highlights

Topics: HOA Governance, CC&Rs Interpretation, Common Area Use, Easement Rights, Recreational Facilities, Pickleball
Additional Citations:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2)
  • ARIZ. REV. STAT. §§ 32-2199.01(A)
  • ARIZ. REV. STAT. §§ 32-2199.01(D)
  • ARIZ. REV. STAT. §§ 32-2199.02
  • ARIZ. REV. STAT. § 33-1243
  • ARIZ. REV. STAT. §§ 41-1092 et seq.
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • ARIZ. ADMIN. CODE R2-19-119
  • ARIZ. REV. STAT. §§ 41-1092.04
  • ARIZ. REV. STAT. §§ 41-1092.05(D)
  • ARIZ. REV. STAT. §§ 41-1061(A)
  • ARIZ. REV. STAT. § 41-1092.08(H)
  • ARIZ. REV. STAT. § 12-904(A)

Video Overview

Audio Overview

Decision Documents

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

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

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

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Briefing Document: Reis v. Canyon Mesa Townhouse Association

Executive Summary

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

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

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I. Case Overview

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

Case Detail

Information

Case Numbers

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

Petitioner

Werner A. Reis

Respondent

Canyon Mesa Townhouse Association

Adjudicator

Administrative Law Judge (ALJ) Jenna Clark

Core Issue

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

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II. Procedural History

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

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

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

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

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

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

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

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

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

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

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III. Analysis of the Dispute

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

Petitioner’s Position (Werner A. Reis)

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

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

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

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

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

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

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

Respondent’s Position (Canyon Mesa Townhouse Association)

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

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

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

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

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

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IV. Summary of Evidence and Testimony

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

Testimony for the Association (Charles Mitchell & Arland Averell)

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

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

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

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

Testimony of the Petitioner (Werner A. Reis)

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

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

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

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V. Administrative Law Judge’s Findings and Final Order

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

Conclusions of Law

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

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

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

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

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

Final Disposition

IT IS ORDERED that Petitioner’s petition is denied.

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

Study Guide: Reis vs. Canyon Mesa Townhouse Association

Short-Answer Quiz

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

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

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

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

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

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

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

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

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

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

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

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Answer Key

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

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

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

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

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

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

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

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

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

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

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Essay Questions

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

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

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

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

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

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

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

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

ARIZ. REV. STAT.

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

Association

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

Board of Directors (Board)

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

Burden of Proof

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

CC&Rs (Covenants, Conditions, and Restrictions)

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

Common Areas

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

Department

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

Easement of use and enjoyment

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

OAH (Office of Administrative Hearings)

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

Petitioner

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

Preponderance of the evidence

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

Respondent

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

Snowbird

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

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

Introduction: The Battle for the Tennis Court

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

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

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

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

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

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

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

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

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

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

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

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

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

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

4. An “Infringement” Requires an Actual Impediment

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

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

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

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

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

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

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

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

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

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

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

OAH did not receive a closing argument from Petitioner.

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

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Conclusion: The Court of Community Opinion

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

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

Case Participants

Petitioner Side

  • Werner A Reis (petitioner)
    Appeared on his own behalf

Respondent Side

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

Neutral Parties

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

Ronna Biesecker, v. 6100 Fifth Condominium Homeowners Association,

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Case Summary

Case ID 20F-H2020050-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-06-25
Administrative Law Judge Tammy L. Eigenheer
Outcome The Petitioner failed to establish by a preponderance of the evidence that the Respondent violated the CC&Rs or Arizona statutes; therefore, the petition was dismissed.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Ronna Biesecker Counsel —
Respondent 6100 Fifth Condominium Homeowners Association Counsel —

Alleged Violations

A.R.S. § 33-1247 and CC&Rs § 10(c)

Outcome Summary

The Petitioner failed to establish by a preponderance of the evidence that the Respondent violated the CC&Rs or Arizona statutes; therefore, the petition was dismissed.

Why this result: Petitioner failed to meet the burden of proof, as evidence suggested the water leak was caused by the sliding glass door of the unit above, not a flaw in the common elements.

Key Issues & Findings

Failure to maintain all Common Elements (Water Leak Dispute)

Petitioner alleged the Respondent HOA failed to maintain Common Elements, leading to water leaks in her unit. Respondent denied the violation, asserting the leak originated from the upstairs unit’s sliding doors or track assemblies, which are the responsibility of that unit owner.

Orders: Petitioner’s petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1247
  • CC&Rs § 10(c)
  • Article II.E, Section 1 of the Bylaws
  • Article C of the CC&Rs

Analytics Highlights

Topics: condominium, maintenance dispute, common elements, water damage, burden of proof
Additional Citations:

  • A.R.S. § 33-1247
  • CC&Rs § 10(c)
  • A.R.S. § 32-2199.01
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • Powell v. Washburn
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.
  • Vazanno v. Superior Court

Video Overview

Audio Overview

Decision Documents

20F-H2020050-REL Decision – 802352.pdf

Uploaded 2026-04-24T11:26:08 (103.2 KB)

20F-H2020050-REL Decision – 802352.pdf

Uploaded 2026-01-23T17:32:09 (103.2 KB)

Administrative Hearing Brief: Biesecker v. 6100 Fifth Condominium HOA

Executive Summary

This document provides a comprehensive analysis of the Administrative Law Judge Decision in case number 20F-H2020050-REL, wherein Petitioner Ronna Biesecker alleged that the 6100 Fifth Condominium Homeowners Association (HOA) failed to fulfill its maintenance responsibilities. The Administrative Law Judge (ALJ) ultimately dismissed the petition, ruling that the Petitioner did not meet the burden of proof required to substantiate her claim.

The central conflict involved recurring water leaks in Ms. Biesecker’s condominium unit (A113). The Petitioner contended that the leaks originated from cracks in the building’s exterior stucco, which are defined as “Common Elements” and are therefore the HOA’s responsibility to repair under its governing documents and Arizona state law. In contrast, the HOA argued that the source of the water was the sliding door assembly of the upstairs unit, making its maintenance the responsibility of that unit’s owner.

The final decision rested on the weight of evidence presented. Multiple expert inspections, conducted by Olander’s and another inspector retained by the HOA, concluded that the leaks were attributable to the upstairs unit’s sliding doors. This evidence was deemed more convincing than the Petitioner’s own assessment regarding the stucco. The ALJ concluded that Ms. Biesecker failed to prove by a “preponderance of the evidence” that the damage was caused by a flaw in the common elements, leading to the dismissal of her case.

Case Overview

Case Name

Ronna Biesecker, Petitioner, vs. 6100 Fifth Condominium Homeowners Association, Respondent.

Case Number

20F-H2020050-REL

Office of Administrative Hearings (Arizona)

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

Hearing Date

June 5, 2020

Decision Date

June 25, 2020

Petitioner

Ronna Biesecker, owner of unit A113

Respondent

6100 Fifth Condominium Homeowners Association, represented by Robert Eric Struse, Statutory Agent

Core Allegations and Defenses

Petitioner’s Claim (Ronna Biesecker)

• Core Allegation: The Petitioner filed a petition on March 10, 2020, alleging that the Respondent (HOA) violated its Covenants, Conditions, and Restrictions (CC&Rs) § 10(c) and Arizona Revised Statutes (A.R.S.) § 33-1247 by failing to maintain the common elements of the condominium community.

• Specifics of Claim: Ms. Biesecker asserted that persistent water leaks into her unit were caused by cracks in the exterior stucco surrounding the sliding doors.

• Basis of Responsibility: She argued that because the exterior stucco is a “common element,” the HOA was legally responsible for its repair and any subsequent damage to her unit.

• Requested Action: The Petitioner had previously requested that the HOA repair the exterior leaks and had attempted to have the HOA mediate the issue with the owner of the upstairs unit.

Respondent’s Position (6100 Fifth Condominium HOA)

• Core Defense: The HOA denied any violation of its CC&Rs or state statutes.

• Specifics of Defense: The HOA maintained that the source of the water leaks was not a common element. Instead, it attributed the leaks to the sliding doors or track assemblies of the condominium unit located directly above the Petitioner’s.

• Basis of Responsibility: According to the HOA’s governing documents and state law, the maintenance of elements belonging to an individual unit (such as a sliding door) is the responsibility of that unit’s owner, not the association.

• Actions Taken: The HOA declined to “arbitrate, mediate, or serve as a third party” in the dispute between the Petitioner and the owner of the upstairs unit. It also conducted an inspection which supported its position.

Evidentiary Timeline and Key Findings

The decision was based on a sequence of events and expert assessments presented as evidence.

• January 5, 2019: Petitioner experiences the first water leak in her unit (A113) near the sliding glass door.

• January 18, 2019: An employee from Olander’s, a door installation company contacted by the Petitioner, inspects the unit. The employee’s opinion was that “the leak was coming from the unit above Petitioner and that the sliding door above Petitioner’s unit had large gaps under the threshold which allowed water to get in.”

• February 8, 2019: Nathan’s Handyman Service repairs plaster damage in the Petitioner’s unit and notes in a report that the damage was “the result of an old leak coming from above Petitioner’s unit.” The report also identified rusted wire mesh, indicating previous repairs to the area.

• March/April 2019: The HOA’s Property Manager formally refuses the Petitioner’s request to mediate the dispute with the owner of the upstairs unit.

• May 1, 2019: Petitioner emails the HOA, proposing that new cracks in the stucco pop-out at the roof level could be the source of the leak.

• October 28, 2019: A “Roof Opinion Report” from Roof Savers Locke Roofing states that no roof repairs are needed but notes the presence of “server [sic] cracking at the stucco.” The report recommends contacting a stucco or window contractor.

• November 27, 2019: Another leak occurs in the same area of the Petitioner’s unit.

• December 9, 2019: The HOA’s Property Manager and an inspector assess the water damage in the Petitioner’s unit.

• December 23, 2019: An invoice from the inspector states: “After inspecting the shared roof and building interior/exterior it appears the water damage to the lower unit is coming from the upstairs unit sliding doors or their track assemblies.”

• June 5, 2020 (Hearing Testimony):

◦ The Petitioner stated it was “obvious” the leak originated from the stucco crack.

◦ The HOA’s Statutory Agent, Robert Eric Struse, testified that the December 2019 inspection included the interior of the upstairs unit. He argued that if the stucco crack were the cause, the upstairs unit would also show internal water damage, which it did not.

Governing Documents and Statutes

The case revolved around the interpretation of responsibility as defined by the following legal framework:

• Bylaws (Article II.E, Section 1) & CC&Rs (Article C): These documents obligate the HOA to collect assessments to meet common expenses, including the “maintenance, upkeep, care, repair, [and] reconstruction… for the common elements.”

• A.R.S. § 33-1247: This Arizona statute codifies the division of maintenance responsibility. It states that “the association is responsible for maintenance, repair and replacement of the common elements and each unit owner is responsible for maintenance, repair and replacement of the unit.”

Conclusions of Law and Final Order

The Administrative Law Judge’s decision was based on the application of the legal standard of proof to the evidence presented.

• Burden of Proof: The ALJ established that the Petitioner bore the burden of proof to demonstrate, by a “preponderance of the evidence,” that the HOA violated the applicable statutes or CC&Rs. A preponderance of the evidence is defined as proof that convinces the trier of fact that a contention is “more probably true than not.”

• Central Legal Finding: The judge determined that if the water damage was caused by a flaw in the common elements, the HOA would be responsible. However, the Petitioner failed to meet her burden of proof in establishing this causal link.

• Reasoning for Decision: The ruling states: “Petitioner failed to establish by a preponderance of the evidence that the water leak and damage was attributable to the condition of the common elements. Rather, the opinions of the companies that inspected the area concluded that the leak was coming from the sliding glass door of the unit above Petitioner’s.” The collective weight of the expert opinions from Olander’s and the HOA’s inspector outweighed the Petitioner’s personal theory about the stucco cracks.

• Final Order: Based on these findings, the judge issued a final order: “IT IS ORDERED that Petitioner’s petition is dismissed.” This order is binding unless a rehearing is granted.

Study Guide: Biesecker v. 6100 Fifth Condominium Homeowners Association

This guide provides a comprehensive review of the Administrative Law Judge Decision in case No. 20F-H2020050-REL, concerning a dispute between condominium owner Ronna Biesecker and the 6100 Fifth Condominium Homeowners Association. The case centers on determining responsibility for water leaks affecting the Petitioner’s unit. Use the following sections to test and deepen your understanding of the facts, legal arguments, and final outcome.

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Short-Answer Quiz

Answer the following questions in 2-3 complete sentences, using only information provided in the case document.

1. Who were the Petitioner and Respondent in this case, and what was their relationship?

2. What was the central claim made by the Petitioner against the Respondent?

3. According to the Respondent, what was the source of the water leaks and who was responsible for the repair?

4. What legal standard, or “burden of proof,” did the Petitioner need to meet to win her case?

5. What two key community documents, in addition to Arizona state law, define the Respondent’s responsibility for maintaining “common elements”?

6. Summarize the findings of the two inspection reports mentioned in the evidence (from Olander’s and the December 23, 2019 invoice).

7. What was the Petitioner’s theory about the source of the leak, as stated during the hearing?

8. How did Robert Eric Struse, the Respondent’s Statutory Agent, counter the Petitioner’s theory about the stucco crack?

9. What was the final ruling, or “Order,” issued by the Administrative Law Judge?

10. Why did the Administrative Law Judge conclude that the Petitioner failed to meet her burden of proof?

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Answer Key

1. The Petitioner was Ronna Biesecker, who owned condominium unit A113. The Respondent was the 6100 Fifth Condominium Homeowners Association, of which the Petitioner was a member.

2. The Petitioner filed a petition alleging the Respondent violated its CC&Rs (§ 10(c)) and Arizona statute A.R.S. § 33-1247 by failing to maintain the common elements, which she believed were the source of water leaks in her unit.

3. The Respondent argued that the source of the water leaks was the upstairs unit’s sliding doors or track assemblies. Therefore, the responsibility for maintenance and repair belonged to the owner of that specific unit, not the Homeowners Association.

4. The Petitioner had the burden of proof to establish her claim by a “preponderance of the evidence.” This legal standard requires providing proof that convinces the trier of fact that the contention is more probably true than not.

5. The Respondent’s responsibility is defined in Article II.E, Section 1 of the community Bylaws and Section C of the CC&Rs. Both documents state the association is responsible for the maintenance and repair of common elements using assessments paid by owners.

6. An employee from Olander’s opined that the leak was coming from the unit above Petitioner’s, specifically from large gaps under the sliding door’s threshold. Similarly, the inspector’s invoice from December 23, 2019, concluded that the water damage appeared to be coming from the upstairs unit’s sliding doors or their track assemblies.

7. During the hearing, the Petitioner stated that it was “obvious” the leak was coming from a crack in the stucco in the pop-out surrounding the sliding doors at the roof level. She posited this was a common element and therefore the Respondent’s responsibility to repair.

8. Mr. Struse testified that if water were leaking through the crack in the stucco, the upstairs unit would have also sustained internal damage. He confirmed that an inspection of the inside of the upstairs unit showed this was not happening, undermining the Petitioner’s theory.

9. The Administrative Law Judge ordered that the Petitioner’s petition be dismissed.

10. The judge concluded the Petitioner failed to meet her burden of proof because the credible evidence, particularly the opinions of the companies that inspected the area, concluded the leak was coming from the sliding glass door of the unit above. The Petitioner did not establish by a preponderance of the evidence that the leak was attributable to the condition of the common elements.

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Essay Questions

The following questions are designed for longer-form analysis. Formulate a detailed response for each, citing specific evidence and legal principles from the case document to support your arguments.

1. Analyze the distinction between “common elements” and an individual “unit” as defined by A.R.S. § 33-1247 and the community’s governing documents. How was this distinction central to the judge’s final decision in this case?

2. Discuss the role and weight of evidence presented during the hearing. Compare the Petitioner’s testimony and personal observations with the professional opinions from Olander’s and the inspector. Why did the judge find the professional opinions more convincing in determining the outcome?

3. Explain the legal standard of “preponderance of the evidence” as defined in the case document’s Conclusions of Law. Using specific examples from the hearing evidence, detail why Ronna Biesecker failed to meet this standard.

4. Based on the referenced community documents, what are the primary maintenance responsibilities of the 6100 Fifth Condominium Homeowners Association? How did the Respondent’s stated refusal to “arbitrate, mediate, or serve as a third party” in the dispute between unit owners align with or diverge from these responsibilities?

5. Imagine you are advising the Petitioner before the hearing. What additional evidence or types of expert testimony could she have presented to potentially change the outcome of the case and successfully prove the leak was the Respondent’s responsibility?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official (Tammy L. Eigenheer) from the Office of Administrative Hearings who presides over the evidentiary hearing and issues a legally binding decision and order.

A.R.S. (Arizona Revised Statutes)

The codified laws of the state of Arizona. The statutes referenced (e.g., § 33-1247) govern the responsibilities of condominium associations and the legal procedures for disputes.

Bylaws

A set of rules governing the internal operations of an organization. In this case, Article II.E, Section 1 of the Bylaws obligates the Association to maintain the common elements using assessments paid by owners.

CC&Rs (Covenants, Conditions, and Restrictions)

A legal document that outlines the rights and obligations of property owners and the homeowners association. Section C of the CC&Rs required the Association to maintain, repair, and care for the common elements.

Common Elements

Areas of the condominium property for which the homeowners association is responsible for maintenance, upkeep, care, and repair, as distinguished from an individual owner’s unit.

Petitioner

The party who initiates a legal action by filing a petition. In this case, Ronna Biesecker, the condominium owner who alleged the homeowners association violated its duties.

Preponderance of the Evidence

The standard of proof required in this hearing. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and is established by evidence with the most convincing force.

Respondent

The party against whom a petition is filed. In this case, the 6100 Fifth Condominium Homeowners Association.

Statutory Agent

An individual designated to receive legal notices and appear on behalf of a business entity. In this case, Robert Eric Struse appeared and testified on behalf of the Respondent association.

Your HOA Isn’t Your Landlord: 3 Surprising Lessons from a Condo Water Leak Lawsuit

Introduction: The Dreaded Drip

It’s a scenario that strikes fear into the heart of any condo owner: the tell-tale stain on the ceiling, the damp spot on the wall, the dreaded drip of a mysterious water leak. The immediate anxiety is followed by a pressing question: “Who is responsible for fixing this, and who pays for the damage?” Many assume the answer is straightforward, but as a recent lawsuit involving the 6100 Fifth Condominium Homeowners Association demonstrates, the lines of responsibility in a condominium community are often more complicated than they appear.

This article explores a real-life court case between a condo owner and her HOA to uncover three surprising truths about condo ownership, liability, and the true role of your HOA.

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1. It’s Not Where the Damage Is, It’s Where the Leak Starts

In the case, condo owner Ronna Biesecker experienced persistent water leaks in her unit (A113) around her sliding glass door. On May 1, 2019, after observing new cracks in the exterior stucco, she “posited that the cracks could be a source of the leak.” This became the foundation of her claim: if the water was coming from the stucco—a “Common Element”—then the HOA was responsible for the repairs.

However, a year-long trail of evidence pointed in a different direction. As early as January 18, 2019, an employee from the door installation company opined that the leak was “coming from the unit above.” On February 8, 2019, a handyman repairing plaster damage stated the issue was from “an old leak coming from above.” Even a roofing report from October 28, 2019, which noted the stucco cracking, stopped short of blaming it, instead recommending the owner contact a “stucco contractor or Window Company.”

This evidence culminated in a formal inspector’s report on December 23, 2019, which concluded the water was “coming from the upstairs unit sliding doors or their track assemblies.” Because the source of the leak originated from a part of the neighbor’s private unit, the legal responsibility shifted. Based on Arizona statute A.R.S. § 33-1247, the HOA was not liable. The key lesson here is unambiguous: legal responsibility follows the source of the problem, not the location of the resulting damage.

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2. “More Probably True Than Not”: The Burden of Proof Is on You

In any lawsuit, the person bringing the complaint—in this case, the homeowner—carries the “burden of proof.” This means she had to provide enough evidence to meet a specific legal standard, which the court defined as “preponderance of the evidence.” The legal decision offers a clear definition of this standard:

“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.”

In simple terms, Ms. Biesecker had to convince the judge that her theory—that the leak came from the common element stucco—was more likely to be true than the HOA’s theory that it came from the neighbor’s door.

Her claim was undone by simple logic. The HOA’s Statutory Agent, Mr. Struse, provided devastating testimony, arguing that “if water was leaking through the crack in the stucco, the upstairs unit would have also had internal damage, which was not happening.” This single point made the petitioner’s theory far less probable. The judge ultimately ruled that the petitioner “failed to establish by a preponderance of the evidence that Respondent violated the provisions of the CC&Rs or Arizona statutes,” proving that an owner’s belief isn’t enough without convincing evidence.

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3. Your HOA Won’t (and Often Can’t) Settle Neighbor-to-Neighbor Fights

Before filing the lawsuit, the petitioner attempted to resolve the issue directly. On or about February 11, 2019, she contacted the owner of the unit above hers to request repairs but “did not receive a response.” Frustrated, she turned to the HOA for help. In March or April 2019, she asked the Property Manager to “help mediate the issue” between her and her neighbor.

The HOA’s response was direct and legally sound: the Property Manager “responded that it would not arbitrate, mediate, or serve as a third party to the dispute.” This is a crucial and often misunderstood takeaway for condo owners. While an HOA’s role is to manage common elements and enforce community-wide rules, it is not legally obligated—and often not permitted—to intervene in private disputes between two homeowners over damage originating from private property. Your HOA is not a landlord or a mediator for personal conflicts; it’s an administrative body with a specific and legally defined scope of authority.

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Conclusion: Know Your Lines

The lessons from this case are clear: condo living involves a complex web of overlapping responsibilities. The line between what constitutes a common element, your private property, and your neighbor’s property is legally significant and determines who is ultimately responsible when things go wrong. Understanding these distinctions isn’t just helpful—it’s essential for protecting your investment and resolving issues effectively.

Before the next problem arises, have you read your community documents to know exactly where your responsibility ends and your neighbor’s begins?

Case Participants

Petitioner Side

  • Ronna Biesecker (petitioner)
    Appeared and testified on her own behalf.

Respondent Side

  • Robert Eric Struse (statutory agent)
    6100 Fifth Condominium Homeowners Association
    Appeared and presented testimony on behalf of Respondent.

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate

Douglas J Karolak vs. VVE – Casa Grande Homeowners Association

Posted on by

Case Summary

Case ID 20F-H2020041-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-05-21
Administrative Law Judge Tammy L. Eigenheer
Outcome Petitioner was deemed the prevailing party after establishing that the Respondent HOA violated A.R.S. § 33-1817(A)(1) and the community documents by improperly recording Amended CC&Rs without proper owner consent. The Respondent was ordered to refund the $500.00 filing fee. However, the ALJ could not grant the requested relief (rescission of the Amended CC&Rs) due to a lack of statutory authority.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Douglas J. Karolak Counsel —
Respondent VVE – Casa Grande Homeowners Association Counsel David Fitzgibbons

Alleged Violations

A.R.S. § 33-1817(A)(1); CC&Rs Part 10, Section 10.4

Outcome Summary

Petitioner was deemed the prevailing party after establishing that the Respondent HOA violated A.R.S. § 33-1817(A)(1) and the community documents by improperly recording Amended CC&Rs without proper owner consent. The Respondent was ordered to refund the $500.00 filing fee. However, the ALJ could not grant the requested relief (rescission of the Amended CC&Rs) due to a lack of statutory authority.

Key Issues & Findings

Violation regarding the validity of Amended CC&Rs due to lack of required owner approval.

The Petitioner alleged that the Amended CC&Rs recorded by the Board were invalid because they were not approved by two-thirds (2/3) of the lot owners as required by the CC&Rs and statute. The ALJ agreed, finding the Board acted improperly and violated the documents and statute.

Orders: Respondent was ordered to pay Petitioner the filing fee of $500.00. No civil penalty was assessed. The ALJ determined she lacked the statutory authority to order the rescission of the Amended CC&Rs requested by the Petitioner.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1817(A)(1)
  • CC&Rs Part 10, Section 10.4

Analytics Highlights

Topics: HOA Dispute, CC&R Amendment, Board Authority, Filing Fee Refund, Partial Win
Additional Citations:

  • 20F-H2020041-REL
  • A.R.S. § 33-1817
  • A.R.S. § 33-1817(A)(1)
  • A.R.S. § 32-2199
  • A.R.S. § 32-2199.02
  • A.R.S. § 41-1092.07(G)(2)
  • CC&Rs Part 10, Section 10.4

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Video Overview

Audio Overview

Decision Documents

20F-H2020041-REL Decision – 792824.pdf

Uploaded 2026-05-01T09:47:41 (102.9 KB)

20F-H2020041-REL Decision – 792824.pdf

Uploaded 2026-01-23T17:31:22 (102.9 KB)

Briefing Document: Karolak vs. VVE – Casa Grande Homeowners Association

Executive Summary

This briefing analyzes the Administrative Law Judge (ALJ) Decision in the case of Douglas J. Karolak vs. VVE – Casa Grande Homeowners Association (No. 20F-H2020041-REL). The central issue was whether the HOA Board had the authority to unilaterally amend and record changes to the community’s Covenants, Conditions, and Restrictions (CC&Rs) without the required homeowner vote.

The petitioner, Douglas J. Karolak, successfully argued that the HOA violated its own governing documents and Arizona state law by filing “Amended CC&Rs” on October 5, 2018, without securing the approval of two-thirds of the lot owners. The HOA contended its actions were a valid exercise of its authority to create “Association Rules.”

ALJ Tammy L. Eigenheer ruled decisively in favor of the petitioner. The decision established a clear legal distinction between the Board’s power to adopt rules and the separate, more stringent process required to formally amend the CC&Rs. The judge found the Board acted improperly, declaring Karolak the prevailing party and ordering the HOA to reimburse his $500 filing fee. Notably, while the judge found the amended document was improperly recorded, she concluded she lacked the statutory authority to order its rescission, which was the remedy the petitioner had requested.

Case Overview

Case Name

Douglas J. Karolak vs. VVE – Casa Grande Homeowners Association

Case Number

20F-H2020041-REL

Arizona Office of Administrative Hearings

Administrative Law Judge

Tammy L. Eigenheer

Hearing Date

May 1, 2020

Decision Date

May 21, 2020

The Central Dispute

The core of the dispute revolved around the legitimacy of a document titled “Restated Declaration of Covenants, Conditions and Restrictions for Val Vista Estates” (Amended CC&Rs), which the HOA Board recorded with the Pinal County Recorder on October 5, 2018.

• Petitioner’s Position (Douglas J. Karolak): The Amended CC&Rs are invalid because they were not approved by “owners of at least two-thirds (2/3) of the Lots,” a requirement explicitly stated in Section 10.4 of the original CC&Rs and supported by Arizona statute A.R.S. § 33-1817(A)(1). Karolak argued that the Board’s action of recording an amendment is fundamentally different from its power to adopt internal “Association Rules.”

• Respondent’s Position (VVE – Casa Grande HOA): The Board argued that its actions were a valid exercise of the authority granted to it under the CC&Rs. It claimed that because the only changes were to Part 7 (Use Restrictions), they fell under the Board’s power to “adopt, amend, or repeal such rules and regulations as it deems reasonable and appropriate” (Section 3.4) and to “modify or waive the foregoing restrictions… by reasonable rules and regulations” (Section 7.43). The Respondent’s counsel did, however, concede that “perhaps the Amended CC&Rs should not have been recorded.”

Factual Background and Chronology

• The VVE – Casa Grande Homeowners Association is a 56-lot community in Casa Grande, Arizona, with 19 lots remaining vacant at the time of the hearing.

• April 30, 1999: The original “Restated Declaration of Covenants, Conditions and Restrictions for VVE” (CC&Rs) was recorded.

• 2014 and 2015: The HOA Board made unsuccessful attempts to amend the CC&Rs through membership votes.

• 2018: Following the failed votes, the Board determined it would make changes to the “rules section” of the CC&Rs under the authority it believed was granted by Section 3.4.

• October 5, 2018: The Board recorded the Amended CC&Rs with the Pinal County Recorder. The HOA acknowledged that these amendments had not been approved by the required two-thirds of lot owners.

Legal Analysis and Key Provisions

The decision rested on the interpretation of specific sections of the community’s CC&Rs and Arizona state law. The judge concluded that the document’s structure clearly separates the process of rulemaking from the process of formal amendment.

Provision

Source

Summary of Stipulation

Amendment Process

CC&Rs Section 10.4

Requires an instrument “executed by the Owners of at least two-thirds (2/3) of the Lots” and recorded to become effective.

Rulemaking Authority

CC&Rs Section 3.4

Empowers the Board to adopt, amend, or repeal “Association Rules” governing the use of the property. States rules have the “same force and effect as if they were set forth in” the CC&Rs.

Statutory Requirement

A.R.S. § 33-1817(A)(1)

Provides that a declaration may be amended by the association via an affirmative vote or written consent of the number of owners specified in the declaration.

The judge’s rationale emphasized that the distinct sections for rulemaking (3.4) and amendments (10.4) demonstrate that the original drafters did not intend for the Board to have the power to unilaterally amend the CC&Rs. The judge stated, “The fact that the two topics are covered as separate topics in the CC&Rs leads to the conclusion that the original drafters of the CC&Rs did not contemplate that the Board had the authority to, on its own, amend the CC&Rs.”

The Court’s Decision and Final Order

The Administrative Law Judge ruled that the petitioner, Douglas J. Karolak, had successfully proven by a preponderance of the evidence that the respondent HOA had acted improperly.

Key Findings:

• The HOA Board did not have the authority to amend the CC&Rs without the approval of two-thirds of the lot owners.

• The Board’s action of recording the Amended CC&Rs on October 5, 2018, was a violation of the community’s governing documents (Section 10.4) and Arizona state law (A.R.S. § 33-1817(A)(1)).

• The Board’s ability to create “Association Rules” is a separate and distinct process from the formal procedure required to amend the Declaration.

Final Order:

• The petitioner, Douglas J. Karolak, was deemed the prevailing party.

• The respondent HOA was ordered to pay the petitioner his $500.00 filing fee within thirty days of the order.

• No civil penalty was found to be appropriate in the matter.

• Critically, the judge determined that under the applicable statute (A.R.S. § 32-2199.02), the Administrative Law Judge does not have the authority to order the Amended CC&Rs rescinded, despite this being the remedy requested by the petitioner.

The order is binding on both parties unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the decision.

Study Guide: Karolak v. VVE – Casa Grande Homeowners Association

This guide is designed to review the key facts, legal arguments, and outcomes of the Administrative Law Judge Decision in the case of Douglas J. Karolak vs. VVE – Casa Grande Homeowners Association (No. 20F-H2020041-REL).

Short-Answer Quiz

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

1. Who were the petitioner and the respondent in this case, and what was the petitioner’s core allegation?

2. What specific statute and section of the community documents did the petitioner claim the respondent violated?

3. According to Section 10.4 of the original CC&Rs, what was the required procedure for amending the Declaration?

4. Under what authority did the VVE – Casa Grande HOA Board claim it could make changes to the community documents without a membership vote?

5. What key event occurred on or about October 5, 2018, that became the central point of the dispute?

6. What was the respondent’s primary argument for why their actions were valid?

7. What is the “preponderance of the evidence,” and which party bears the burden of proof to establish a violation?

8. Why did the Administrative Law Judge conclude that the Board’s authority to create “Association Rules” was a separate process from amending the CC&Rs?

9. What remedy did the petitioner request, and why was it not granted by the Administrative Law Judge?

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

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Answer Key

1. The petitioner was Douglas J. Karolak, a homeowner. The respondent was the VVE – Casa Grande Homeowners Association. Karolak’s core allegation was that the HOA had improperly amended the community’s governing documents.

2. The petitioner alleged a violation of Arizona Revised Statute (A.R.S.) § 33-1817(A)(1). He also claimed a violation of Part 10, Section 10.4 of the community’s Covenants, Conditions, and Restrictions (CC&Rs).

3. Section 10.4 of the CC&Rs stipulated that the Declaration could be amended by an instrument executed by the owners of at least two-thirds (2/3) of the lots. The amendment would not be effective until that instrument was officially recorded.

4. The HOA Board claimed it had the authority to make the changes under Section 3.4 of the CC&Rs. This section empowered the Board to adopt, amend, or repeal “Association Rules” as it deemed reasonable and appropriate.

5. On or about October 5, 2018, the Board recorded a document titled “Restated Declaration of Covenants, Conditions and Restrictions for Val Vista Estates” (Amended CC&Rs) with the Pinal County Recorder. This was done without the required two-thirds vote from the lot owners.

6. The respondent argued that because the only changes made were to Part 7 (Use Restrictions), which fell under the type of rules the Board was authorized to adopt, the Amended CC&Rs were a valid exercise of the Board’s authority. Their counsel did acknowledge, however, that perhaps the document should not have been recorded.

7. A “preponderance of the evidence” is proof that convinces the trier of fact that a contention is more probably true than not. The petitioner bears the burden of proof to establish that the respondent committed the alleged violations by this standard.

8. The Judge concluded they were separate processes because the CC&Rs cover the topics in different sections. This separation led the Judge to believe the original drafters did not intend for the Board to have the authority to amend the CC&Rs on its own.

9. The petitioner requested that the improperly recorded Amended CC&Rs be rescinded. This remedy was not granted because the applicable statute, A.R.S. § 32-2199.02, does not give the Administrative Law Judge the specific authority to order a document rescinded.

10. The final order deemed the petitioner the prevailing party. It further ordered the respondent to repay the petitioner his $500.00 filing fee within thirty days, but found that no civil penalty was appropriate.

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Essay Questions

Instructions: The following questions are designed to promote deeper analysis of the case. Formulate a comprehensive response to each, using only the information presented in the legal decision.

1. Analyze the distinction made by the Administrative Law Judge between the Board’s authority to create “Association Rules” under Section 3.4 and the process for amending the Declaration under Section 10.4. Why was this distinction critical to the case’s outcome?

2. Discuss the legal standard of “preponderance of the evidence” as defined in the decision. How did the petitioner successfully meet this burden of proof to establish the respondent’s violation, and what specific facts supported this conclusion?

3. Examine the respondent’s (HOA’s) argument regarding its authority to amend the CC&Rs. What were the fundamental flaws in this argument, and how did their counsel’s acknowledgment about the recording of the Amended CC&Rs potentially weaken their position?

4. Explain the legal framework governing this dispute, citing the specific Arizona Revised Statutes (A.R.S.) mentioned in the decision. Detail the roles of the Arizona Department of Real Estate, the Office of Administrative Hearings, and the Administrative Law Judge in resolving this type of HOA conflict.

5. Evaluate the final Order of the Administrative Law Judge. While the petitioner was deemed the prevailing party, why was their requested remedy (rescission of the Amended CC&Rs) denied? What does this reveal about the specific limits of the Administrative Law Judge’s authority in such cases under A.R.S. § 32-2199.02?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over administrative hearings. In this case, Tammy L. Eigenheer of the Office of Administrative Hearings made the findings of fact, conclusions of law, and issued the final order.

A.R.S. § 33-1817(A)(1)

The specific Arizona Revised Statute cited by the petitioner. It states that a declaration may be amended by the association with an affirmative vote or written consent of the number of owners specified in the declaration.

Amended CC&Rs

The document titled “Restated Declaration of Covenants, Conditions and Restrictions for Val Vista Estates,” which the HOA Board recorded on October 5, 2018, without the required two-thirds owner approval.

Association Rules

Rules and regulations that the HOA Board is empowered to adopt, amend, or repeal under Section 3.4 of the CC&Rs to govern the use of Common Areas and other parts of the Project. The Board argued their changes fell under this authority.

Burden of Proof

The obligation to prove one’s assertion. In this case, the petitioner bore the burden of proof to establish the respondent’s violations by a preponderance of the evidence.

An acronym for Covenants, Conditions, and Restrictions. These are the governing legal documents for a planned community. The original “Restated Declaration of Covenants, Conditions and Restrictions for VVE” was recorded on April 30, 1999.

Department

Refers to the Arizona Department of Real Estate, the agency with which the petitioner filed his Homeowners Association (HOA) Dispute Process Petition.

An acronym for Homeowners Association. In this case, the VVE – Casa Grande Homeowners Association, an association of 56 lot owners in Casa Grande, Arizona.

Office of Administrative Hearings

The office responsible for conducting hearings for disputes filed with state agencies like the Department of Real Estate.

Petitioner

The party who initiates a legal action or petition. In this case, homeowner Douglas J. Karolak.

Preponderance of the Evidence

The evidentiary standard required to win the case, defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”

Respondent

The party against whom a petition is filed. In this case, the VVE – Casa Grande Homeowners Association.

Your HOA Just Changed the Rules? Why This Homeowner’s $500 Victory is a Warning to Everyone

For millions of Americans, living in a planned community means living under the authority of a Homeowners Association (HOA). While intended to protect property values, these relationships can often feel one-sided, with boards issuing mandates and homeowners feeling powerless to push back. It’s a common frustration, but it’s rare to see a single homeowner challenge their board and force a legal reckoning.

A recent case from Arizona, Douglas J. Karolak versus the VVE – Casa Grande Homeowners Association, provides a critical case study in board overreach and the surprising limits of legal victory. Karolak alleged his HOA board violated its own governing documents and state law by improperly changing the community’s core rules.

He took his case to an administrative law judge and, in a significant ruling, he won. But the outcome of this seemingly straightforward dispute was far from simple. The final decision reveals a shocking twist that holds critical lessons for every homeowner about the difference between being right on paper and getting the remedy you actually want.

There’s a Huge Difference Between a ‘Rule Change’ and a ‘Declaration Amendment’

The first lesson from this case is a critical one for every homeowner: understand the constitutional hierarchy of your community’s documents. The core of the dispute was the HOA Board’s attempt to amend its foundational document, the CC&Rs (Covenants, Conditions, and Restrictions), without getting the required approval from the homeowners.

Here are the key facts of the case:

• The Original Rule: The community’s CC&Rs explicitly stated in Section 10.4 that any amendment required a vote and execution by “at least two-thirds (2/3) of the Lots.” This is the highest level of authority in a planned community, akin to a constitution.

• The Failed Attempts: The Board had tried to get this two-thirds vote in both 2014 and 2015, but was unsuccessful.

• The Workaround: In 2018, the Board decided to bypass the homeowners. It used a separate power granted in Section 3.4 of the CC&Rs—the authority to create day-to-day “Association Rules”—to make what it called changes to the “‘rules section’ of the CC&Rs, specifically targeting the Use Restrictions in Part 7.”

The judge’s conclusion was crystal clear: The CC&Rs were drafted to treat the power to create “rules” and the power to “amend” the declaration as two entirely separate processes. This separation acts as a crucial check on the board’s power, preventing a small group from unilaterally changing the fundamental property rights of all owners. As the judge noted, “the original drafters of the CC&Rs did not contemplate that the Board had the authority to, on its own, amend the CC&Rs.”

Recording a Document Doesn’t Magically Make It Valid

To make their changes appear official, the HOA Board took a significant step. On October 5, 2018, they filed a document titled “Restated Declaration of Covenants, Conditions and Restrictions for Val Vista Estates (Amended CC&Rs)” with the Pinal County Recorder.

For the average homeowner, a formally recorded document filed with the county looks final, official, and legally binding. It’s an intimidating piece of paper that suggests any challenge would be futile.

However, the judge’s ruling highlights a critical legal truth: procedural legitimacy is paramount. An official-looking document, even one filed with the county, is invalid if the legal process required to create it was ignored. The judge found that because the Board did not follow the correct internal procedure—securing the two-thirds vote from homeowners—the very act of recording the document was improper. Even the HOA’s own lawyer seemed to concede this point during the hearing, acknowledging that “perhaps the Amended CC&Rs should not have been recorded.”

The Winner’s Paradox: You Can Be Right and Still Not Get Your Desired Fix

The final order from the Administrative Law Judge was unambiguous: Douglas Karolak, the petitioner, was officially deemed the “prevailing party.” The judge concluded that the HOA had acted in violation of its own community documents and Arizona state law. This was a clear-cut victory for the homeowner.

But here is the shocking twist. Karolak’s requested remedy was for the illegally filed “Amended CC&Rs” to be rescinded—in other words, to have them officially nullified and removed. This seems like the logical and necessary fix to the problem.

The judge, however, was bound by the limits of her authority. The final decision states plainly: “The Administrative Law Judge does not have the authority under the applicable statute to order the Amended CC&Rs rescinded.” This highlights a critical jurisdictional gap. The Administrative Law Judge’s role in this venue is to determine if a violation occurred and assign limited penalties, not to perform the function of a higher court, which might have the power to void a recorded document.

So, what was the actual remedy for this clear violation? The judge ordered the HOA to repay Karolak his $500 filing fee. No other civil penalty was issued. The homeowner won the argument but did not get the one thing he asked for to correct the board’s improper action.

A Victory on Paper, A Question in Practice

The case of Douglas J. Karolak is a powerful real-world lesson. It proves that a single homeowner, armed with a thorough understanding of their community’s governing documents, can successfully challenge an overreaching HOA board and win. It confirms that procedural shortcuts, even when filed and recorded, do not make an illegal action legal.

But it also reveals the frustrating limitations that can exist within the legal process. The homeowner was proven right, but the improperly filed document remains on the books, unable to be rescinded in this specific venue. It raises a crucial question for homeowners everywhere: How do you ensure your victory has real teeth?

Case Participants

Petitioner Side

  • Douglas J. Karolak (petitioner)

Respondent Side

  • David A. Fitzgibbons III (HOA attorney)
    Fitzgibbons Law Offices PLC
    Represented VVE – Casa Grande Homeowners Association
  • CV Mathai (witness)
    VVE – Casa Grande Homeowners Association
  • John Kelsey (witness)
    VVE – Casa Grande Homeowners Association
  • Kristi Kelsey (witness)
    VVE – Casa Grande Homeowners Association
  • William Findley (witness)
    VVE – Casa Grande Homeowners Association
  • Kay Niemi (witness)
    VVE – Casa Grande Homeowners Association
  • Mark Korte (witness)
    VVE – Casa Grande Homeowners Association
  • Felicia Del Sol (property manager rep)
    Norris Management

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Michael J Stoltenberg v. Rancho Del Oro Homeowners Association

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Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.

Case Summary

Case ID 20F-H2019005-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2020-05-05
Administrative Law Judge Tammy L. Eigenheer
Outcome The Administrative Law Judge dismissed the petition because the controversy was not ripe. The Petitioner admitted that he had denied the HOA permission to enter his property to perform the maintenance he was suing them for not performing.
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

Governing Documents

Outcome Summary

The Administrative Law Judge dismissed the petition because the controversy was not ripe. The Petitioner admitted that he had denied the HOA permission to enter his property to perform the maintenance he was suing them for not performing.

Why this result: The matter was not ripe for determination because the Petitioner had denied the Respondent access to the property.

Key Issues & Findings

Failure to provide landscaping maintenance

Petitioner alleged Respondent failed to maintain landscaping. Petitioner admitted he had notified Respondent it was not allowed to enter his property until January 2020.

Orders: Petition dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Decision Documents

20F-H2019005-REL-RHG Decision – 787446.pdf

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20F-H2019005-REL-RHG Decision – ../20F-H2019005-REL/752939.pdf

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**Case Summary: Stoltenberg v. Rancho Del Oro Homeowners Association Case No. 20F-H2019005-REL-RHG Date of Rehearing Decision:** May 5, 2020

Overview This summary details the proceedings of an administrative rehearing before the Arizona Department of Real Estate. The matter involves a dispute regarding landscaping maintenance obligations. It is crucial to distinguish between the original decision (dismissed for lack of ripeness) and the subsequent rehearing (which affirmed the dismissal).

Procedural History: The Original Decision In the initial proceeding (Case No. 20F-H2019005-REL), Petitioner Michael J. Stoltenberg alleged that the Respondent, Rancho Del Oro Homeowners Association (HOA), failed to comply with a prior ruling requiring it to provide landscaping maintenance.

During the original hearing on October 30, 2019, the Petitioner admitted to the following facts:

  • In 2013, he notified the HOA it was not allowed to enter his property.
  • In April 2019, he notified the HOA that he expected maintenance to resume in January 2020.
  • At the time of the 2019 hearing, the HOA still did not have permission to enter the property.

On November 14, 2019, Administrative Law Judge (ALJ) Tammy L. Eigenheer dismissed the petition. The ALJ ruled that because the HOA was barred from the property at the time of filing, the allegation that the HOA was violating governing documents was "not ripe for determination".

The Rehearing: Case No. 20F-H2019005-REL-RHG The Petitioner requested a rehearing, arguing he was being "proactive" in seeking a resolution before the anticipated January 2020 violation. He further argued that by the time a rehearing occurred, the HOA would be in violation. The rehearing was granted and held on May 5, 2020.

Key Arguments at Rehearing

  1. Petitioner’s Admissions: The Petitioner reiterated that he had denied the HOA access until January 2020.
  2. New Claims: The Petitioner attempted to expand the scope of the dispute by arguing the HOA failed to maintain his neighbors’ properties.
  3. Current Controversy: The Petitioner argued that the HOA’s ongoing failure to maintain the landscaping after January 2020 created a present controversy.

**Legal Analysis and

Case Participants

Petitioner Side

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

Respondent Side

  • Nicole Payne (Respondent Attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
    Represented Respondent at hearing
  • Lydia A. Peirce Linsmeier (Respondent Attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
    Listed on distribution list for the rehearing order

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Listed on distribution list

Richard P Quinn vs. Homestead North Homeowners Association

Posted on by

Case Summary

Case ID 20F-H2019040-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-05-05
Administrative Law Judge Tammy L. Eigenheer
Outcome The ALJ dismissed the petition. The ruling clarified that while the Bylaws mention automatic resignation for delinquency, it is only effective upon Board acceptance. The Petitioner's attempt to accept the resignation via email did not constitute a valid Board action/vote.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Richard P. Quinn Counsel —
Respondent Homestead North Homeowners Association Counsel Quinten T. Cupps

Alleged Violations

Bylaws Article III, Section III, Item 4

Outcome Summary

The ALJ dismissed the petition. The ruling clarified that while the Bylaws mention automatic resignation for delinquency, it is only effective upon Board acceptance. The Petitioner's attempt to accept the resignation via email did not constitute a valid Board action/vote.

Why this result: The Bylaws explicitly state resignation is effective when the Board accepts it. The Petitioner's email action was not a valid Board act under the Bylaws regarding meetings and quorums.

Key Issues & Findings

Failure to accept automatic resignation of delinquent director

Petitioner alleged that a Board member's delinquency constituted an automatic resignation under the Bylaws and that he, as a Board member, accepted it via email. The ALJ determined that the Bylaws require the Board to accept the resignation for it to be effective. The Petitioner's email did not constitute an act of the Board as it was not done at a duly held meeting with a quorum.

Orders: Petitioner's petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • Bylaws Article III, Section 4
  • Bylaws Article III, Section 9

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Decision Documents

20F-H2019040-REL Decision – 787679.pdf

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20F-H2019040-REL Decision – 787679.pdf

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Administrative Law Judge Decision: Quinn v. Homestead North Homeowners Association

Executive Summary

This briefing document summarizes the administrative decision in the matter of Richard P. Quinn v. Homestead North Homeowners Association (Case No. 20F-H2019040-REL). The case centered on a dispute regarding whether a member of the Association’s Board of Directors, Karen Igo, had effectively resigned due to a financial delinquency under the Association's Bylaws.

The Petitioner, Richard P. Quinn, alleged that a "Wall Charge" of $3,925.00 applied to Ms. Igo’s account constituted a delinquent assessment that should have triggered an automatic resignation. The Respondent, Homestead North Homeowners Association, argued that even if a delinquency existed, the Board never formally accepted any resignation as required by the Bylaws. Administrative Law Judge Tammy L. Eigenheer ultimately dismissed the petition, ruling that the Petitioner failed to prove that the Board had legally accepted the resignation, a necessary condition for the resignation to take effect.

Detailed Analysis of Key Themes

1. Interpretation of "Automatic Resignation" Clauses

The case turned significantly on the specific language of the Association’s Bylaws, Article III, Section 4. While the Bylaws state that a delinquency of more than 30 days "shall automatically constitute a resignation," this phrase is immediately qualified by the clause "effective when the Board of Directors accepts such resignation."

The Administrative Law Judge (ALJ) determined that regardless of whether the debt was a delinquent assessment, the "automatic" resignation was not self-executing. It required an affirmative act of the Board to become effective. This interpretation underscores the principle that qualifying clauses in community documents can prevent immediate, unilateral changes in Board composition.

2. Quorum and Valid Board Actions

A central theme of the dispute was what constitutes a valid act of the Board. The Petitioner attempted to "accept" the resignation via email, claiming that as a Board member, his sole vote in favor (with no other responses) constituted a majority.

The ALJ rejected this based on Article III, Section 9 of the Bylaws, which defines a quorum and the requirements for a "duly held meeting." The ruling clarified two critical procedural standards:

  • Email is not a meeting: Correspondence via email does not satisfy the requirement for a duly held meeting.
  • Individual action is not Board action: A single member cannot constitute a quorum or take a "majority" vote in the absence of other participating members at a formal meeting.
3. Classification of Financial Obligations

The dispute highlighted the distinction between "Assessments" and other charges, such as "Wall Charges" or "Self-Help" codes. Ms. Igo’s account showed a $3,925.00 charge listed under "Self-Help" rather than "Assessment."

While the Petitioner argued this debt triggered the resignation clause, the Respondent noted that Ms. Igo had cleared the balance in full before the petition was filed. Ultimately, the ALJ found the classification of the debt moot because the procedural requirement for Board acceptance of the resignation had not been met.

Important Quotes with Context

Quote Context Significance
"Any delinquency or violation shall automatically constitute a resignation effective when the Board of Directors accepts such resignation." Found in Article III, Section 4 of the Association Bylaws. This is the "pivot point" of the case; it established that resignation is not final until the Board acts.
"Every act or decision done or made by a majority of the directors present at a duly held meeting at which a quorum is present shall be regarded as the act of the Board." Found in Article III, Section 9 of the Association Bylaws regarding Quorum. This established the legal standard for what counts as an official HOA decision.
"An email correspondence does not constitute a duly held meeting of the Board." Conclusion of Law #5 by ALJ Tammy L. Eigenheer. This clarifies that electronic messaging between members cannot bypass the formal meeting requirements of the Bylaws.
"Petitioner’s purported 'vote' could not be considered a majority of the Board voting on the matter." Conclusion of Law #5 regarding Petitioner’s email to other Board members. This emphasizes that one person cannot create a "majority" by being the only one to respond to an email.

Actionable Insights

Procedural Rigor in Governance

The decision emphasizes that Board members must adhere strictly to the procedural requirements outlined in their community documents. Unilateral actions—such as one member attempting to accept a resignation on behalf of the whole Board—are legally insufficient and will likely be overturned in administrative hearings.

The Limitation of Email in HOA Business

HOA Boards should be cautious about conducting official business via email. As demonstrated in this case, email lacks the legal standing of a "duly held meeting" unless specifically permitted and structured under state law or community bylaws. Official acts, particularly those involving the removal or resignation of directors, must occur within the framework of a meeting where a quorum is present.

Burden of Proof for Petitioners

In HOA disputes, the Petitioner bears the burden of proof to establish a violation by a "preponderance of the evidence." This case serves as a reminder that even if a violation seems apparent (such as a delinquency), the Petitioner must also prove that all conditions for a remedy (such as the effective date of a resignation) have been met according to the plain language of the Bylaws.

Drafting and Reviewing Bylaws

For community associations, the wording of "automatic" triggers is critical. The inclusion of the phrase "effective when the Board of Directors accepts such resignation" provides a safeguard for the Board to maintain stability, but it also creates a procedural hurdle that must be cleared before a seat can be declared vacant.

Case Study: Quinn v. Homestead North Homeowners Association (Administrative Decision 20F-H2019040-REL)

This study guide provides a comprehensive overview of the administrative hearing between Richard P. Quinn and the Homestead North Homeowners Association. It explores the interpretation of community bylaws, the legal requirements for board actions, and the evidentiary standards applied in Arizona administrative law.

Key Concepts and Legal Principles

1. The HOA Dispute Process (A.R.S. § 32-2199)

Under Arizona law, homeowners or planned community organizations may file a petition with the Department of Real Estate to resolve disputes regarding violations of community documents or state statutes. These cases are adjudicated by the Office of Administrative Hearings.

2. Automatic Resignation vs. Effective Resignation

The case centers on Article III, Section 4 of the Association's Bylaws. While a director’s delinquency in paying assessments for more than 30 days "automatically" constitutes a resignation, that resignation is not legally final or operational until it is formally accepted by the Board of Directors.

3. Board Quorum and Official Acts

Pursuant to Article III, Section 9 of the Bylaws:

  • Quorum: A majority of the directors must be present to transact business.
  • Act of the Board: An official decision or act of the Board requires a majority vote of the directors present at a "duly held meeting" where a quorum exists.
4. Evidentiary Standards: Preponderance of the Evidence

In administrative hearings, the Petitioner carries the burden of proof. They must establish the violation by a "preponderance of the evidence," meaning the evidence shows the claim is more probably true than not. This is defined as the "greater weight of the evidence" or evidence with the "most convincing force."

Short-Answer Practice Questions

1. What specific provision of the community documents did the Petitioner allege was violated? The Petitioner asserted a violation of Bylaws Article III, Section III, Item 4 (later referenced as Article III, Section 4).

2. What was the "Wall Charge" and how did it differ from a standard assessment? The Board posted a charge of $3,925.00 to Karen Igo’s account on March 13, 2019. It was categorized under the code type "Self-Help" rather than "Assessment."

3. According to the Bylaws, what circumstances besides delinquency can lead to the removal of a director? A director may be removed for more than three consecutive absences from regular Board meetings (unless due to injury or illness) or if they cease to be an owner of a lot or have an interest therein.

4. Why did the Administrative Law Judge (ALJ) reject the Petitioner's email "vote" as a valid Board action? The ALJ ruled that email correspondence does not constitute a "duly held meeting" of the Board. Furthermore, a single member’s email cannot constitute a quorum, meaning the individual vote was not a majority act of the Board.

5. What was the outcome of the October 30, 2019, Executive Session regarding this matter? The Petitioner attempted to raise the topic of the resignation, but the President of the Board "shut down" the Executive Session at that point.

6. What is the filing fee for an HOA Dispute Process Petition according to the document? The Petitioner paid a $500.00 filing fee.

Essay Prompts for Deeper Exploration

1. The Interplay of Automaticity and Board Discretion

Analyze the language of Article III, Section 4: "said delinquency or violation shall automatically constitute a resignation effective when the Board of Directors accepts such resignation." Discuss the potential conflict between the word "automatically" and the requirement for Board acceptance. Does this requirement give the Board the power to shield a delinquent member from removal?

2. Procedural Validity in Corporate Governance

Using the ALJ's findings regarding Article III, Section 9, argue the importance of "duly held meetings" and "quorums" in preventing unilateral actions by individual board members. Why is the Petitioner's reliance on Robert’s Rules of Order insufficient to overcome the specific requirements of the Association's Bylaws?

3. Definition of Debt in Homeowners Associations

The case bifurcated two questions: whether the "Wall Charge" was an "Assessment" and whether the Board accepted the resignation. Given that the charge was labeled "Self-Help," discuss how the classification of a debt impacts the rights and standing of board members under community governing documents.

Glossary of Important Terms

Term Definition
Administrative Law Judge (ALJ) A presiding officer who hears evidence and issues decisions in administrative law cases.
Assessment Periodic fees paid by homeowners to the HOA; delinquency in these may trigger board member disqualification.
Bifurcation The legal process of dividing a trial or hearing into two parts to address specific issues separately.
Duly Held Meeting A formal gathering of the Board conducted according to the rules set forth in the Bylaws.
Moot A point or question that is no longer relevant or has no practical legal effect; in this case, Respondent argued the issue was moot because the debt was paid.
Petitioner The party who files the petition or claim (Richard P. Quinn).
Preponderance of the Evidence The standard of proof in civil and administrative cases; proof that a contention is more likely true than not.
Quorum The minimum number of board members (a majority) required to be present to make the proceedings of a meeting valid.
Respondent The party against whom a petition is filed (Homestead North Homeowners Association).
Self-Help A specific code type used by the Association to categorize the "Wall Charge" debt, distinct from standard assessments.

HOA Resignations and the Power of Board Acceptance: A Case Study from Homestead North

Introduction: When Does a Board Resignation Actually Count?

In the battle between “automatic” rules and board process, process almost always wins. For many Homeowners Association (HOA) board members, the governing documents feel like a series of tripwires: miss a meeting, fall behind on dues, or violate a rule, and you’re out. But as a recent case from the Arizona Office of Administrative Hearings demonstrates, the law favors stability and formal procedure over the “gotcha” moments individual members might try to manufacture.

The case of Richard P. Quinn vs. Homestead North Homeowners Association (No. 20F-H2019040-REL) centers on a fundamental question of HOA governance: Can a board member be forced out the moment they become financially delinquent, or is the exit only final once the board officially “accepts” it? As we will see, even when a bylaw uses the word “automatic,” the procedural fine print often tells a different story.

The "Wall Charge" Controversy: Background of the Dispute

The conflict at Homestead North began with a significant charge on the account of board member Karen Igo. Petitioner Richard P. Quinn argued that this debt triggered an automatic resignation under the community’s bylaws, claiming Ms. Igo was ineligible to serve.

The financial timeline is essential to understanding the dispute:

  • March 13, 2019: The Association posted a "Wall Charge" of $3,925.00 to Ms. Igo’s account.
  • The "Self-Help" Distinction: Crucially, the Board categorized this as "Self-Help" rather than a standard "Assessment." In HOA governance, "Self-Help" typically refers to costs incurred by the association to repair or maintain an owner's property when the owner has failed to do so.
  • Payment History: From April through September 2019, Ms. Igo made monthly payments of $100.00. This covered her $48.50 monthly assessment and applied the remainder to the "Wall Charge."
  • Final Resolution: On October 21, 2019, Ms. Igo paid the remaining balance of $3,600.00 in full, resulting in a credit on her account.

Quinn’s argument was straightforward: Because the debt existed for more than 30 days, Ms. Igo had effectively resigned from the board by default. He contended that the moment the delinquency crossed the 30-day threshold, the seat became vacant.

Decoding the Bylaws: The "Effective When" Clause

To determine if Ms. Igo was actually ousted, the Administrative Law Judge (ALJ) scrutinized Article III, Section 4 of the Homestead North Bylaws. This section serves as the "Rule of Law" for director disqualification.

The Bylaws state:

"No director shall continue to serve on the Board if such director is more than thirty (30) days delinquent in the payment of an Assessment or in violation of Declaration or Architectural Guidelines and said delinquency or violation shall automatically constitute a resignation effective when the Board of Directors accepts such resignation."

As a governance specialist, I cannot overemphasize the importance of that final phrase. While Quinn focused on the word "automatically," the ALJ focused on the procedural gatekeeper: the resignation is only effective when the Board accepts it. This wording prevents "automatic" rules from being weaponized to decapitate a board without the remaining directors’ knowledge or consent. It transforms a self-executing event into one that requires formal board action.

The Procedural Pitfall: Why an Email Isn't a Meeting

In an attempt to force the issue, Quinn took matters into his own hands. On October 18, 2019, he sent an email to the board stating that he, as a director, accepted Ms. Igo’s resignation. When no other directors responded, Quinn argued that under Robert’s Rules of Order, his single "vote" constituted a majority of one to zero.

The reality of board governance is rarely that simple. The "messy reality" of this dispute peaked on October 30, 2019, during an Executive Session. When Quinn attempted to raise the issue of Ms. Igo’s resignation, the Board President "shut down" the session entirely, refusing to entertain the unilateral move.

The ALJ’s reasoning for rejecting Quinn’s email "acceptance" rested on two foundational pillars of HOA law found in Article III, Section 9:

  • The Quorum Rule: Official board acts require a majority of directors to be present to constitute a quorum. One director acting alone via email never meets the legal threshold for a quorum.
  • The Meeting Requirement: An "act of the Board" must occur at a "duly held meeting." The judge ruled that an email chain is not a meeting. Governance cannot be conducted through one-sided digital correspondence; it requires a formal forum where the body can deliberate and vote.

The ALJ's Final Verdict: A Lesson in Governance

The Administrative Law Judge ruled in favor of the Association, dismissing the petition. The decision hinged on the preponderance of the evidence—the legal standard requiring the Petitioner to prove that his claims were more likely true than not.

The ALJ concluded that Quinn failed to prove the Board ever formally accepted the resignation at a duly held meeting. Because the "procedural gate" of board acceptance was never passed, the underlying question—whether the "Wall Charge" technically qualified as an "Assessment"—became moot. In legal terms, since the board hadn't accepted the resignation, the nature of the debt was irrelevant; Ms. Igo remained on the board regardless.

Key Takeaways for HOA Boards and Members

This case is a masterclass in why process matters as much as—if not more than—the rules themselves. Board members and directors should take note of these three pillars:

  1. Language Matters—Look for the "Hook": Pro-tip: Always look for phrases like "effective when the board accepts." These hooks are designed to protect the board from being destabilized by minor accounting errors or weaponized bylaws. They ensure that the board maintains control over its own composition.
  2. Process Over Emotion: Even if a violation seems black-and-white, individual board members cannot act unilaterally. Whether it is an email or an unscheduled outburst in an executive session, efforts to bypass formal agendas will almost always fail in court.
  3. Know Your Quorum: To be legally defensible, a board decision must be a collective act. This means notice, a quorum, and a formal vote at a "duly held meeting." Private emails and "votes of one" are not just bad practice; they are legally void.

By adhering strictly to procedural bylaws, HOAs can avoid the high costs and headaches of administrative hearings, ensuring that community leadership remains stable and legally sound.

Case Participants

Petitioner Side

  • Richard P. Quinn (Petitioner)
    Homestead North Homeowners Association (Board Member)
    Appeared on his own behalf; member of the Board

Respondent Side

  • Quinten T. Cupps (Respondent Attorney)
    Represented Homestead North Homeowners Association
  • Karen Igo (Board member)
    Homestead North Homeowners Association
    Subject of the resignation dispute; had delinquent 'Wall Charge'

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Recipient of the order

Kenneth E Kassa v. Queen Creek Ranchettes Homeowners Association,

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Case Summary

Case ID 20F-H2019035-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-04-28
Administrative Law Judge Jenna Clark
Outcome The ALJ denied the petition, finding that the HOA complied with requirements to hold annual meetings and the Petitioner did not sustain the burden of proof regarding alleged violations involving closed meetings.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Kenneth E. Kassa Counsel —
Respondent Queen Creek Ranchettes Homeowners Association, Inc. Counsel —

Alleged Violations

A.R.S. § 33-1804

Outcome Summary

The ALJ denied the petition, finding that the HOA complied with requirements to hold annual meetings and the Petitioner did not sustain the burden of proof regarding alleged violations involving closed meetings.

Why this result: Burden of proof not met; Petitioner provided no evidence that specific private meetings violated A.R.S. § 33-1804.

Key Issues & Findings

Violation of Open Meeting Law

Petitioner alleged the Association violated open meeting laws by holding closed meetings that should have been public and failing to properly notice meetings.

Orders: The Administrative Law Judge ordered that the Petitioner's petition be denied.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1804

Video Overview

Audio Overview

Decision Documents

20F-H2019035-REL Decision – 785528.pdf

Uploaded 2026-04-24T11:24:50 (146.6 KB)

20F-H2019035-REL Decision – 785528.pdf

Uploaded 2026-02-11T06:44:59 (146.6 KB)

Administrative Law Judge Decision: Kenneth E. Kassa vs. Queen Creek Ranchettes Homeowners Association, Inc.

Executive Summary

This briefing document details the administrative hearing and subsequent decision regarding a dispute between Kenneth E. Kassa (Petitioner) and the Queen Creek Ranchettes Homeowners Association, Inc. (Respondent/Association). The case, presided over by Administrative Law Judge (ALJ) Jenna Clark, centered on allegations that the Association violated Arizona’s Open Meeting Law, specifically A.R.S. § 33-1804.

The Petitioner contended that the Board of Directors improperly held private meetings and failed to provide adequate notice or transparency regarding their deliberations between 2017 and 2019. The Association maintained that it complied with its Bylaws by holding one annual public meeting and conducting Board business within its vested powers.

Following an evidentiary hearing on April 8, 2020, the ALJ concluded that the Petitioner failed to sustain the burden of proof. The ALJ found no evidence that the Board’s private sessions addressed matters required by law to be open to the public. Consequently, the petition was denied, and no violation of A.R.S. § 33-1804 was found.

Detailed Analysis of Key Themes

1. Statutory Compliance vs. Association Bylaws

The crux of the dispute involved the interplay between the Association’s governing documents and state statutes.

  • Association Bylaws: The Bylaws (Sections 4.01 and 6.01) require at least one annual meeting of the members and one annual meeting of the Board. The Association relied on these provisions to justify its practice of holding a single public annual meeting.
  • A.R.S. § 33-1804: This statute mandates that all meetings of the members' association and the board of directors be open to all members, regardless of contrary provisions in a declaration or bylaws. It allows for closed sessions only under five specific circumstances (e.g., legal advice, litigation, or personal employee information).
2. Notice and Transparency Requirements

The hearing revealed a discrepancy between the Association’s notification practices and statutory requirements:

  • Association Practice: The Association provided notice for meetings solely by placing flyers in common areas. Meeting minutes were not proactively distributed but were made available upon written request.
  • Legal Requirements (A.R.S. § 33-1804(B)): The statute requires that notice of member meetings be hand-delivered or sent via prepaid U.S. mail to each owner 10 to 50 days in advance, stating the date, time, place, and purpose of the meeting.
3. Burden of Proof in Administrative Hearings

The decision highlights the "preponderance of the evidence" standard required in these proceedings. The Petitioner was responsible for proving it was "more probably true than not" that the Association violated the law. While the Petitioner opined that closed meetings should have been open, the ALJ noted a lack of specific evidence regarding the content of those meetings that would prove a statutory violation.

Key Entities and Legal Framework

Entity/Element Description
Kenneth E. Kassa Petitioner; a property owner and member of Queen Creek Ranchettes Phase I.
Queen Creek Ranchettes HOA Respondent; a residential real estate development association in Queen Creek, AZ.
A.R.S. § 33-1804 The Arizona statute regulating open meetings for planned communities.
The Board of Directors The governing body of the Association, vested with all rights, powers, and duties of the Association.
Office of Administrative Hearings (OAH) The independent state agency responsible for conducting the evidentiary hearing.

Important Quotes with Context

On the Open Meeting Requirement

"Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members' association and the board of directors… are open to all members of the association."

— A.R.S. § 33-1804(A)

Context: This statute serves as the primary legal standard for the case, overriding any Association Bylaws that might suggest meetings could be closed by default.

On the Definition of Proof

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

— ALJ Decision, Conclusions of Law ¶ 4 (referencing Morris K. Udall)

Context: The ALJ used this definition to explain why the Petitioner’s arguments failed; the Petitioner offered opinions and beliefs rather than the "superior evidentiary weight" required to win the case.

On the Burden of Evidence

"Petitioner provided no evidence to suggest that the Association was in violation of ARIZ. REV. STAT. § 33-1804 based on what was discussed in private Board meetings held between 2017 and 2019."

— ALJ Decision, Conclusions of Law ¶ 11

Context: This quote captures the primary reason for the denial of the petition. The Petitioner failed to provide factual evidence of what occurred in the closed sessions.

Actionable Insights

For Association Boards
  • Statutory Overrides: Associations must recognize that state statutes regarding open meetings (A.R.S. § 33-1804) take precedence over internal CC&Rs or Bylaws. Relying solely on Bylaws that conflict with state law can lead to litigation.
  • Closed Session Justification: Under A.R.S. § 33-1804(C), a Board must identify the specific statutory paragraph (e.g., legal advice, pending litigation) that authorizes them to close a meeting before entering a executive session.
  • Formal Notice Procedures: To ensure compliance, associations should follow the statutory requirement of hand-delivering or mailing notices 10 to 50 days in advance, rather than relying exclusively on flyers in common areas.
For Association Members
  • Evidence-Based Petitions: When alleging violations of the Open Meeting Law, members must provide specific evidence of the topics discussed in closed sessions or the failure of the Board to cite a statutory reason for closing a meeting. Mere suspicion or opinion is insufficient to meet the burden of proof.
  • Accessing Records: Members have the right to request meeting minutes in writing, a practice confirmed as valid in this case.
  • Jurisdiction Limits: Administrative Law Judges are limited to the issues raised in the petition. Secondary arguments regarding the "appropriateness" of meeting content may be deemed outside the tribunal's scope if they are not directly tied to the specific statutory violation alleged.

Study Guide: Kassa v. Queen Creek Ranchettes Homeowners Association, Inc.

This study guide provides a comprehensive overview of the administrative hearing between Kenneth E. Kassa (Petitioner) and the Queen Creek Ranchettes Homeowners Association, Inc. (Respondent/Association). It explores the legal frameworks governing Arizona homeowners' associations, the specifics of the Open Meeting Law, and the standards of proof required in administrative disputes.

Key Concepts and Legal Framework

1. Statutory Authority and Jurisdiction

The Arizona Department of Real Estate is authorized by statute to decide petitions regarding disputes between homeowners and associations. The Office of Administrative Hearings (OAH), an independent state agency, conducts evidentiary hearings to resolve these contested cases. In this matter, the authority to hear the case is derived from ARIZ. REV. STAT. §§ 32-2199.01(D) and 41-1092.

2. Arizona Open Meeting Law (A.R.S. § 33-1804)

This statute serves as the primary regulation for association transparency. Its key provisions include:

  • Open Access: All meetings of the members' association, the board of directors, and regularly scheduled committee meetings must be open to all members or their designated representatives.
  • Member Participation: Members must be permitted to attend and speak at appropriate times during deliberations.
  • Supremacy of Law: The statute applies notwithstanding any contrary provisions in an association's declaration, bylaws, or other documents.
3. Exceptions for Closed Meetings

Under A.R.S. § 33-1804(A), a meeting or portion thereof may only be closed to consider:

  1. Legal advice from an attorney for the board or association.
  2. Pending or contemplated litigation.
  3. Personal, health, or financial information about an individual member, employee, or contractor.
  4. Matters relating to job performance, compensation, or specific complaints against employees or contractors.
  5. Discussion of a member's appeal of a violation or penalty (unless the member requests an open session).
4. Notice and Documentation Requirements
  • Notice (Statutory): For member meetings, notice must be hand-delivered or mailed 10 to 50 days in advance, stating the date, time, place, and purpose.
  • Notice (Bylaws): The Association's specific bylaws required notice at least 5 but no more than 30 days before a meeting.
  • Meeting Minutes: While the Association in this case did not distribute minutes automatically, they were made available to members upon written request.
5. Burden of Proof

In administrative proceedings of this nature, the Petitioner bears the burden of proof. They must prove the violation by a preponderance of the evidence, meaning the evidence must show that the contention is "more probably true than not."

Short-Answer Practice Questions

  1. What was the core issue Kenneth E. Kassa alleged in his petition?
  • Answer: Petitioner alleged that the Queen Creek Ranchettes Homeowners Association, Inc. violated Arizona Open Meeting Law (A.R.S. § 33-1804).
  1. According to the Association's Bylaws, how often must regular meetings of the Board be held?
  • Answer: Bylaws Article VI, Section 6.01 states regular Board meetings shall be held at least annually.
  1. What method did the Association use to provide notice for the meetings held between 2017 and 2019?
  • Answer: Notice was provided by placing flyers in common areas; no other form of notice was provided to members.
  1. What is the legal definition of "preponderance of the evidence" used in this decision?
  • Answer: It is proof that convinces the trier of fact that a contention is more probably true than not, representing the "greater weight of the evidence" with the most convincing force.
  1. Before entering a closed session, what must a Board of Directors do according to A.R.S. § 33-1804(C)?
  • Answer: The board must identify the specific statutory paragraph (under subsection A) that authorizes the closure of the meeting.
  1. Under the Association's Bylaws, who is authorized to call a special meeting?
  • Answer: The President of the Association or the Board upon written request of Members entitled to cast one-fourth (1/4) of Class A membership votes, or the Class B Member (if any).

Essay Prompts for Deeper Exploration

  1. The Conflict of Governing Documents: Analyze the hierarchy of authority between an HOA’s Bylaws/CC&Rs and state statutes like A.R.S. § 33-1804. How does the "notwithstanding" clause in the statute affect the enforceability of Association documents that might seek to limit member access to meetings?
  1. Transparency vs. Privacy: Discuss the five statutory exceptions that allow an HOA board to hold a closed meeting. Why is it necessary to balance the membership's right to an open meeting with the need for privacy in matters of legal advice or personnel performance?
  1. The Burden of Evidence in Administrative Hearings: In this case, the Administrative Law Judge ruled that the Petitioner failed to sustain his burden of proof. Evaluate the challenges a member faces when alleging that "private" meetings should have been "public." What kind of evidence would be required to prove that a closed session was used for an unauthorized purpose?

Glossary of Important Terms

Term Definition
Administrative Law Judge (ALJ) A judge who presides over hearings and makes findings of fact and conclusions of law for administrative agencies.
Bylaws The rules adopted by an organization for its internal governance.
CC&Rs Covenants, Conditions, and Restrictions; an enforceable contract between an association and property owners regarding property use.
Class A/B Membership Specific categories of membership within an association, often defining different voting rights or roles.
Declaration A legal document that establishes the homeowner's association and its governance; in conflicts, the Declaration typically controls over Bylaws.
OAH Office of Administrative Hearings; an independent Arizona state agency that conducts evidentiary hearings.
Petitioner The party who files a petition or complaint (in this case, Kenneth E. Kassa).
Preponderance of the Evidence The standard of proof in civil and administrative cases where the evidence must show a claim is more likely to be true than not.
Respondent The party against whom a petition is filed (in this case, the Queen Creek Ranchettes Homeowners Association).
A.R.S. § 33-1804 The specific section of the Arizona Revised Statutes known as the Open Meeting Law for planned communities.

Understanding HOA Open Meeting Laws: Lessons from the Queen Creek Ranchettes Ruling

1. Introduction: The Tension Between Privacy and Transparency

In the management of Arizona homeowners associations, few issues generate as much friction as the balance between a board’s operational privacy and a homeowner’s right to transparency. Boards often feel the need to discuss sensitive matters behind closed doors to protect the association, while homeowners may view any non-public discussion with skepticism. This tension frequently leads to formal disputes regarding the "Open Meeting Law."

The case of Kenneth E. Kassa vs. Queen Creek Ranchettes HOA serves as a critical case study for both boards and members. It illustrates how the Arizona Department of Real Estate and Administrative Law Judges interpret the law when a homeowner alleges that their board is operating in the shadows. As a consultant, my goal is to help you navigate these rulings so you can ensure your association remains compliant and avoids the costs of administrative litigation.

2. The Legal Foundation: Arizona’s Open Meeting Law (A.R.S. § 33-1804)

The bedrock of HOA transparency in Arizona is A.R.S. § 33-1804. This statute is unique because it explicitly states that its requirements apply notwithstanding any provision in the bylaws or declarations to the contrary. This means that even if your association’s older bylaws say one thing, state law is the final authority.

Under A.R.S. § 33-1804(A), all meetings of the association and the board of directors must be open to all members. However, the law provides five—and only five—specific conditions under which a board is legally permitted to move into a closed executive session:

  • Legal advice from an attorney for the board or the association.
  • Pending or contemplated litigation.
  • Personal, health, or financial information regarding an individual member, an association employee, or a contractor's employee.
  • Matters relating to job performance, compensation, or specific complaints against an association employee or contractor.
  • A member’s appeal of a violation or penalty, unless that member specifically requests the meeting be held in an open session.

Beyond the content of the meetings, A.R.S. § 33-1804(B) sets strict procedural requirements for member meeting notices. The law requires notice to be hand-delivered or sent via prepaid U.S. mail not fewer than 10 nor more than 50 days before the meeting. It is vital to note that in the Kassa case, the association’s bylaws suggested a 5-to-30-day window. As your consultant, I must remind you: the statutory 10-to-50-day window overrides your bylaws every time.

3. Case Breakdown: The Petitioner’s Allegations vs. HOA Practices

In the Kassa proceeding, the Petitioner challenged the board’s habit of conducting the majority of its business in private. The conflict highlights a significant gap between what a homeowner perceives as "secrecy" and what an association views as "standard practice."

The Petitioner’s Arguments:

  • Board meetings were held privately throughout the year without legal justification or proper notice.
  • The single annual public meeting was merely a summary of "closed-door" decisions rather than a place for true deliberation.
  • There was a lack of evidence that the board was sharing or posting meeting minutes with the community.

The Association’s Practices:

  • The Association held only one annual public meeting for members in 2017, 2018, and 2019, while holding all other monthly board meetings privately.
  • Notice for these meetings was provided exclusively through flyers placed in common areas.
  • Meeting minutes were not proactively distributed but were made available to any member who submitted a written request.
4. The Verdict: Why the Burden of Proof Matters

The Administrative Law Judge (ALJ) ultimately denied the petition, but the reasoning was procedural rather than a full endorsement of the board’s methods. The decision turned on the "Preponderance of the Evidence."

In legal terms, this standard means that the Petitioner must prove that their claim is "more probably true than not." The judge found that the Petitioner failed to meet this burden for two reasons:

  1. Failure to Prove Improper Content: While the Petitioner proved the meetings were private, he provided "no evidence" to suggest that the topics discussed were outside the five legal exceptions.
  2. Procedural Limitations: The judge noted that the tribunal could not rule on the "appropriateness" of private meetings without specific evidence of a statutory violation regarding the meeting's subject matter.

Essentially, the Board was saved by the Petitioner's lack of documentation. The judge did not rule that the Board's transparency was perfect; rather, she ruled that the Petitioner didn't prove it was illegal.

5. Essential Takeaways for Homeowners and Boards

This ruling offers several actionable lessons for navigating HOA governance.

  • For Homeowners: Maintain an Evidence Log. A mere suspicion that a board is discussing non-exempt topics in private is not enough to win a case. If you believe a board is violating the Open Meeting Law, you must provide specific evidence of the topics discussed. Proactive inquiry and documenting board responses are essential.
  • For Boards: Audit Your Notice Procedures Immediately. While the Queen Creek Ranchettes HOA survived this challenge, their use of "common area flyers" for notice is a significant legal risk. A.R.S. § 33-1804(B) specifically requires notice to be mailed or hand-delivered. Do not rely on flyers or signs as a substitute for the statutory mailing requirements, as a more prepared petitioner could use that procedural failure to invalidate board actions.
  • The Right to Minutes. This ruling confirms that associations are not legally required to proactively "broadcast" minutes to the entire community. However, you must provide them upon written request. Boards should ensure they have a clear, documented process for responding to these requests to demonstrate transparency.
6. Conclusion: Navigating Future Governance

The Kassa vs. Queen Creek Ranchettes case is a reminder that transparency is not just a best practice—it is a legal framework. For homeowners, it highlights that the "burden of proof" is a high bar that requires more than just frustration; it requires evidence. For boards, it serves as a warning that relying on outdated bylaws or informal notice methods (like flyers) puts the association in a position of unnecessary vulnerability.

Ultimately, adherence to the 10-to-50-day statutory notice requirement and maintaining clear records of what is discussed in executive sessions are your best defenses. By aligning your procedures with state law rather than just your bylaws, you can prevent costly administrative hearings and build a culture of trust within your community.

Case Participants

Petitioner Side

  • Kenneth E. Kassa (petitioner)
    Queen Creek Ranchettes Phase I subdivision property owner
    Appeared on his own behalf

Respondent Side

  • Jody Augustin (board member)
    Queen Creek Ranchettes Homeowners Association, Inc.
    Represented the Association; called as a witness

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Recipient of the transmitted order

Other Participants

  • Dean McDaniels (observer)
    Listed under Appearances as observing
  • Kelly Kassa (observer)
    Listed under Appearances as observing
  • Kimberly Timm (observer)
    Listed under Appearances as observing
  • Sonya Foster (observer)
    Listed under Appearances as observing
  • Colleen Kaul (observer)
    Listed under Appearances as observing