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
Video Overview
Audio Overview
Decision Documents
20F-H2020054-REL Decision – 810957.pdf
Uploaded 2026-01-23T17:32:37 (103.0 KB)
Briefing Doc – 20F-H2020054-REL
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 – 20F-H2020054-REL
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.
Blog Post – 20F-H2020054-REL
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
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].
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 – 20F-H2019019-REL
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.
Blog Post – 20F-H2019019-REL
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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.
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
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
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].
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 2025-10-09T03:34:59 (157.4 KB)
Briefing Doc – 20F-H2020046-REL
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 – 20F-H2020046-REL
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.
Blog Post – 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.
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?
Based on 1 source
Case Participants
Petitioner Side
Susan L. Alandar(petitioner) Appeared on her own behalf.
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 2026-01-23T17:31:55 (157.4 KB)
Briefing Doc – 20F-H2020046-REL
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 – 20F-H2020046-REL
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.
Blog Post – 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.
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?
Based on 1 source
Case Participants
Petitioner Side
Susan L. Alandar(petitioner) Appeared on her own behalf.
The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to meet the burden of proof that the Condominium Association violated its governing documents or state statute regarding record inspection, specifically because the Association did not possess and was not required to create a Membership Register containing unit owners' email addresses.
Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent violated the provisions of CC&Rs Section 11.4.8, Bylaws Section 10.3, or A.R.S. § 33-1158 (or § 33-1258) because the requested record (a Membership Register containing email addresses) did not exist, and the Association was not obligated to create it.
Key Issues & Findings
Refusal to provide access to the membership register (Owner Roster with emails)
Petitioner alleged the Respondent violated governing documents and statute by refusing access to the membership register containing email addresses. Respondent argued email addresses were protected 'personal records' under A.R.S. § 33-1258(B)(4). The ALJ found the Petitioner failed to prove a violation because the requested document (a Membership Register containing emails) did not exist, and Respondent had no obligation to create it.
Orders: The petition is dismissed and no action is required of Respondent.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1258
CC&Rs 11.4.8
Bylaws 10.3
Analytics Highlights
Topics: records inspection, membership roster, email addresses, HOA records, condominium association, A.R.S. 33-1258
Additional Citations:
A.R.S. § 32-2199.01
A.R.S. § 33-1258
A.R.S. § 33-1258(B)(4)
A.R.S. § 33-1158
CC&Rs 11.4.8
Bylaws 10.3
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.R.S. §32-2199.02(B)
A.R.S. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
20F-H2020055-REL Decision – 807817.pdf
Uploaded 2025-10-09T03:35:16 (107.3 KB)
Briefing Doc – 20F-H2020055-REL
Administrative Hearing Briefing: Tomisak v. Arrowhead Lakes Condominium Association
Executive Summary
This briefing document outlines the findings and decision in the case of Robert Tomisak versus the Arrowhead Lakes Condominium Association (Case No. 20F-H2020055-REL), heard in the Office of Administrative Hearings. The petitioner, Mr. Tomisak, alleged that the Association violated its governing documents and Arizona state law by refusing his request for an owner roster that included member email addresses. The Association countered that email addresses constitute protected personal information and, more critically, that a membership register containing such information no longer exists.
The Administrative Law Judge ultimately dismissed the petition. The decision did not hinge on whether email addresses are “personal records” under the law. Instead, the ruling was based on the factual determination that the Association cannot be compelled to produce a document that it does not maintain. Since the Association had ceased including email addresses in its Membership Register in 2018, the judge concluded that the petitioner had no right to a non-existent record and had failed to meet the burden of proof required to show a violation.
I. Case Overview
Case Name
Robert Tomisak v. Arrowhead Lakes Condominium Association
Case Number
20F-H2020055-REL
Office of Administrative Hearings
Administrative Law Judge
Sondra J. Vanella
Petitioner
Robert Tomisak, Owner of Unit 1902 (Appeared on his own behalf)
Respondent
Arrowhead Lakes Condominium Association (Represented by Property Manager Terri Troy)
Hearing Date
July 9, 2020
Decision Date
July 17, 2020
II. Petitioner’s Allegations
On April 15, 2020, Robert Tomisak filed a single-issue petition alleging that the Arrowhead Lakes Condominium Association had violated its own governing documents and Arizona state law. The core of the complaint was the Association’s refusal to fulfill his March 11, 2020, email request “to provide access to the membership register” containing owner email addresses.
Mr. Tomisak specifically cited violations of the following provisions:
• Covenants, Conditions, and Restrictions (CC&Rs): Article 11, Section 4.8
• Bylaws: Article 10.3
• Arizona Revised Statutes (A.R.S.): § 33-1258
III. Respondent’s Position and Defense
The Association, through its property management company AS&A Property Management, Inc., and represented by Property Manager Terri Troy, denied all allegations. The defense rested on two key arguments:
1. Privacy Exemption: The Association contended that members’ email addresses are “personal records” and therefore exempt from disclosure under A.R.S. § 33-1258(B)(4), which protects the “personal, health or financial records of an individual member.”
2. Non-Existence of the Record: Ms. Troy testified that while the Association would readily provide the official Membership Register (containing names and addresses), this document no longer includes email addresses. This practice of excluding emails from the register began in 2018.
IV. Key Evidence and Testimony
The March 11, 2020 Email Exchange
The dispute originated with a direct email exchange between the petitioner and the property manager.
• Petitioner’s Request (7:33 a.m.): Mr. Tomisak sent an email with the subject line “Owner Roster” stating:
• Respondent’s Denial (8:23 a.m.): Ms. Troy responded with a direct refusal, citing the statutory exemption for personal information:
Hearing Testimony
During the July 9, 2020 hearing, both parties presented their arguments:
• Robert Tomisak (Petitioner): Acknowledged that he already had access to member mailing addresses but specifically required their email addresses. He argued that email addresses are not “personal information” and cited “the internet” and “California case law” as authority for this position.
• Terri Troy (Respondent): Reiterated the Association’s willingness to provide the existing Membership Register, which contains names, addresses, and unit numbers. She explained that email addresses had been removed from this register starting in 2018 and that her refusal was based on the belief that emails are protected “personal records” under A.R.S. § 33-1258(B)(4).
The Administrative Law Judge noted that neither party cited “any relevant or persuasive legal authority” to formally define “personal records” as used in the statute.
V. Legal Framework and Governing Documents
The case centered on the interpretation of three key provisions granting members access to Association records.
Document
Section
Key Provision
11.4.8
“The Association shall make available to Owners… current copies of the Declaration, Articles, Bylaws, rules of the Association and the books, records, and financial statements of the Association.”
Bylaws
“The membership register… shall be made available for inspection and copying by Members of the Association… for a purpose reasonably related to their interests as Members…”
A.R.S.
§ 33-1258(A)
“all financial and other records of the association shall be made reasonably available for examination by any member…”
A.R.S.
§ 33-1258(B)(4)
“Books and records… may be withheld from disclosure to the extent that the portion withheld relates to… Personal, health or financial records of an individual member of the association…”
VI. Administrative Law Judge’s Findings and Order
Burden of Proof
The judge established that the petitioner, Mr. Tomisak, bore the burden of proof to demonstrate by a “preponderance of the evidence” that the Association had committed the alleged violations. A preponderance of evidence is defined as that which is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”
Central Conclusion
The judge’s ruling was not based on the privacy argument regarding whether email addresses are “personal records.” Instead, the decision was grounded in a more fundamental point of fact regarding the existence of the requested document. The judge’s decisive conclusion of law stated:
While Petitioner has the right to enforce the requirements of the above provisions, Petitioner does not have the right to a record that does not exist, i.e., a Membership Register containing email addresses. Further, there is no requirement in the above provisions that Respondent has an obligation to create such a document.
Final Ruling
Based on this central finding, the judge held that Mr. Tomisak failed to meet his burden of proof and did not establish that the Association had violated its CC&Rs, its Bylaws, or A.R.S. § 33-1158.
IT IS ORDERED that no action is required of Respondent in this matter and that the petition is dismissed. The order is binding unless a rehearing is requested within 30 days of its service.
Study Guide – 20F-H2020055-REL
Study Guide: Tomisak v. Arrowhead Lakes Condominium Association
This study guide provides a review of the administrative hearing decision in case number 20F-H2020055-REL, involving Petitioner Robert Tomisak and Respondent Arrowhead Lakes Condominium Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to test and deepen understanding of the case.
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Short-Answer Quiz
Instructions: Answer the following ten questions in 2-3 complete sentences, based entirely on the information provided in the case document.
1. Who were the petitioner and the respondent in this case, and what was their established relationship?
2. What specific document and data did the petitioner request from the respondent in his email dated March 11, 2020?
3. On what legal grounds did the respondent deny the petitioner’s request? Cite the specific statutory provision they referenced.
4. Identify the three governing documents or statutes that the petitioner alleged the respondent had violated.
5. What information was the respondent, through its property manager Terri Troy, willing to provide to the petitioner?
6. What was the central reason cited by the Administrative Law Judge in the “Conclusions of Law” for dismissing the petition?
7. Define the “preponderance of the evidence” standard and identify which party had the burden of meeting this standard.
8. What authority did the petitioner cite during the hearing to support his argument that email addresses do not constitute “personal information”?
9. According to Property Manager Terri Troy’s testimony, when and why did the content of the Membership Register change?
10. What was the final order issued by the Administrative Law Judge on July 17, 2020?
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Answer Key
1. The petitioner was Robert Tomisak, who owns condominium unit 1902 in the Arrowhead Lakes development. The respondent was the Arrowhead Lakes Condominium Association, of which the petitioner is a member.
2. The petitioner requested an electronic copy of the “Owner’s Roster with emails.” He specifically wanted a membership list that included the email addresses of the other condominium owners.
3. The respondent denied the request based on A.R.S. § 33-1258(B)(4). They argued that this provision allows an association to withhold the “personal records of an individual member,” and they considered email addresses to fall under this category.
4. The petitioner alleged the respondent violated its Covenants, Conditions, and Restrictions (CC&Rs) Article 11, Section 4.8; its Bylaws, Article 10.3; and Arizona Revised Statute (A.R.S.) § 33-1258.
5. The respondent was willing to provide the Membership Register, which included the names, unit numbers, and mailing addresses of the members. However, this register did not contain email addresses.
6. The judge dismissed the petition because the petitioner did not have the right to a record that does not exist—namely, a Membership Register containing email addresses. The judge concluded there was no requirement in the governing provisions for the respondent to create such a document.
7. A “preponderance of the evidence” is the standard of proof requiring the trier of fact to be convinced that a contention is more probably true than not. The petitioner, Robert Tomisak, bore the burden of establishing his claim by this standard.
8. During the hearing, the petitioner cited “the internet” and “California case law” as his authority for the proposition that email addresses were not considered personal information.
9. Terri Troy testified that the Membership Register previously contained email addresses but that this practice was stopped beginning in 2018. The change was made based on the association’s belief that email addresses were the “personal records” of the owners.
10. The final order stated that no action was required of the respondent and that the petition was dismissed.
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Essay Questions
Instructions: The following questions are designed for a longer, essay-style response. Use the case document to formulate a detailed and well-supported argument.
1. Analyze the central legal conflict in this case. Discuss the petitioner’s interpretation of a member’s right to access records under the CC&Rs, Bylaws, and A.R.S. § 33-1258 versus the respondent’s interpretation, focusing on the exemption for “personal records.”
2. Evaluate the evidence presented by both the petitioner and the respondent during the July 9, 2020 hearing. Explain why the judge ultimately found that the petitioner failed to meet the “preponderance of the evidence” standard.
3. The judge’s decision rested heavily on the finding that the respondent was not obligated to create a document that did not exist. Discuss the significance of this finding. How might the case outcome have differed if the Membership Register still actively contained member email addresses at the time of the request?
4. Discuss the concept of “burden of proof” as it applies to this administrative hearing. Explain why this burden fell upon the petitioner and how the failure to meet this evidentiary standard was a determinative factor in the dismissal of the petition.
5. Examine the roles and interaction of the governing documents (CC&Rs, Bylaws) and state law (A.R.S. § 33-1258) in this dispute. Which provisions offered the petitioner the right to inspect records, and which specific clause provided the strongest defense for the respondent?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official who presides over the evidentiary hearing at the Office of Administrative Hearings and issues a decision. In this case, Sondra J. Vanella.
A.R.S. § 33-1258
The Arizona Revised Statute that mandates associations make financial and other records “reasonably available” to members, while also providing exceptions for withholding certain information, such as “personal, health or financial records of an individual member.”
Association
The Arrowhead Lakes Condominium Association, a condominium unit owners’ association responsible for managing the Arrowhead Lakes development.
Bylaws
The rules governing the internal operations of the association. Section 10.3 is referenced, which grants members the right to inspect the “membership register” and other books and records.
Covenants, Conditions, and Restrictions. These are the primary governing legal documents for the condominium development. Section 11.4.8 is referenced, which requires the association to make its books and records available to owners.
Membership Register
A formal list of the members of the association. The respondent’s register included names and addresses with unit numbers but, as of 2018, no longer included email addresses.
Petitioner
The party who files a petition to initiate a legal proceeding. In this case, Robert Tomisak, a condominium owner and member of the association.
Preponderance of the Evidence
The standard of proof required in this administrative hearing. It is met when the evidence presented is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other,” making a contention more probably true than not.
Respondent
The party against whom a petition is filed. In this case, the Arrowhead Lakes Condominium Association.
Blog Post – 20F-H2020055-REL
He Sued His Condo Association for an Email List. The Judge’s Reason for Saying No Will Surprise You.
If you live in a condominium or a community governed by a homeowners’ association, you’ve likely wondered what official records you’re entitled to see. From financial statements to meeting minutes, these documents are the backbone of a transparent community. But what happens when the information you want isn’t in a format the association readily provides?
This was the central conflict for Robert Tomisak, a condominium owner in Glendale, Arizona. At 7:33 a.m. on March 11, 2020, he sent an email to his association requesting an electronic copy of the “Owner’s Roster with emails.” Less than an hour later, at 8:23 a.m., the property manager refused. Believing he was legally entitled to the list, Mr. Tomisak sued. When the case went before an administrative law judge, the final decision hinged on a simple but powerful distinction that most people would never see coming. This case reveals some surprising truths about our rights to information and how they are applied in the real world.
1. Takeaway #1: Your right is to inspectexistingrecords, not to have new ones created for you.
The core of the judge’s decision came down to a simple, factual matter. While Mr. Tomisak had a legal right to inspect association records, the specific document he requested—a Membership Register that included email addresses—did not actually exist.
According to testimony from property manager Terri Troy, the association was perfectly willing to provide the official Membership Register, which contained owner names and mailing addresses. However, she clarified that the association had stopped including email addresses in that specific record back in 2018. The judge found this fact to be decisive. While the petitioner had the right to access existing records, the association had no legal duty to create a new one for him. The judge’s “Conclusions of Law” put it in unambiguous terms:
Petitioner does not have the right to a record that does not exist, i.e., a Membership Register containing email addresses. Further, there is no requirement in the above provisions that Respondent has an obligation to create such a document.
This is a counter-intuitive but crucial distinction. Many people assume that if an organization possesses individual pieces of data (like names in one file and emails in another), they are obligated to compile that data into the format you request. This ruling clarifies that the legal obligation is to provide access to records as they are currently maintained, not to perform data-compilation tasks on demand. For association boards, this is a critical clarification of their duties; for homeowners, it’s a lesson in the power of a precise request.
2. Takeaway #2: The legal definition of “personal records” can be surprisingly ambiguous.
The central argument between the two parties revolved around privacy. Mr. Tomisak requested the email list citing an Arizona statute (A.R.S. § 33-1258) that grants members access to association records. In response, Ms. Troy denied the request by citing a specific exemption in that same law—A.R.S. § 33-1258(B)(4)—which allows an association to withhold “personal… records of an individual member.” Ms. Troy believed email addresses fell under this category; Mr. Tomisak argued they did not.
Crucially, Mr. Tomisak acknowledged during the hearing that he already had access to the mailing addresses for all units. His demand was not about the fundamental ability to communicate with his neighbors, but about the specific method. This reframes the dispute away from pure access-to-information and toward convenience and the definition of privacy.
However, when it came time to define “personal records,” both sides faltered. The petitioner cited “the internet” and “California case law” as his authority—a common mistake litigants make, as vague or non-binding sources hold little weight with a judge focused on specific state statutes. The judge noted that “Neither party cited to any relevant or persuasive legal authority to establish the definition of ‘personal records’ as referenced in the relevant statute.” This failure by both parties essentially forced the judge’s hand, allowing her to bypass the murky privacy debate and settle the case on the much clearer, indisputable fact that the requested record did not exist.
3. Takeaway #3: Even with clear rules, the burden of proof is always on the person making the claim.
On paper, the rules seemed to be in the petitioner’s favor. Section 11.4.8 of the community’s CC&Rs, Section 10.3 of its Bylaws, and the state statute A.R.S. § 33-1258 all grant members the right to inspect association records. So why did he lose?
The answer lies in the legal concept of the “burden of proof.” According to the hearing decision, the petitioner “bears the burden of proof to establish that Respondent violated applicable statutes, CC&Rs, and/or Bylaws by a preponderance of the evidence.”
“Preponderance of the evidence” simply means evidence that is more convincing and more likely true than not. In this case, because the petitioner could not prove that the specific document he wanted—a Membership Register containing emails—actually existed, he failed to meet this burden. He could not convince the judge that the association had violated its duties because the duty he claimed they violated (providing a non-existent record) was not one they actually had. This serves as a practical lesson for any homeowner: having a right on paper is not enough; you must be able to prove that the specific right was violated with convincing evidence.
Conclusion: A Lesson in Specificity
The case of Tomisak vs. Arrowhead Lakes Condominium Association is a masterclass in how legal rights and obligations are often more specific and literal than we assume. The final decision wasn’t based on broad principles of privacy versus access, but on the simple, verifiable fact that a non-existent document cannot be produced.
The judge’s final order was to dismiss the petition, requiring no action from the condo association. This case forces every resident and board member to ask a crucial question: Are you fighting over a principle, or are you making a specific request for a real, existing document? In the eyes of the law, only one of those will win you the day.
Case Participants
Petitioner Side
Robert Tomisak(petitioner) Appeared on his own behalf; also testified
Respondent Side
Terri Troy(property manager) Arrowhead Lakes Condominium Association / AS&A Property Management, Inc. Appeared and testified on behalf of Respondent
Neutral Parties
Sondra J. Vanella(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to meet the burden of proof that the Condominium Association violated its governing documents or state statute regarding record inspection, specifically because the Association did not possess and was not required to create a Membership Register containing unit owners' email addresses.
Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent violated the provisions of CC&Rs Section 11.4.8, Bylaws Section 10.3, or A.R.S. § 33-1158 (or § 33-1258) because the requested record (a Membership Register containing email addresses) did not exist, and the Association was not obligated to create it.
Key Issues & Findings
Refusal to provide access to the membership register (Owner Roster with emails)
Petitioner alleged the Respondent violated governing documents and statute by refusing access to the membership register containing email addresses. Respondent argued email addresses were protected 'personal records' under A.R.S. § 33-1258(B)(4). The ALJ found the Petitioner failed to prove a violation because the requested document (a Membership Register containing emails) did not exist, and Respondent had no obligation to create it.
Orders: The petition is dismissed and no action is required of Respondent.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1258
CC&Rs 11.4.8
Bylaws 10.3
Analytics Highlights
Topics: records inspection, membership roster, email addresses, HOA records, condominium association, A.R.S. 33-1258
Additional Citations:
A.R.S. § 32-2199.01
A.R.S. § 33-1258
A.R.S. § 33-1258(B)(4)
A.R.S. § 33-1158
CC&Rs 11.4.8
Bylaws 10.3
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.R.S. §32-2199.02(B)
A.R.S. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
20F-H2020055-REL Decision – 807817.pdf
Uploaded 2026-01-23T17:32:44 (107.3 KB)
Briefing Doc – 20F-H2020055-REL
Administrative Hearing Briefing: Tomisak v. Arrowhead Lakes Condominium Association
Executive Summary
This briefing document outlines the findings and decision in the case of Robert Tomisak versus the Arrowhead Lakes Condominium Association (Case No. 20F-H2020055-REL), heard in the Office of Administrative Hearings. The petitioner, Mr. Tomisak, alleged that the Association violated its governing documents and Arizona state law by refusing his request for an owner roster that included member email addresses. The Association countered that email addresses constitute protected personal information and, more critically, that a membership register containing such information no longer exists.
The Administrative Law Judge ultimately dismissed the petition. The decision did not hinge on whether email addresses are “personal records” under the law. Instead, the ruling was based on the factual determination that the Association cannot be compelled to produce a document that it does not maintain. Since the Association had ceased including email addresses in its Membership Register in 2018, the judge concluded that the petitioner had no right to a non-existent record and had failed to meet the burden of proof required to show a violation.
I. Case Overview
Case Name
Robert Tomisak v. Arrowhead Lakes Condominium Association
Case Number
20F-H2020055-REL
Office of Administrative Hearings
Administrative Law Judge
Sondra J. Vanella
Petitioner
Robert Tomisak, Owner of Unit 1902 (Appeared on his own behalf)
Respondent
Arrowhead Lakes Condominium Association (Represented by Property Manager Terri Troy)
Hearing Date
July 9, 2020
Decision Date
July 17, 2020
II. Petitioner’s Allegations
On April 15, 2020, Robert Tomisak filed a single-issue petition alleging that the Arrowhead Lakes Condominium Association had violated its own governing documents and Arizona state law. The core of the complaint was the Association’s refusal to fulfill his March 11, 2020, email request “to provide access to the membership register” containing owner email addresses.
Mr. Tomisak specifically cited violations of the following provisions:
• Covenants, Conditions, and Restrictions (CC&Rs): Article 11, Section 4.8
• Bylaws: Article 10.3
• Arizona Revised Statutes (A.R.S.): § 33-1258
III. Respondent’s Position and Defense
The Association, through its property management company AS&A Property Management, Inc., and represented by Property Manager Terri Troy, denied all allegations. The defense rested on two key arguments:
1. Privacy Exemption: The Association contended that members’ email addresses are “personal records” and therefore exempt from disclosure under A.R.S. § 33-1258(B)(4), which protects the “personal, health or financial records of an individual member.”
2. Non-Existence of the Record: Ms. Troy testified that while the Association would readily provide the official Membership Register (containing names and addresses), this document no longer includes email addresses. This practice of excluding emails from the register began in 2018.
IV. Key Evidence and Testimony
The March 11, 2020 Email Exchange
The dispute originated with a direct email exchange between the petitioner and the property manager.
• Petitioner’s Request (7:33 a.m.): Mr. Tomisak sent an email with the subject line “Owner Roster” stating:
• Respondent’s Denial (8:23 a.m.): Ms. Troy responded with a direct refusal, citing the statutory exemption for personal information:
Hearing Testimony
During the July 9, 2020 hearing, both parties presented their arguments:
• Robert Tomisak (Petitioner): Acknowledged that he already had access to member mailing addresses but specifically required their email addresses. He argued that email addresses are not “personal information” and cited “the internet” and “California case law” as authority for this position.
• Terri Troy (Respondent): Reiterated the Association’s willingness to provide the existing Membership Register, which contains names, addresses, and unit numbers. She explained that email addresses had been removed from this register starting in 2018 and that her refusal was based on the belief that emails are protected “personal records” under A.R.S. § 33-1258(B)(4).
The Administrative Law Judge noted that neither party cited “any relevant or persuasive legal authority” to formally define “personal records” as used in the statute.
V. Legal Framework and Governing Documents
The case centered on the interpretation of three key provisions granting members access to Association records.
Document
Section
Key Provision
11.4.8
“The Association shall make available to Owners… current copies of the Declaration, Articles, Bylaws, rules of the Association and the books, records, and financial statements of the Association.”
Bylaws
“The membership register… shall be made available for inspection and copying by Members of the Association… for a purpose reasonably related to their interests as Members…”
A.R.S.
§ 33-1258(A)
“all financial and other records of the association shall be made reasonably available for examination by any member…”
A.R.S.
§ 33-1258(B)(4)
“Books and records… may be withheld from disclosure to the extent that the portion withheld relates to… Personal, health or financial records of an individual member of the association…”
VI. Administrative Law Judge’s Findings and Order
Burden of Proof
The judge established that the petitioner, Mr. Tomisak, bore the burden of proof to demonstrate by a “preponderance of the evidence” that the Association had committed the alleged violations. A preponderance of evidence is defined as that which is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”
Central Conclusion
The judge’s ruling was not based on the privacy argument regarding whether email addresses are “personal records.” Instead, the decision was grounded in a more fundamental point of fact regarding the existence of the requested document. The judge’s decisive conclusion of law stated:
While Petitioner has the right to enforce the requirements of the above provisions, Petitioner does not have the right to a record that does not exist, i.e., a Membership Register containing email addresses. Further, there is no requirement in the above provisions that Respondent has an obligation to create such a document.
Final Ruling
Based on this central finding, the judge held that Mr. Tomisak failed to meet his burden of proof and did not establish that the Association had violated its CC&Rs, its Bylaws, or A.R.S. § 33-1158.
IT IS ORDERED that no action is required of Respondent in this matter and that the petition is dismissed. The order is binding unless a rehearing is requested within 30 days of its service.
Study Guide – 20F-H2020055-REL
Study Guide: Tomisak v. Arrowhead Lakes Condominium Association
This study guide provides a review of the administrative hearing decision in case number 20F-H2020055-REL, involving Petitioner Robert Tomisak and Respondent Arrowhead Lakes Condominium Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to test and deepen understanding of the case.
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Short-Answer Quiz
Instructions: Answer the following ten questions in 2-3 complete sentences, based entirely on the information provided in the case document.
1. Who were the petitioner and the respondent in this case, and what was their established relationship?
2. What specific document and data did the petitioner request from the respondent in his email dated March 11, 2020?
3. On what legal grounds did the respondent deny the petitioner’s request? Cite the specific statutory provision they referenced.
4. Identify the three governing documents or statutes that the petitioner alleged the respondent had violated.
5. What information was the respondent, through its property manager Terri Troy, willing to provide to the petitioner?
6. What was the central reason cited by the Administrative Law Judge in the “Conclusions of Law” for dismissing the petition?
7. Define the “preponderance of the evidence” standard and identify which party had the burden of meeting this standard.
8. What authority did the petitioner cite during the hearing to support his argument that email addresses do not constitute “personal information”?
9. According to Property Manager Terri Troy’s testimony, when and why did the content of the Membership Register change?
10. What was the final order issued by the Administrative Law Judge on July 17, 2020?
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Answer Key
1. The petitioner was Robert Tomisak, who owns condominium unit 1902 in the Arrowhead Lakes development. The respondent was the Arrowhead Lakes Condominium Association, of which the petitioner is a member.
2. The petitioner requested an electronic copy of the “Owner’s Roster with emails.” He specifically wanted a membership list that included the email addresses of the other condominium owners.
3. The respondent denied the request based on A.R.S. § 33-1258(B)(4). They argued that this provision allows an association to withhold the “personal records of an individual member,” and they considered email addresses to fall under this category.
4. The petitioner alleged the respondent violated its Covenants, Conditions, and Restrictions (CC&Rs) Article 11, Section 4.8; its Bylaws, Article 10.3; and Arizona Revised Statute (A.R.S.) § 33-1258.
5. The respondent was willing to provide the Membership Register, which included the names, unit numbers, and mailing addresses of the members. However, this register did not contain email addresses.
6. The judge dismissed the petition because the petitioner did not have the right to a record that does not exist—namely, a Membership Register containing email addresses. The judge concluded there was no requirement in the governing provisions for the respondent to create such a document.
7. A “preponderance of the evidence” is the standard of proof requiring the trier of fact to be convinced that a contention is more probably true than not. The petitioner, Robert Tomisak, bore the burden of establishing his claim by this standard.
8. During the hearing, the petitioner cited “the internet” and “California case law” as his authority for the proposition that email addresses were not considered personal information.
9. Terri Troy testified that the Membership Register previously contained email addresses but that this practice was stopped beginning in 2018. The change was made based on the association’s belief that email addresses were the “personal records” of the owners.
10. The final order stated that no action was required of the respondent and that the petition was dismissed.
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Essay Questions
Instructions: The following questions are designed for a longer, essay-style response. Use the case document to formulate a detailed and well-supported argument.
1. Analyze the central legal conflict in this case. Discuss the petitioner’s interpretation of a member’s right to access records under the CC&Rs, Bylaws, and A.R.S. § 33-1258 versus the respondent’s interpretation, focusing on the exemption for “personal records.”
2. Evaluate the evidence presented by both the petitioner and the respondent during the July 9, 2020 hearing. Explain why the judge ultimately found that the petitioner failed to meet the “preponderance of the evidence” standard.
3. The judge’s decision rested heavily on the finding that the respondent was not obligated to create a document that did not exist. Discuss the significance of this finding. How might the case outcome have differed if the Membership Register still actively contained member email addresses at the time of the request?
4. Discuss the concept of “burden of proof” as it applies to this administrative hearing. Explain why this burden fell upon the petitioner and how the failure to meet this evidentiary standard was a determinative factor in the dismissal of the petition.
5. Examine the roles and interaction of the governing documents (CC&Rs, Bylaws) and state law (A.R.S. § 33-1258) in this dispute. Which provisions offered the petitioner the right to inspect records, and which specific clause provided the strongest defense for the respondent?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official who presides over the evidentiary hearing at the Office of Administrative Hearings and issues a decision. In this case, Sondra J. Vanella.
A.R.S. § 33-1258
The Arizona Revised Statute that mandates associations make financial and other records “reasonably available” to members, while also providing exceptions for withholding certain information, such as “personal, health or financial records of an individual member.”
Association
The Arrowhead Lakes Condominium Association, a condominium unit owners’ association responsible for managing the Arrowhead Lakes development.
Bylaws
The rules governing the internal operations of the association. Section 10.3 is referenced, which grants members the right to inspect the “membership register” and other books and records.
Covenants, Conditions, and Restrictions. These are the primary governing legal documents for the condominium development. Section 11.4.8 is referenced, which requires the association to make its books and records available to owners.
Membership Register
A formal list of the members of the association. The respondent’s register included names and addresses with unit numbers but, as of 2018, no longer included email addresses.
Petitioner
The party who files a petition to initiate a legal proceeding. In this case, Robert Tomisak, a condominium owner and member of the association.
Preponderance of the Evidence
The standard of proof required in this administrative hearing. It is met when the evidence presented is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other,” making a contention more probably true than not.
Respondent
The party against whom a petition is filed. In this case, the Arrowhead Lakes Condominium Association.
Blog Post – 20F-H2020055-REL
He Sued His Condo Association for an Email List. The Judge’s Reason for Saying No Will Surprise You.
If you live in a condominium or a community governed by a homeowners’ association, you’ve likely wondered what official records you’re entitled to see. From financial statements to meeting minutes, these documents are the backbone of a transparent community. But what happens when the information you want isn’t in a format the association readily provides?
This was the central conflict for Robert Tomisak, a condominium owner in Glendale, Arizona. At 7:33 a.m. on March 11, 2020, he sent an email to his association requesting an electronic copy of the “Owner’s Roster with emails.” Less than an hour later, at 8:23 a.m., the property manager refused. Believing he was legally entitled to the list, Mr. Tomisak sued. When the case went before an administrative law judge, the final decision hinged on a simple but powerful distinction that most people would never see coming. This case reveals some surprising truths about our rights to information and how they are applied in the real world.
1. Takeaway #1: Your right is to inspectexistingrecords, not to have new ones created for you.
The core of the judge’s decision came down to a simple, factual matter. While Mr. Tomisak had a legal right to inspect association records, the specific document he requested—a Membership Register that included email addresses—did not actually exist.
According to testimony from property manager Terri Troy, the association was perfectly willing to provide the official Membership Register, which contained owner names and mailing addresses. However, she clarified that the association had stopped including email addresses in that specific record back in 2018. The judge found this fact to be decisive. While the petitioner had the right to access existing records, the association had no legal duty to create a new one for him. The judge’s “Conclusions of Law” put it in unambiguous terms:
Petitioner does not have the right to a record that does not exist, i.e., a Membership Register containing email addresses. Further, there is no requirement in the above provisions that Respondent has an obligation to create such a document.
This is a counter-intuitive but crucial distinction. Many people assume that if an organization possesses individual pieces of data (like names in one file and emails in another), they are obligated to compile that data into the format you request. This ruling clarifies that the legal obligation is to provide access to records as they are currently maintained, not to perform data-compilation tasks on demand. For association boards, this is a critical clarification of their duties; for homeowners, it’s a lesson in the power of a precise request.
2. Takeaway #2: The legal definition of “personal records” can be surprisingly ambiguous.
The central argument between the two parties revolved around privacy. Mr. Tomisak requested the email list citing an Arizona statute (A.R.S. § 33-1258) that grants members access to association records. In response, Ms. Troy denied the request by citing a specific exemption in that same law—A.R.S. § 33-1258(B)(4)—which allows an association to withhold “personal… records of an individual member.” Ms. Troy believed email addresses fell under this category; Mr. Tomisak argued they did not.
Crucially, Mr. Tomisak acknowledged during the hearing that he already had access to the mailing addresses for all units. His demand was not about the fundamental ability to communicate with his neighbors, but about the specific method. This reframes the dispute away from pure access-to-information and toward convenience and the definition of privacy.
However, when it came time to define “personal records,” both sides faltered. The petitioner cited “the internet” and “California case law” as his authority—a common mistake litigants make, as vague or non-binding sources hold little weight with a judge focused on specific state statutes. The judge noted that “Neither party cited to any relevant or persuasive legal authority to establish the definition of ‘personal records’ as referenced in the relevant statute.” This failure by both parties essentially forced the judge’s hand, allowing her to bypass the murky privacy debate and settle the case on the much clearer, indisputable fact that the requested record did not exist.
3. Takeaway #3: Even with clear rules, the burden of proof is always on the person making the claim.
On paper, the rules seemed to be in the petitioner’s favor. Section 11.4.8 of the community’s CC&Rs, Section 10.3 of its Bylaws, and the state statute A.R.S. § 33-1258 all grant members the right to inspect association records. So why did he lose?
The answer lies in the legal concept of the “burden of proof.” According to the hearing decision, the petitioner “bears the burden of proof to establish that Respondent violated applicable statutes, CC&Rs, and/or Bylaws by a preponderance of the evidence.”
“Preponderance of the evidence” simply means evidence that is more convincing and more likely true than not. In this case, because the petitioner could not prove that the specific document he wanted—a Membership Register containing emails—actually existed, he failed to meet this burden. He could not convince the judge that the association had violated its duties because the duty he claimed they violated (providing a non-existent record) was not one they actually had. This serves as a practical lesson for any homeowner: having a right on paper is not enough; you must be able to prove that the specific right was violated with convincing evidence.
Conclusion: A Lesson in Specificity
The case of Tomisak vs. Arrowhead Lakes Condominium Association is a masterclass in how legal rights and obligations are often more specific and literal than we assume. The final decision wasn’t based on broad principles of privacy versus access, but on the simple, verifiable fact that a non-existent document cannot be produced.
The judge’s final order was to dismiss the petition, requiring no action from the condo association. This case forces every resident and board member to ask a crucial question: Are you fighting over a principle, or are you making a specific request for a real, existing document? In the eyes of the law, only one of those will win you the day.
Case Participants
Petitioner Side
Robert Tomisak(petitioner) Appeared on his own behalf; also testified
Respondent Side
Terri Troy(property manager) Arrowhead Lakes Condominium Association / AS&A Property Management, Inc. Appeared and testified on behalf of Respondent
Neutral Parties
Sondra J. Vanella(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
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)
Decision Documents
20F-H2019026-REL Decision – 770924.pdf
Uploaded 2025-12-17T18:18:18 (153.6 KB)
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; Mark Sahl is used in some electronic transmissions
Charles Mitchell(board member/witness) Canyon Mesa Townhouse Association Current Director of the Board; testified as a witness in the original hearing
Arland Averell(board member/witness) Canyon Mesa Townhouse Association Served on the Board for twenty years; testified as a witness in the original hearing
Neutral Parties
Jenna Clark(ALJ) Office of Administrative Hearings
Judy Lowe(commissioner) ADRE Commissioner of the Arizona Department of Real Estate
DGardner(department contact) ADRE Electronic contact for ADRE transmissions
c. serrano(staff/clerk) OAH Staff noted on document transmission
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
loss
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 denied the Petitioner's claim (on rehearing) finding that the Canyon Mesa Townhouse 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 Board acted within its authority to maintain and manage Common Areas, and members' nonexclusive perpetual easement rights were not infringed.
Why this result: Petitioner failed to prove by a preponderance of the evidence that the Association violated Article III section 1 of the CC&Rs. The undisputed facts showed the Association had authority to paint the lines, access was maintained for all members, and one tennis court was always available for tennis use.
Key Issues & Findings
Whether Canyon Mesa Townhouse Association violated community documents CC&Rs Article III, sec. 1.
Petitioner alleged the Association violated CC&Rs Article III section 1 by painting pickleball lines on one tennis court, arguing this constituted an infringement or impediment of enjoyment rights for tennis players by restricting use of the Common Area easement.
Orders: The Administrative Law Judge concluded that Petitioner failed to sustain the burden of proof that the Association violated CC&Rs Article III section 1, and the petition was denied. The Association's governing documents authorized the Board to maintain and manage Common Areas, and Petitioner's easement rights were not violated.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 33-1243
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Analytics Highlights
Topics: HOA Governance, Common Area Use, Easement Rights, CC&Rs Interpretation, 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)
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).
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 – 20F-H2019026-REL-RHG
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.
Blog Post – 20F-H2019026-REL-RHG
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
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
loss
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)
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).
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 – 20F-H2019026-REL-RHG
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.
Blog Post – 20F-H2019026-REL-RHG
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
