Tag Archives: CC&R Violation

Jennie Bennett v. Catalina Del Rey Homeowners Association

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Case Summary

Case ID 20F-H2019002-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2020-02-26
Administrative Law Judge Antara Nath Rivera
Outcome none
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Jennie Bennett Counsel Maxwell Riddiough
Respondent Catalina Del Rey Homeowners Association Counsel Nathan Tennyson

Alleged Violations

CC&Rs Sections 12(c) and 12(h)(1)

Outcome Summary

The Petition was dismissed because the Petitioner failed to meet the burden of proof, as the backflow flap responsible for the sewage overflow was determined to be on the Petitioner’s private property (covered under CC&R Section 15) and not a common element area that the HOA was responsible for maintaining under CC&R Sections 12(c) or 12(h)(1).

Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent violated Sections 12(c) and 12(h)(1) of the CC&Rs.

Key Issues & Findings

The Petitioner alleges that Catalina Del Rey Homeowners Association violated community documents CC&Rs Sections 12(c) and 12(h)(1) in a single-issue petition.

Petitioner claimed the HOA (Respondent) violated CC&Rs 12(c) and 12(h)(1) by refusing to compensate her for repairs to a malfunctioning backflow flap after experiencing a sewage overflow. Respondent argued the backflow flap was located on Petitioner's private property and was her responsibility under CC&R Section 15, especially since the prior Sewer Maintenance Policy was rescinded before the incident.

Orders: Petitioner Jennie Bennett’s Petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • CC&Rs Section 12(c)
  • CC&Rs Section 12(h)(1)
  • CC&Rs Section 15

Analytics Highlights

Topics: HOA dispute, CC&R violation, maintenance responsibility, private property, sewer maintenance policy
Additional Citations:

  • A.R.S. § 32-2199 et seq.
  • ARIZ. REV. STAT. Section 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Audio Overview

Decision Documents

20F-H2019002-REL-RHG Decision – 771959.pdf

Uploaded 2025-10-08T07:09:48 (103.3 KB)





Briefing Doc – 20F-H2019002-REL-RHG


Briefing Document: Bennett v. Catalina Del Rey Homeowners Association

Executive Summary

This document outlines the findings and decision in the case of Jennie Bennett v. Catalina Del Rey Homeowners Association, heard by the Arizona Office of Administrative Hearings. The central dispute concerned liability for the repair of a malfunctioning backflow valve that caused a sewage overflow in the petitioner’s residence. The petitioner, Jennie Bennett, alleged the Homeowners Association (HOA) violated its Covenants, Conditions, and Restrictions (CC&Rs) by refusing to cover the repair costs.

The Administrative Law Judge dismissed the petition, ruling in favor of the HOA. The decision hinged on the physical location of the backflow valve. Evidence, including a plat map and photographs, established that the valve was situated on Ms. Bennett’s private property, not in a common area. Consequently, under Section 15 of the CC&Rs, maintenance and repair were deemed the homeowner’s responsibility.

A key factor in the dispute was the HOA’s rescission of a “Sewer Maintenance Policy” just 18 days before the incident. This policy had previously obligated the HOA to share repair costs. However, the Judge found that once the policy was rescinded, the HOA was no longer bound by its terms. The petitioner failed to meet the burden of proof to demonstrate that the backflow valve was a common element covered by the CC&Rs, leading to the dismissal of her case.

Case Background

• Case Number: 20F-H2019002-REL-RHG

• Hearing Date: February 7, 2020

• Decision Date: February 26, 2020

• Presiding Judge: Administrative Law Judge Antara Nath Rivera

Parties Involved

Name / Organization

Representation

Petitioner

Jennie Bennett

Maxwell Riddiough, attorney

Respondent

Catalina Del Rey Homeowners Association

Nathan Tennyson, attorney (Brown|Olcott, PLLC)

Management

Cadden Community Management

(Managed Respondent)

Witness

Vanessa Lubinsky

Community Manager for Respondent

Allegation

On July 10, 2019, Jennie Bennett filed a petition alleging that the Catalina Del Rey Homeowners Association violated Sections 12(c) and 12(h)(1) of the community’s CC&Rs. These sections pertain to the HOA’s responsibility to maintain common elements, including sewer lines.

Timeline of Key Events

March 2017

The HOA adopts a “Sewer Maintenance Policy” outlining the process for sewage maintenance issues.

February 13, 2019

The HOA Board rescinds the Sewer Maintenance Policy after receiving legal guidance.

March 3, 2019

Petitioner Jennie Bennett experiences a sewage overflow caused by a malfunctioning backflow valve.

March – May 2019

Petitioner presents a repair estimate to the HOA Board, which does not address her concerns at the March, April, or May meetings.

May 22, 2019

The HOA responds to the Petitioner, but only after receiving a letter from her attorney.

July 10, 2019

Petitioner files a formal dispute petition with the Arizona Department of Real Estate.

Undated

Petitioner gathers 97 signatures on a grassroots petition asking the HOA to cover the repair costs due to the lack of notice.

February 7, 2020

The administrative hearing is held.

February 26, 2020

The Administrative Law Judge issues a decision dismissing the petition.

Central Arguments and Evidence

The case centered on whether the backflow valve was a common element maintained by the HOA or a fixture on private property maintained by the homeowner.

Petitioner’s Position (Jennie Bennett)

• Core Claim: The HOA was responsible for the repair cost based on its previous Sewer Maintenance Policy.

• Lack of Notification: The Petitioner testified that she was not notified that the policy had been rescinded on February 13, 2019, just two weeks before her sewage backup.

• HOA Inaction: The HOA failed to address her requests for reimbursement at three consecutive board meetings, only responding after her attorney sent a formal letter.

• Community Support: The Petitioner submitted a grassroots petition signed by 97 residents. The petition stated: “My shower backed up with feces March 3-my plumber said my flap on the back flow was gone-needed to be replace… I was told by Daniel at Cadden that the Board had rescinded the sewer policy Feb 13th-No written notice had gone out. I am asking to be covered because of the 2 week time frame and no notice.”

• Fear of Recurrence: Though no further overflows occurred, the Petitioner stated she “lived in fear of a future overflow.”

Respondent’s Position (Catalina Del Rey HOA)

• Core Claim: The backflow valve is located on the Petitioner’s private property and is therefore her responsibility under Section 15 of the CC&Rs.

• Physical Evidence: The HOA presented a plat map and photographs showing the backflow valve was located within the Petitioner’s property lines, “next to Petitioner’s walk up to her front door,” and not on common elements.

• Legal Justification for Policy Change: The HOA explained that the Sewer Maintenance Policy was rescinded after receiving legal guidance that it conflicted with the CC&Rs. The guidance clarified that backflow flaps are within individual homeowner units, making them a homeowner’s responsibility under Section 15.

• Procedural Correctness: HOA manager Vanessa Lubinsky testified that the rescission was a policy change, not a CC&R amendment, and therefore did not require a homeowner vote. She stated that notice of the rescission was sent to homeowners via both email and postal mail (postcards).

• Issue Classification: Ms. Lubinsky characterized the problem as a “plumbing issue, not a sewer issue, because it was located on Petitioner’s private property.”

Analysis of Governing Documents (CC&Rs)

The judge’s decision rested on the interpretation of three key sections of the Declaration of Covenants, Conditions, Restrictions and Easements.

• Section 12(c): HOA Maintenance of Common Areas

◦ This section establishes the HOA’s duty to maintain common sewer lines.

• Section 12(h)(1): Assessments for Common Elements

◦ This section empowers the HOA to charge homeowners for the maintenance of common elements, including sewers.

• Section 15: Homeowner Utility Maintenance

◦ This section was pivotal, assigning responsibility for fixtures on private property to the homeowner.

Administrative Law Judge’s Decision and Rationale

The Administrative Law Judge ultimately found that the Petitioner failed to prove her case by a “preponderance of the evidence.”

Key Findings

1. Burden of Proof: The Petitioner, Jennie Bennett, bore the burden of proving that the HOA had violated the community documents.

2. Location is Determinative: The evidence presented, particularly the photos and plat map, conclusively showed that the malfunctioning backflow flap was located on the Petitioner’s private property and not in a common area.

3. Policy Rescission was Valid: The Judge acknowledged the timing of the policy change was “extremely unfortunate” for the Petitioner. However, once the Sewer Maintenance Policy was rescinded, the HOA was no longer obligated to share repair costs. The CC&Rs became the sole governing authority on the matter.

4. No Violation of CC&Rs: Because the flap was not a common element, the HOA’s refusal to pay for the repair did not constitute a violation of Sections 12(c) or 12(h)(1). The responsibility fell to the homeowner under Section 15.

Final Order

“IT IS ORDERED that Petitioner Jennie Bennett’s Petition be dismissed.”

The decision is binding on the parties. Any appeal must be filed with the superior court within 35 days from the date the order was served.


John W. Gray vs. Mesa Coronado III Condominium Association

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Case Summary

Case ID 19F-H1918004-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-11-30
Administrative Law Judge Kay Abramsohn
Outcome win
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John W. Gray Counsel —
Respondent Mesa Coronado III Condominium Association Counsel Austin Baillio, Esq.

Alleged Violations

A.R.S. § 33-1258

Outcome Summary

The Petitioner was deemed the prevailing party regarding the Respondent's violations of the CC&Rs and rules concerning parking enforcement. The Respondent was ordered to refund the Petitioner's $500.00 filing fee.

Key Issues & Findings

Failure to enforce parking rules (vehicle limits, garage use, inoperable vehicles)

Petitioner alleged that the HOA refused to enforce parking rules regarding vehicle limits, requiring use of garages for first cars, and banning inoperable or commercial vehicles, despite written complaints. The ALJ found the HOA failed to enforce these rules or issue proper notices/fines.

Orders: MCIII ordered to pay Petitioner his filing fee of $500.00 within thirty days of the Order.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1258
  • MCIII Rules and Regulations #2 and #3
  • MCIII CC&Rs 4.12
  • MCIII CC&Rs 4.13
  • MCIII CC&Rs 4.14

Analytics Highlights

Topics: HOA Enforcement, Parking Rules, Filing Fee Refund, Inoperable Vehicle, CC&R Violation
Additional Citations:

  • A.R.S. § 33-1258
  • A.R.S. § 32-2199(1)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. §32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09

Audio Overview

Decision Documents

19F-H1918004-REL Decision – 674057.pdf

Uploaded 2025-10-09T03:33:18 (139.6 KB)





Briefing Doc – 19F-H1918004-REL


Briefing Document: Gray v. Mesa Coronado III Condominium Association (Case No. 19F-H1918004-REL)

Executive Summary

This document provides a comprehensive analysis of the Administrative Law Judge Decision in the case of John W. Gray (Petitioner) versus the Mesa Coronado III Condominium Association (MCIII, Respondent). The central issue was MCIII’s failure to enforce its own Covenants, Conditions, and Restrictions (CC&Rs) and community rules regarding vehicle parking.

The Petitioner, Mr. Gray, presented credible and convincing evidence of widespread, ongoing parking violations by multiple residents, including exceeding vehicle limits, failing to use garages for primary parking, and the long-term storage of an inoperable vehicle in a common area parking space. The Respondent, MCIII, argued that the rules were difficult to enforce and that it had taken some action, including revising the rules shortly before the hearing.

The Administrative Law Judge (ALJ) ultimately rejected MCIII’s defense, concluding that the association had demonstrably failed to enforce its governing documents. The ALJ found that MCIII had viable enforcement options, such as issuing notices and fines, which it did not utilize. The final order deemed the Petitioner the prevailing party and required MCIII to reimburse his $500 filing fee.

Case Overview

• Parties Involved:

◦ Petitioner: John W. Gray, owner of Unit 122 in the Mesa Coronado III Condominium development.

◦ Respondent: Mesa Coronado III Condominium Association (MCIII), the unit owners’ association for the 33-unit development.

• Adjudicating Body: The Office of Administrative Hearings, following a referral from the Arizona Department of Real Estate.

• Hearing Date: October 29, 2018.

• Decision Date: November 30, 2018.

• Core Allegation: The Petitioner alleged that MCIII violated its own Rules, Regulations, and CC&Rs (specifically Articles 4.12, 4.13, and 4.14) by refusing to enforce parking rules despite receiving written complaints.

Background and Timeline of the Dispute

The conflict centered on parking within the MCIII development, which has 36 parking spaces for 33 units, with spaces being “open” and not assigned to specific units (with one exception).

• Pre-existing Rules (Adopted Jan. 2002):

◦ Owners were limited to two cars per unit.

◦ The garage was considered the “assigned” parking for the first car.

◦ Inoperable vehicles were banned from the property.

◦ A system of warnings and fines was in place for rule violations.

• May 17, 2018: Petitioner Gray submitted a formal written complaint to MCIII, identifying at least eight units in violation of parking rules. His complaint specified:

◦ Units with three cars were not using their garages for parking, instead using them for storage.

◦ An inoperable red truck had been stationary in the same parking spot for over a year.

◦ A commercial truck was present containing what he believed to be hazardous pool chemicals.

• MCIII’s Initial Response: The association acknowledged a “history” with the parking situation and stated the Board would review the rules for revision. MCIII noted it would investigate the red truck and also accused the Petitioner of regularly parking his own truck in a fire lane.

• July 16, 2018: The Petitioner sent a follow-up notification regarding the continuing violations.

• MCIII’s Second Response: The association informed the Petitioner that the issue would be on the agenda for the July 24, 2018 Board meeting and again reminded him of his own alleged fire lane parking violations.

• July 23, 2018: MCIII sent a notice to the owner of the unit associated with the inoperable red truck, informing them of the rules violation.

• July 30, 2018: The Petitioner filed his formal petition with the Arizona Department of Real Estate.

• October 23, 2018: Days before the hearing, the MCIII Board adopted new parking rules.

Petitioner’s Case and Evidence (John W. Gray)

The Petitioner built a detailed case demonstrating a pattern of non-enforcement by MCIII. The ALJ found his evidence to be “credible and convincing.”

• Specific Violations Alleged:

◦ Excess Vehicles: Multiple units possessed more than the two-vehicle limit.

◦ Garage Misuse: Residents with multiple cars were using common area parking spaces while their garages were used for storage.

◦ Inoperable Vehicle: A red truck remained parked and inoperable in one space for over a year, in direct violation of CC&R 4.14.

• Evidence Presented at Hearing:

◦ Photographs: A series of exhibits (6 through 16) contained photographs documenting the various offending vehicles.

◦ Private Investigation: The Petitioner hired a private investigator to obtain vehicle registration information to link specific vehicles to their owners and units (Exhibit 17).

◦ Quantitative Analysis: The Petitioner calculated that just 12 units were occupying 27 common area parking spaces, leaving very few spaces for the remaining 21 units.

◦ Written Correspondence: Copies of his complaints to MCIII were submitted, demonstrating that the association was put on notice of the violations.

Respondent’s Defense and Actions (MCIII)

The association’s defense centered on the difficulty of enforcement and subsequent actions taken after the Petitioner’s complaint.

• Core Arguments:

◦ Unenforceability: MCIII asserted that it was “almost impossible” to enforce the existing restrictive rules, as it would require constant 24/7 monitoring.

◦ Lack of Prior Complaints: The Respondent claimed it had received no complaints about parking prior to Mr. Gray’s.

◦ Issue is Moot: MCIII argued that its recent revision of the parking rules rendered the Petitioner’s complaint moot.

• Actions Taken by MCIII:

◦ Rule Revision: At the October 23, 2018 Board meeting, MCIII adopted new rules that eliminated the two-car limit but maintained the requirement for residents to use their garage first before occupying common area spaces. The ban on inoperable and commercial vehicles was also kept.

◦ Enforcement Against Petitioner: The Respondent noted that it had previously taken enforcement action by having the Petitioner’s own truck towed for parking in a fire lane.

◦ Notice Regarding Red Truck: MCIII provided evidence that it sent one letter on July 23, 2018, regarding the inoperable red truck.

◦ Towing Contract: The association stated it had recently contracted with Shaffer Towing for towing services.

◦ Community Manager Patrols: The “Community Manager,” Andrea Lacombe, testified that she drove through the property approximately twice a month looking for violations.

Governing Rules and CC&Rs

The decision rested on the specific language of the association’s governing documents in effect at the time of the complaint.

Document

Article/Rule

Provision

Rules & Regulations (Jan 2002)

Rule 3

Limits owners to two cars per unit and “assigns” the garage as parking for the first car.

CC&Rs (Jan 1999)

Art. 4.12

Prohibits the parking of commercial vehicles, RVs, boats, trailers, etc., on any part of the condominium outside of an enclosed garage.

CC&Rs (Jan 1999)

Art. 4.13

States that no parking space may be used for storage or any purpose other than parking of Family Vehicles. Grants the Board the right to assign spaces.

CC&Rs (Jan 1999)

Art. 4.14

Prohibits the storage of inoperable vehicles on any portion of the condominium other than within enclosed garages. Grants the Board the right to have violating vehicles towed.

Administrative Law Judge’s Decision and Rationale

The ALJ sided with the Petitioner, finding that MCIII had failed in its duty to enforce its own rules.

• Rejection of MCIII’s Defense: The ALJ determined that MCIII’s argument that the rules were unenforceable was “not a viable defense.” The decision explicitly stated that the association could have used provisions for notification and fines to enforce the rules but failed to do so.

• Evidence of Non-Enforcement: The hearing record demonstrated a clear failure by MCIII to act.

◦ The evidence was “undisputed” that the inoperable red truck had been in violation for over a year, yet MCIII only sent a single notice long after the complaint was filed.

◦ The ALJ noted that clearing even that one space would have improved the “tenuous parking situation.”

◦ The record contained no indication that MCIII had ever enforced the rules regarding the number of vehicles or the mandatory use of garages for primary parking.

◦ The only enforcement action cited, other than the single letter, was the towing of the Petitioner’s own vehicle.

• Conclusion of Law: Based on the evidence, the ALJ concluded that “MCIII failed to enforce CC&Rs and rules and regulations regarding parking.” The revision of the rules just before the hearing did not negate the past failure to enforce the rules that were in effect at the time of the Petitioner’s complaint.

Final Order

Based on the findings of fact and conclusions of law, the Administrative Law Judge issued a binding order with two key provisions:

1. Prevailing Party: The Petitioner, John W. Gray, is officially deemed the prevailing party in the matter.

2. Reimbursement: MCIII is ordered to pay the Petitioner his filing fee of $500.00 within thirty (30) days of the order.


John W. Gray vs. Mesa Coronado III Condominium Association

Posted on by

Case Summary

Case ID 19F-H1918004-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-11-30
Administrative Law Judge Kay Abramsohn
Outcome win
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John W. Gray Counsel —
Respondent Mesa Coronado III Condominium Association Counsel Austin Baillio, Esq.

Alleged Violations

A.R.S. § 33-1258

Outcome Summary

The Petitioner was deemed the prevailing party regarding the Respondent's violations of the CC&Rs and rules concerning parking enforcement. The Respondent was ordered to refund the Petitioner's $500.00 filing fee.

Key Issues & Findings

Failure to enforce parking rules (vehicle limits, garage use, inoperable vehicles)

Petitioner alleged that the HOA refused to enforce parking rules regarding vehicle limits, requiring use of garages for first cars, and banning inoperable or commercial vehicles, despite written complaints. The ALJ found the HOA failed to enforce these rules or issue proper notices/fines.

Orders: MCIII ordered to pay Petitioner his filing fee of $500.00 within thirty days of the Order.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1258
  • MCIII Rules and Regulations #2 and #3
  • MCIII CC&Rs 4.12
  • MCIII CC&Rs 4.13
  • MCIII CC&Rs 4.14

Analytics Highlights

Topics: HOA Enforcement, Parking Rules, Filing Fee Refund, Inoperable Vehicle, CC&R Violation
Additional Citations:

  • A.R.S. § 33-1258
  • A.R.S. § 32-2199(1)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. §32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09

Audio Overview

Decision Documents

19F-H1918004-REL Decision – 674057.pdf

Uploaded 2025-10-08T07:06:41 (139.6 KB)





Briefing Doc – 19F-H1918004-REL


Briefing Document: Gray v. Mesa Coronado III Condominium Association (Case No. 19F-H1918004-REL)

Executive Summary

This document provides a comprehensive analysis of the Administrative Law Judge Decision in the case of John W. Gray (Petitioner) versus the Mesa Coronado III Condominium Association (MCIII, Respondent). The central issue was MCIII’s failure to enforce its own Covenants, Conditions, and Restrictions (CC&Rs) and community rules regarding vehicle parking.

The Petitioner, Mr. Gray, presented credible and convincing evidence of widespread, ongoing parking violations by multiple residents, including exceeding vehicle limits, failing to use garages for primary parking, and the long-term storage of an inoperable vehicle in a common area parking space. The Respondent, MCIII, argued that the rules were difficult to enforce and that it had taken some action, including revising the rules shortly before the hearing.

The Administrative Law Judge (ALJ) ultimately rejected MCIII’s defense, concluding that the association had demonstrably failed to enforce its governing documents. The ALJ found that MCIII had viable enforcement options, such as issuing notices and fines, which it did not utilize. The final order deemed the Petitioner the prevailing party and required MCIII to reimburse his $500 filing fee.

Case Overview

• Parties Involved:

◦ Petitioner: John W. Gray, owner of Unit 122 in the Mesa Coronado III Condominium development.

◦ Respondent: Mesa Coronado III Condominium Association (MCIII), the unit owners’ association for the 33-unit development.

• Adjudicating Body: The Office of Administrative Hearings, following a referral from the Arizona Department of Real Estate.

• Hearing Date: October 29, 2018.

• Decision Date: November 30, 2018.

• Core Allegation: The Petitioner alleged that MCIII violated its own Rules, Regulations, and CC&Rs (specifically Articles 4.12, 4.13, and 4.14) by refusing to enforce parking rules despite receiving written complaints.

Background and Timeline of the Dispute

The conflict centered on parking within the MCIII development, which has 36 parking spaces for 33 units, with spaces being “open” and not assigned to specific units (with one exception).

• Pre-existing Rules (Adopted Jan. 2002):

◦ Owners were limited to two cars per unit.

◦ The garage was considered the “assigned” parking for the first car.

◦ Inoperable vehicles were banned from the property.

◦ A system of warnings and fines was in place for rule violations.

• May 17, 2018: Petitioner Gray submitted a formal written complaint to MCIII, identifying at least eight units in violation of parking rules. His complaint specified:

◦ Units with three cars were not using their garages for parking, instead using them for storage.

◦ An inoperable red truck had been stationary in the same parking spot for over a year.

◦ A commercial truck was present containing what he believed to be hazardous pool chemicals.

• MCIII’s Initial Response: The association acknowledged a “history” with the parking situation and stated the Board would review the rules for revision. MCIII noted it would investigate the red truck and also accused the Petitioner of regularly parking his own truck in a fire lane.

• July 16, 2018: The Petitioner sent a follow-up notification regarding the continuing violations.

• MCIII’s Second Response: The association informed the Petitioner that the issue would be on the agenda for the July 24, 2018 Board meeting and again reminded him of his own alleged fire lane parking violations.

• July 23, 2018: MCIII sent a notice to the owner of the unit associated with the inoperable red truck, informing them of the rules violation.

• July 30, 2018: The Petitioner filed his formal petition with the Arizona Department of Real Estate.

• October 23, 2018: Days before the hearing, the MCIII Board adopted new parking rules.

Petitioner’s Case and Evidence (John W. Gray)

The Petitioner built a detailed case demonstrating a pattern of non-enforcement by MCIII. The ALJ found his evidence to be “credible and convincing.”

• Specific Violations Alleged:

◦ Excess Vehicles: Multiple units possessed more than the two-vehicle limit.

◦ Garage Misuse: Residents with multiple cars were using common area parking spaces while their garages were used for storage.

◦ Inoperable Vehicle: A red truck remained parked and inoperable in one space for over a year, in direct violation of CC&R 4.14.

• Evidence Presented at Hearing:

◦ Photographs: A series of exhibits (6 through 16) contained photographs documenting the various offending vehicles.

◦ Private Investigation: The Petitioner hired a private investigator to obtain vehicle registration information to link specific vehicles to their owners and units (Exhibit 17).

◦ Quantitative Analysis: The Petitioner calculated that just 12 units were occupying 27 common area parking spaces, leaving very few spaces for the remaining 21 units.

◦ Written Correspondence: Copies of his complaints to MCIII were submitted, demonstrating that the association was put on notice of the violations.

Respondent’s Defense and Actions (MCIII)

The association’s defense centered on the difficulty of enforcement and subsequent actions taken after the Petitioner’s complaint.

• Core Arguments:

◦ Unenforceability: MCIII asserted that it was “almost impossible” to enforce the existing restrictive rules, as it would require constant 24/7 monitoring.

◦ Lack of Prior Complaints: The Respondent claimed it had received no complaints about parking prior to Mr. Gray’s.

◦ Issue is Moot: MCIII argued that its recent revision of the parking rules rendered the Petitioner’s complaint moot.

• Actions Taken by MCIII:

◦ Rule Revision: At the October 23, 2018 Board meeting, MCIII adopted new rules that eliminated the two-car limit but maintained the requirement for residents to use their garage first before occupying common area spaces. The ban on inoperable and commercial vehicles was also kept.

◦ Enforcement Against Petitioner: The Respondent noted that it had previously taken enforcement action by having the Petitioner’s own truck towed for parking in a fire lane.

◦ Notice Regarding Red Truck: MCIII provided evidence that it sent one letter on July 23, 2018, regarding the inoperable red truck.

◦ Towing Contract: The association stated it had recently contracted with Shaffer Towing for towing services.

◦ Community Manager Patrols: The “Community Manager,” Andrea Lacombe, testified that she drove through the property approximately twice a month looking for violations.

Governing Rules and CC&Rs

The decision rested on the specific language of the association’s governing documents in effect at the time of the complaint.

Document

Article/Rule

Provision

Rules & Regulations (Jan 2002)

Rule 3

Limits owners to two cars per unit and “assigns” the garage as parking for the first car.

CC&Rs (Jan 1999)

Art. 4.12

Prohibits the parking of commercial vehicles, RVs, boats, trailers, etc., on any part of the condominium outside of an enclosed garage.

CC&Rs (Jan 1999)

Art. 4.13

States that no parking space may be used for storage or any purpose other than parking of Family Vehicles. Grants the Board the right to assign spaces.

CC&Rs (Jan 1999)

Art. 4.14

Prohibits the storage of inoperable vehicles on any portion of the condominium other than within enclosed garages. Grants the Board the right to have violating vehicles towed.

Administrative Law Judge’s Decision and Rationale

The ALJ sided with the Petitioner, finding that MCIII had failed in its duty to enforce its own rules.

• Rejection of MCIII’s Defense: The ALJ determined that MCIII’s argument that the rules were unenforceable was “not a viable defense.” The decision explicitly stated that the association could have used provisions for notification and fines to enforce the rules but failed to do so.

• Evidence of Non-Enforcement: The hearing record demonstrated a clear failure by MCIII to act.

◦ The evidence was “undisputed” that the inoperable red truck had been in violation for over a year, yet MCIII only sent a single notice long after the complaint was filed.

◦ The ALJ noted that clearing even that one space would have improved the “tenuous parking situation.”

◦ The record contained no indication that MCIII had ever enforced the rules regarding the number of vehicles or the mandatory use of garages for primary parking.

◦ The only enforcement action cited, other than the single letter, was the towing of the Petitioner’s own vehicle.

• Conclusion of Law: Based on the evidence, the ALJ concluded that “MCIII failed to enforce CC&Rs and rules and regulations regarding parking.” The revision of the rules just before the hearing did not negate the past failure to enforce the rules that were in effect at the time of the Petitioner’s complaint.

Final Order

Based on the findings of fact and conclusions of law, the Administrative Law Judge issued a binding order with two key provisions:

1. Prevailing Party: The Petitioner, John W. Gray, is officially deemed the prevailing party in the matter.

2. Reimbursement: MCIII is ordered to pay the Petitioner his filing fee of $500.00 within thirty (30) days of the order.


Michael and Nancy Berent vs, Bell West Ranch Homeowners Association

Posted on by

Case Summary

Case ID 18F-H1818047-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-09-11
Administrative Law Judge Tammy L. Eigenheer
Outcome total_loss
Filing Fees Refunded $2,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Michael and Nancy Berent Counsel —
Respondent Bell West Ranch Homeowners Association Counsel Maria Kupillas

Alleged Violations

A.R.S. § 33-1803(B); CC&Rs Sections 8.02, 8.06, 6.02

Outcome Summary

The Petition was dismissed in its entirety because the Petitioners failed to establish by a preponderance of the evidence that the Bell West Ranch Homeowners Association violated the cited CC&Rs provisions (Sections 8.02, 8.06, 6.02) or A.R.S. § 33-1803(B).

Why this result: Petitioners failed to meet the burden of proof required to establish the alleged violations.

Key Issues & Findings

Alleged violations regarding failure to enforce city fire and municipal codes, failure to procure adequate insurance, and violations of specific CC&R provisions (8.02, 8.06, 6.02)

Petitioners alleged the HOA violated governing documents and statute by approving a neighbor's driveway extension which allegedly violated municipal codes and an easement, and by failing to maintain a properly constituted Architectural Committee. Petitioners failed to establish these violations by a preponderance of the evidence.

Orders: The Petition was dismissed in its entirety.

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

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1803(B)
  • CC&Rs Section 8.02
  • CC&Rs Section 8.06
  • CC&Rs Section 6.02

Analytics Highlights

Topics: HOA enforcement, CC&R violation, Architectural Committee, driveway extension, easement, municipal codes
Additional Citations:

  • A.R.S. § 33-1803(B)
  • A.R.S. § 41-2198.01
  • CC&Rs Section 8.02
  • CC&Rs Section 8.06
  • CC&Rs Section 6.02

Audio Overview

Decision Documents

18F-H1818047-REL Decision – 659285.pdf

Uploaded 2025-10-09T03:32:56 (142.7 KB)

18F-H1818047-REL Decision – 659287.pdf

Uploaded 2025-10-09T03:32:56 (193.9 KB)

18F-H1818047-REL Decision – 679550.pdf

Uploaded 2025-10-09T03:32:56 (133.6 KB)

18F-H1818047-REL Decision – 952813.pdf

Uploaded 2025-10-09T03:32:56 (42.6 KB)

18F-H1818047-REL Decision – 952828.pdf

Uploaded 2025-10-09T03:32:56 (30.5 KB)





Briefing Doc – 18F-H1818047-REL


Administrative Hearing Briefing: Berent v. Bell West Ranch Homeowners Association

Executive Summary

This document provides a comprehensive analysis of the administrative hearing decision in case number 18F-H1818047-REL, involving petitioners Michael and Nancy Berent and the respondent, Bell West Ranch Homeowners Association (HOA). The core of the dispute was the HOA’s 2015 approval of a driveway extension for the Berents’ neighbors, which the Berents alleged violated multiple HOA Covenants, Conditions, and Restrictions (CC&Rs) as well as Arizona state law.

On September 11, 2018, Administrative Law Judge (ALJ) Tammy L. Eigenheer issued a decision dismissing the Berents’ petition in its entirety. The judge concluded that the petitioners failed to meet their burden of proof—to establish their claims by a preponderance of the evidence—on all four of their central allegations. Specifically, the ALJ found no violation regarding the composition of the HOA’s Architectural Review Committee (ARC), the interpretation of CC&Rs concerning structures and easements, or the HOA’s discretionary authority to enforce its rules.

Notably, a subsequent “Minute Entry” filed on March 8, 2022, indicates that the Office of Administrative Hearings (OAH) had been receiving further documents from the petitioners years after the case was closed. The OAH clarified that it no longer had jurisdiction and would take no further action on the matter.

1. Case Overview

The dispute was adjudicated by the Arizona Office of Administrative Hearings after the petitioners filed a Homeowners Association Dispute Process Petition with the Arizona Department of Real Estate on April 26, 2018.

Case Detail

Information

Case Number

18F-H1818047-REL

Petitioners

Michael and Nancy Berent

Respondent

Bell West Ranch Homeowners Association

Office of Administrative Hearings (Phoenix, Arizona)

Tammy L. Eigenheer

Hearing Dates

August 15, 2018, and August 22, 2018

Decision Date

September 11, 2018

2. Central Allegations and Rulings

At the hearing, the petitioners’ claims were clarified into four distinct allegations of violation by the HOA. The ALJ ruled against the petitioners on every count, finding they failed to provide sufficient evidence.

2.1. Allegation 1: Violation of CC&R Section 6.02 (ARC Membership)

• Petitioner’s Claim: Ms. Berent argued that the Architectural Review Committee (ARC) was not properly composed of the required three members when it approved the neighbor’s driveway application. Her evidence consisted of Board of Directors meeting minutes from 2015 and 2016 that listed only a single individual (Ken Hawkins or Larry Bolton) as presenting the ARC report. She contended this proved the ARC had only one member at those times.

• Respondent’s Position: Regis Salazar of VISION Community Management testified that the ARC consisted of three members at all relevant times. She explained that the meeting minutes cited by the petitioner merely identified the individual presenting the committee’s report to the board, not the entire committee’s membership.

• ALJ’s Conclusion: No violation found. The petitioners failed to establish a violation. The respondent’s testimony provided a credible explanation for the format of the meeting minutes, which was the petitioners’ only evidence for this claim.

2.2. Allegation 2: Violation of CC&R Section 8.02 (Structures & Municipal Codes)

• Petitioner’s Claim: Ms. Berent testified that the ARC should not have approved the driveway application because it demonstrated a clear violation of City of Surprise municipal codes on its face, specifically asserting the 10-foot extension caused the driveway to exceed 50 percent of the front lot line. The CC&Rs require structures to comply with municipal regulations.

• Respondent’s Position: Ms. Salazar stated that the HOA places the responsibility on each homeowner to ensure their projects comply with all applicable municipal codes. The ARC does not independently verify compliance. The approval notice sent to the neighbor explicitly stated, “You also must follow all local building codes and setback requirements, if applicable.“

• ALJ’s Conclusion: No violation found. The petitioners failed to establish that the driveway qualified as a “structure” under the definition relevant to Section 8.02. Furthermore, the judge noted that even if it were considered a structure, the HOA did not have a duty or responsibility under this CC&R section to pre-emptively enforce municipal codes.

2.3. Allegation 3: Violation of CC&R Section 8.06 (Obstruction of Easements)

• Petitioner’s Claim: Ms. Berent testified that a fire hydrant located near the property line constituted a “public utility easement” and that the neighbor’s driveway extension was a structure placed upon it, interfering with its use in violation of the CC&Rs.

• Respondent’s Position: Ms. Salazar testified she was not aware of any public utility easement associated with the fire hydrant.

• ALJ’s Conclusion: No violation found. The petitioners failed on two points. First, they presented “no evidence to establish that the fire hydrant at issue constituted a public utility easement.” Second, even assuming it was an easement, they failed to prove the driveway obstructed it. This conclusion was decisively supported by Ms. Berent’s own testimony, in which she “acknowledged… that a residential fire occurred two houses away from her and the fire department had to use the fire hydrant… the fire hose was running across Neighbors’ driveway during that time.” This demonstrated the hydrant remained fully accessible and usable.

2.4. Allegation 4: Violation of A.R.S. § 33-1803(B) (Failure to Enforce)

• Petitioner’s Claim: Ms. Berent argued that “common sense” required the HOA to enforce its CC&Rs and penalize the neighbors for the violations, drawing a comparison to the HOA sending her notices for weeds in her yard.

• Respondent’s Position: The HOA argued that it chose not to pursue enforcement action against the neighbors because the City of Surprise, after issuing an initial Notice of Ordinance Violation, had itself “declined to pursue any further enforcement action.”

• ALJ’s Conclusion: No violation found. The judge pointed to the “plain language” of the statute, which states the board of directors may impose penalties, establishing this as a discretionary power, not a mandatory duty. Nothing in the statute required the HOA to take enforcement action. The HOA’s decision not to act, mirroring the city’s own lack of follow-up, was a valid exercise of its authority.

3. Key Chronology of Events

• July 7, 2015: The petitioners’ neighbors submit an “Application for Design Review” to install a 10-foot by 35-foot concrete driveway extension.

• July 15, 2015: The HOA’s Architectural Review Committee (ARC) approves the application.

• July 17, 2015: VISION Community Management sends an approval notice to the neighbors with conditions, including adherence to a 13-inch property line setback and all local building codes.

• August 2015: The neighbors begin construction. The petitioners email the HOA board to complain about the project, questioning city approval and raising concerns about a nearby fire hydrant.

• May 16, 2016: The City of Surprise issues a “Notice of Ordinance Violation” to the neighbors, stating a “driveway extension was added contrary to code requirements.”

• Post-May 2016: The City of Surprise takes no further enforcement action against the neighbors.

• April 26, 2018: The Berents file their HOA Dispute Petition.

• August 15 & 22, 2018: The administrative hearing is held.

• September 11, 2018: The ALJ issues the final decision, ordering that the petition be dismissed in its entirety.

• March 8, 2022: The ALJ issues a “Minute Entry – Document Reject,” noting that the OAH has no jurisdiction and will not consider further documents submitted by the petitioners.

4. Post-Decision Developments

On March 8, 2022, nearly three and a half years after the case was closed, ALJ Tammy L. Eigenheer issued a “Minute Entry – Document Reject.” This entry states:

“It is unclear why the Office of Administrative Hearings was sent these documents as the decision in this matter was issued on September 11, 2018, and the Office of Administrative Hearings has had no jurisdiction in this matter since that time.”

The entry advises the petitioners that no documents sent after the decision would be considered and that “no further response will be provided from the Office of Administrative Hearings” for any future filings.

5. Quoted Provisions and Statutes

The case revolved around the interpretation of the following sections of the Bell West Ranch Homeowners Association CC&Rs and Arizona Revised Statutes.

• CC&R Section 6.02 (Membership):

• CC&R Section 8.02 (Restrictions Apply to All Structures):

• CC&R Section 8.06 (No Obstruction of Easements):

• A.R.S. § 33-1803(B):


Michael and Nancy Berent vs, Bell West Ranch Homeowners Association

Posted on by

Case Summary

Case ID 18F-H1818047-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-09-11
Administrative Law Judge Tammy L. Eigenheer
Outcome total_loss
Filing Fees Refunded $2,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Michael and Nancy Berent Counsel —
Respondent Bell West Ranch Homeowners Association Counsel Maria Kupillas

Alleged Violations

A.R.S. § 33-1803(B); CC&Rs Sections 8.02, 8.06, 6.02

Outcome Summary

The Petition was dismissed in its entirety because the Petitioners failed to establish by a preponderance of the evidence that the Bell West Ranch Homeowners Association violated the cited CC&Rs provisions (Sections 8.02, 8.06, 6.02) or A.R.S. § 33-1803(B).

Why this result: Petitioners failed to meet the burden of proof required to establish the alleged violations.

Key Issues & Findings

Alleged violations regarding failure to enforce city fire and municipal codes, failure to procure adequate insurance, and violations of specific CC&R provisions (8.02, 8.06, 6.02)

Petitioners alleged the HOA violated governing documents and statute by approving a neighbor's driveway extension which allegedly violated municipal codes and an easement, and by failing to maintain a properly constituted Architectural Committee. Petitioners failed to establish these violations by a preponderance of the evidence.

Orders: The Petition was dismissed in its entirety.

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

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1803(B)
  • CC&Rs Section 8.02
  • CC&Rs Section 8.06
  • CC&Rs Section 6.02

Analytics Highlights

Topics: HOA enforcement, CC&R violation, Architectural Committee, driveway extension, easement, municipal codes
Additional Citations:

  • A.R.S. § 33-1803(B)
  • A.R.S. § 41-2198.01
  • CC&Rs Section 8.02
  • CC&Rs Section 8.06
  • CC&Rs Section 6.02

Audio Overview

Decision Documents

18F-H1818047-REL Decision – 659285.pdf

Uploaded 2025-10-08T07:05:46 (142.7 KB)

18F-H1818047-REL Decision – 659287.pdf

Uploaded 2025-10-08T07:05:47 (193.9 KB)

18F-H1818047-REL Decision – 679550.pdf

Uploaded 2025-10-08T07:05:47 (133.6 KB)

18F-H1818047-REL Decision – 952813.pdf

Uploaded 2025-10-08T07:05:47 (42.6 KB)

18F-H1818047-REL Decision – 952828.pdf

Uploaded 2025-10-08T07:05:48 (30.5 KB)





Briefing Doc – 18F-H1818047-REL


Administrative Hearing Briefing: Berent v. Bell West Ranch Homeowners Association

Executive Summary

This document provides a comprehensive analysis of the administrative hearing decision in case number 18F-H1818047-REL, involving petitioners Michael and Nancy Berent and the respondent, Bell West Ranch Homeowners Association (HOA). The core of the dispute was the HOA’s 2015 approval of a driveway extension for the Berents’ neighbors, which the Berents alleged violated multiple HOA Covenants, Conditions, and Restrictions (CC&Rs) as well as Arizona state law.

On September 11, 2018, Administrative Law Judge (ALJ) Tammy L. Eigenheer issued a decision dismissing the Berents’ petition in its entirety. The judge concluded that the petitioners failed to meet their burden of proof—to establish their claims by a preponderance of the evidence—on all four of their central allegations. Specifically, the ALJ found no violation regarding the composition of the HOA’s Architectural Review Committee (ARC), the interpretation of CC&Rs concerning structures and easements, or the HOA’s discretionary authority to enforce its rules.

Notably, a subsequent “Minute Entry” filed on March 8, 2022, indicates that the Office of Administrative Hearings (OAH) had been receiving further documents from the petitioners years after the case was closed. The OAH clarified that it no longer had jurisdiction and would take no further action on the matter.

1. Case Overview

The dispute was adjudicated by the Arizona Office of Administrative Hearings after the petitioners filed a Homeowners Association Dispute Process Petition with the Arizona Department of Real Estate on April 26, 2018.

Case Detail

Information

Case Number

18F-H1818047-REL

Petitioners

Michael and Nancy Berent

Respondent

Bell West Ranch Homeowners Association

Office of Administrative Hearings (Phoenix, Arizona)

Tammy L. Eigenheer

Hearing Dates

August 15, 2018, and August 22, 2018

Decision Date

September 11, 2018

2. Central Allegations and Rulings

At the hearing, the petitioners’ claims were clarified into four distinct allegations of violation by the HOA. The ALJ ruled against the petitioners on every count, finding they failed to provide sufficient evidence.

2.1. Allegation 1: Violation of CC&R Section 6.02 (ARC Membership)

• Petitioner’s Claim: Ms. Berent argued that the Architectural Review Committee (ARC) was not properly composed of the required three members when it approved the neighbor’s driveway application. Her evidence consisted of Board of Directors meeting minutes from 2015 and 2016 that listed only a single individual (Ken Hawkins or Larry Bolton) as presenting the ARC report. She contended this proved the ARC had only one member at those times.

• Respondent’s Position: Regis Salazar of VISION Community Management testified that the ARC consisted of three members at all relevant times. She explained that the meeting minutes cited by the petitioner merely identified the individual presenting the committee’s report to the board, not the entire committee’s membership.

• ALJ’s Conclusion: No violation found. The petitioners failed to establish a violation. The respondent’s testimony provided a credible explanation for the format of the meeting minutes, which was the petitioners’ only evidence for this claim.

2.2. Allegation 2: Violation of CC&R Section 8.02 (Structures & Municipal Codes)

• Petitioner’s Claim: Ms. Berent testified that the ARC should not have approved the driveway application because it demonstrated a clear violation of City of Surprise municipal codes on its face, specifically asserting the 10-foot extension caused the driveway to exceed 50 percent of the front lot line. The CC&Rs require structures to comply with municipal regulations.

• Respondent’s Position: Ms. Salazar stated that the HOA places the responsibility on each homeowner to ensure their projects comply with all applicable municipal codes. The ARC does not independently verify compliance. The approval notice sent to the neighbor explicitly stated, “You also must follow all local building codes and setback requirements, if applicable.“

• ALJ’s Conclusion: No violation found. The petitioners failed to establish that the driveway qualified as a “structure” under the definition relevant to Section 8.02. Furthermore, the judge noted that even if it were considered a structure, the HOA did not have a duty or responsibility under this CC&R section to pre-emptively enforce municipal codes.

2.3. Allegation 3: Violation of CC&R Section 8.06 (Obstruction of Easements)

• Petitioner’s Claim: Ms. Berent testified that a fire hydrant located near the property line constituted a “public utility easement” and that the neighbor’s driveway extension was a structure placed upon it, interfering with its use in violation of the CC&Rs.

• Respondent’s Position: Ms. Salazar testified she was not aware of any public utility easement associated with the fire hydrant.

• ALJ’s Conclusion: No violation found. The petitioners failed on two points. First, they presented “no evidence to establish that the fire hydrant at issue constituted a public utility easement.” Second, even assuming it was an easement, they failed to prove the driveway obstructed it. This conclusion was decisively supported by Ms. Berent’s own testimony, in which she “acknowledged… that a residential fire occurred two houses away from her and the fire department had to use the fire hydrant… the fire hose was running across Neighbors’ driveway during that time.” This demonstrated the hydrant remained fully accessible and usable.

2.4. Allegation 4: Violation of A.R.S. § 33-1803(B) (Failure to Enforce)

• Petitioner’s Claim: Ms. Berent argued that “common sense” required the HOA to enforce its CC&Rs and penalize the neighbors for the violations, drawing a comparison to the HOA sending her notices for weeds in her yard.

• Respondent’s Position: The HOA argued that it chose not to pursue enforcement action against the neighbors because the City of Surprise, after issuing an initial Notice of Ordinance Violation, had itself “declined to pursue any further enforcement action.”

• ALJ’s Conclusion: No violation found. The judge pointed to the “plain language” of the statute, which states the board of directors may impose penalties, establishing this as a discretionary power, not a mandatory duty. Nothing in the statute required the HOA to take enforcement action. The HOA’s decision not to act, mirroring the city’s own lack of follow-up, was a valid exercise of its authority.

3. Key Chronology of Events

• July 7, 2015: The petitioners’ neighbors submit an “Application for Design Review” to install a 10-foot by 35-foot concrete driveway extension.

• July 15, 2015: The HOA’s Architectural Review Committee (ARC) approves the application.

• July 17, 2015: VISION Community Management sends an approval notice to the neighbors with conditions, including adherence to a 13-inch property line setback and all local building codes.

• August 2015: The neighbors begin construction. The petitioners email the HOA board to complain about the project, questioning city approval and raising concerns about a nearby fire hydrant.

• May 16, 2016: The City of Surprise issues a “Notice of Ordinance Violation” to the neighbors, stating a “driveway extension was added contrary to code requirements.”

• Post-May 2016: The City of Surprise takes no further enforcement action against the neighbors.

• April 26, 2018: The Berents file their HOA Dispute Petition.

• August 15 & 22, 2018: The administrative hearing is held.

• September 11, 2018: The ALJ issues the final decision, ordering that the petition be dismissed in its entirety.

• March 8, 2022: The ALJ issues a “Minute Entry – Document Reject,” noting that the OAH has no jurisdiction and will not consider further documents submitted by the petitioners.

4. Post-Decision Developments

On March 8, 2022, nearly three and a half years after the case was closed, ALJ Tammy L. Eigenheer issued a “Minute Entry – Document Reject.” This entry states:

“It is unclear why the Office of Administrative Hearings was sent these documents as the decision in this matter was issued on September 11, 2018, and the Office of Administrative Hearings has had no jurisdiction in this matter since that time.”

The entry advises the petitioners that no documents sent after the decision would be considered and that “no further response will be provided from the Office of Administrative Hearings” for any future filings.

5. Quoted Provisions and Statutes

The case revolved around the interpretation of the following sections of the Bell West Ranch Homeowners Association CC&Rs and Arizona Revised Statutes.

• CC&R Section 6.02 (Membership):

• CC&R Section 8.02 (Restrictions Apply to All Structures):

• CC&R Section 8.06 (No Obstruction of Easements):

• A.R.S. § 33-1803(B):


Michael J. Stoltenberg vs. Rancho Del Oro Homeowners Association

Posted on by

Case Summary

Case ID 18F-H1818023-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-04-17
Administrative Law Judge Velva Moses-Thompson
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Michael J. Stoltenberg Counsel —
Respondent Rancho Del Oro Homeowners Association Counsel Lydia Linsmeier, Esq.

Alleged Violations

CC&R section 2.5

Outcome Summary

The Administrative Law Judge dismissed the petition because the Petitioner failed to prove the alleged CC&R violation, and the claim was barred by the four-year statute of limitations.

Why this result: Petitioner failed to establish a violation of CC&R section 2.5, and the petition was filed after the four-year statute of limitations (A.R.S. § 12-550) expired.

Key Issues & Findings

Alleged violation of Community Governing Document regarding pipe installation

Petitioner alleged the HOA violated CC&R section 2.5 by installing pipes for a well. Respondent argued that CC&R section 2.5 was inapplicable as it governs additional easements conveyed to a third party, and that the claim was barred by the four-year statute of limitations (A.R.S. § 12-550).

Orders: Petitioner's petition is dismissed. Respondent deemed the prevailing party.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 12-550
  • CC&R section 2.5
  • ARIZ. REV. STAT. § 32-2199.02

Analytics Highlights

Topics: Statute of Limitations, Easement, CC&R Violation, Well Installation
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 12-550
  • CC&R section 2.5

Audio Overview

Decision Documents

18F-H1818023-REL Decision – 629162.pdf

Uploaded 2025-10-09T03:32:26 (77.0 KB)





Briefing Doc – 18F-H1818023-REL


Administrative Law Judge Decision Briefing: Stoltenberg vs. Rancho Del Oro HOA

Executive Summary

This briefing analyzes the Administrative Law Judge (ALJ) Decision in case number 18F-H1818023-REL, concerning a dispute between homeowner Michael J. Stoltenberg and the Rancho Del Oro Homeowners Association (HOA). Mr. Stoltenberg alleged that the HOA violated community governing documents (CC&Rs) by installing pipes related to a well through his lot.

The ALJ, Velva Moses-Thompson, dismissed the petitioner’s case in its entirety. The decision was based on two independent and definitive grounds. First, Mr. Stoltenberg failed to meet his burden of proof on the merits of the case; the evidence demonstrated that the pipes were installed within a pre-existing easement and not improperly on his lot, and the specific CC&R section cited was inapplicable. Second, the petition was procedurally barred by Arizona’s four-year statute of limitations, as the installation occurred in the summer of 2013, and the action was filed after this period had expired. Consequently, the Rancho Del Oro HOA was deemed the prevailing party.

——————————————————————————–

I. Case Overview

This matter was brought before the Arizona Office of Administrative Hearings following a petition filed by Michael J. Stoltenberg against his HOA.

Case Detail

Information

Case Name

Michael J. Stoltenberg, Petitioner, vs. Rancho Del Oro Homeowners Association, Respondent

Case Number

18F-H1818023-REL

Hearing Body

Arizona Office of Administrative Hearings

Administrative Law Judge

Velva Moses-Thompson

Hearing Date

March 28, 2018

Decision Date

April 17, 2018

II. Core Dispute and Allegations

A. Petitioner’s Claim

The central allegation from the petitioner, Mr. Stoltenberg, was that the Rancho Del Oro HOA violated the Community Governing Document CC&Rs.

• Specific Allegation: The HOA improperly installed pipes through his lot as part of a well installation project.

• Cited CC&R Violations: The petition focused on violations of CC&R sections 1.13, 1.19, and 2.5. The decision notes that sections 1.13 and 1.19 are definition sections, making section 2.5 the substantive focus of the dispute.

B. Respondent’s Defense Strategy

The Rancho Del Oro HOA presented a multi-faceted defense against the petitioner’s claims, combining a procedural dismissal argument with a substantive rebuttal.

1. Statute of Limitations: The HOA contended the claim was barred by the four-year statute of limitations established in ARIZ. REV. STAT. § 12-550. They asserted that since the well and pipes were installed in the summer of 2013, the time frame for filing a petition had expired.

2. Inapplicability of CC&R Section 2.5: The HOA argued that this section was not relevant to the situation. They maintained that CC&R section 2.5 pertains specifically to instances where the HOA grants or conveys an additional easement to a third party, which had not occurred.

3. Factual Rebuttal: The HOA asserted that the pipes were installed within an easement that already existed at the time of installation, not on Mr. Stoltenberg’s lot outside of an easement.

III. Adjudicated Findings and Conclusions

The Administrative Law Judge made several key findings of fact and conclusions of law that formed the basis of the final order. The petitioner, Mr. Stoltenberg, bore the burden of proving the alleged violations by a “preponderance of the evidence.”

A. Findings of Fact

The ALJ’s decision was based on the testimony and evidence presented at the hearing. The key findings were:

• Witnesses: The court heard testimony from petitioner Michael J. Stoltenberg, HOA community manager Diana Crites, and HOA Board Chairman James Van Sickle.

• Location of Installation: Evidence showed the pipes were installed in an easement that was already in existence at the time of the 2013 installation.

• Failure of Evidentiary Support: The judge explicitly noted, “There was no evidence presented at hearing that the well or the well pipe were installed on Mr. Stoltenberg’s lot.”

B. Conclusions of Law

Based on the evidence and statutes, the ALJ reached the following legal conclusions:

• Statute of Limitations is Applicable: The judge affirmed that ARIZ. REV. STAT. § 12-550 establishes a four-year statute of limitations for such actions. The installation occurred in 2013, and Mr. Stoltenberg filed his petition after this four-year period had expired, rendering the claim time-barred.

• Interpretation of CC&R 2.5: The judge agreed with the HOA’s interpretation, concluding that CC&R section 2.5 applies to easements granted to a third party by the HOA.

• No Violation Occurred: The “weight of the evidence” demonstrated that the pipes were in an existing easement and the HOA did not grant or convey a new easement to a third party. Therefore, Mr. Stoltenberg failed to establish a violation of CC&R section 2.5.

• Failure to Meet Burden of Proof: Due to the lack of evidence and the inapplicability of the cited CC&R section, the petitioner failed to prove the alleged violation by a preponderance of the evidence.

IV. Final Order and Implications

Based on the dual findings that the claim was both time-barred and without merit, the Administrative Law Judge issued a decisive order.

• Order: “IT IS ORDERED that Mr. Stoltenberg’s petition is dismissed.”

• Prevailing Party: The Respondent, Rancho Del Oro Homeowners Association, was deemed the prevailing party in the matter.

• Next Steps: The decision is binding on the parties unless a rehearing is requested with the Commissioner of the Department of Real Estate within 30 days of the order’s service, pursuant to A.R.S. § 32-2199.04 and § 41-1092.09.


Michael J. Stoltenberg vs. Rancho Del Oro Homeowners Association

Posted on by

Case Summary

Case ID 18F-H1818023-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-04-17
Administrative Law Judge Velva Moses-Thompson
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Michael J. Stoltenberg Counsel —
Respondent Rancho Del Oro Homeowners Association Counsel Lydia Linsmeier, Esq.

Alleged Violations

CC&R section 2.5

Outcome Summary

The Administrative Law Judge dismissed the petition because the Petitioner failed to prove the alleged CC&R violation, and the claim was barred by the four-year statute of limitations.

Why this result: Petitioner failed to establish a violation of CC&R section 2.5, and the petition was filed after the four-year statute of limitations (A.R.S. § 12-550) expired.

Key Issues & Findings

Alleged violation of Community Governing Document regarding pipe installation

Petitioner alleged the HOA violated CC&R section 2.5 by installing pipes for a well. Respondent argued that CC&R section 2.5 was inapplicable as it governs additional easements conveyed to a third party, and that the claim was barred by the four-year statute of limitations (A.R.S. § 12-550).

Orders: Petitioner's petition is dismissed. Respondent deemed the prevailing party.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 12-550
  • CC&R section 2.5
  • ARIZ. REV. STAT. § 32-2199.02

Analytics Highlights

Topics: Statute of Limitations, Easement, CC&R Violation, Well Installation
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 12-550
  • CC&R section 2.5

Audio Overview

Decision Documents

18F-H1818023-REL Decision – 629162.pdf

Uploaded 2025-10-08T07:04:28 (77.0 KB)





Briefing Doc – 18F-H1818023-REL


Administrative Law Judge Decision Briefing: Stoltenberg vs. Rancho Del Oro HOA

Executive Summary

This briefing analyzes the Administrative Law Judge (ALJ) Decision in case number 18F-H1818023-REL, concerning a dispute between homeowner Michael J. Stoltenberg and the Rancho Del Oro Homeowners Association (HOA). Mr. Stoltenberg alleged that the HOA violated community governing documents (CC&Rs) by installing pipes related to a well through his lot.

The ALJ, Velva Moses-Thompson, dismissed the petitioner’s case in its entirety. The decision was based on two independent and definitive grounds. First, Mr. Stoltenberg failed to meet his burden of proof on the merits of the case; the evidence demonstrated that the pipes were installed within a pre-existing easement and not improperly on his lot, and the specific CC&R section cited was inapplicable. Second, the petition was procedurally barred by Arizona’s four-year statute of limitations, as the installation occurred in the summer of 2013, and the action was filed after this period had expired. Consequently, the Rancho Del Oro HOA was deemed the prevailing party.

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I. Case Overview

This matter was brought before the Arizona Office of Administrative Hearings following a petition filed by Michael J. Stoltenberg against his HOA.

Case Detail

Information

Case Name

Michael J. Stoltenberg, Petitioner, vs. Rancho Del Oro Homeowners Association, Respondent

Case Number

18F-H1818023-REL

Hearing Body

Arizona Office of Administrative Hearings

Administrative Law Judge

Velva Moses-Thompson

Hearing Date

March 28, 2018

Decision Date

April 17, 2018

II. Core Dispute and Allegations

A. Petitioner’s Claim

The central allegation from the petitioner, Mr. Stoltenberg, was that the Rancho Del Oro HOA violated the Community Governing Document CC&Rs.

• Specific Allegation: The HOA improperly installed pipes through his lot as part of a well installation project.

• Cited CC&R Violations: The petition focused on violations of CC&R sections 1.13, 1.19, and 2.5. The decision notes that sections 1.13 and 1.19 are definition sections, making section 2.5 the substantive focus of the dispute.

B. Respondent’s Defense Strategy

The Rancho Del Oro HOA presented a multi-faceted defense against the petitioner’s claims, combining a procedural dismissal argument with a substantive rebuttal.

1. Statute of Limitations: The HOA contended the claim was barred by the four-year statute of limitations established in ARIZ. REV. STAT. § 12-550. They asserted that since the well and pipes were installed in the summer of 2013, the time frame for filing a petition had expired.

2. Inapplicability of CC&R Section 2.5: The HOA argued that this section was not relevant to the situation. They maintained that CC&R section 2.5 pertains specifically to instances where the HOA grants or conveys an additional easement to a third party, which had not occurred.

3. Factual Rebuttal: The HOA asserted that the pipes were installed within an easement that already existed at the time of installation, not on Mr. Stoltenberg’s lot outside of an easement.

III. Adjudicated Findings and Conclusions

The Administrative Law Judge made several key findings of fact and conclusions of law that formed the basis of the final order. The petitioner, Mr. Stoltenberg, bore the burden of proving the alleged violations by a “preponderance of the evidence.”

A. Findings of Fact

The ALJ’s decision was based on the testimony and evidence presented at the hearing. The key findings were:

• Witnesses: The court heard testimony from petitioner Michael J. Stoltenberg, HOA community manager Diana Crites, and HOA Board Chairman James Van Sickle.

• Location of Installation: Evidence showed the pipes were installed in an easement that was already in existence at the time of the 2013 installation.

• Failure of Evidentiary Support: The judge explicitly noted, “There was no evidence presented at hearing that the well or the well pipe were installed on Mr. Stoltenberg’s lot.”

B. Conclusions of Law

Based on the evidence and statutes, the ALJ reached the following legal conclusions:

• Statute of Limitations is Applicable: The judge affirmed that ARIZ. REV. STAT. § 12-550 establishes a four-year statute of limitations for such actions. The installation occurred in 2013, and Mr. Stoltenberg filed his petition after this four-year period had expired, rendering the claim time-barred.

• Interpretation of CC&R 2.5: The judge agreed with the HOA’s interpretation, concluding that CC&R section 2.5 applies to easements granted to a third party by the HOA.

• No Violation Occurred: The “weight of the evidence” demonstrated that the pipes were in an existing easement and the HOA did not grant or convey a new easement to a third party. Therefore, Mr. Stoltenberg failed to establish a violation of CC&R section 2.5.

• Failure to Meet Burden of Proof: Due to the lack of evidence and the inapplicability of the cited CC&R section, the petitioner failed to prove the alleged violation by a preponderance of the evidence.

IV. Final Order and Implications

Based on the dual findings that the claim was both time-barred and without merit, the Administrative Law Judge issued a decisive order.

• Order: “IT IS ORDERED that Mr. Stoltenberg’s petition is dismissed.”

• Prevailing Party: The Respondent, Rancho Del Oro Homeowners Association, was deemed the prevailing party in the matter.

• Next Steps: The decision is binding on the parties unless a rehearing is requested with the Commissioner of the Department of Real Estate within 30 days of the order’s service, pursuant to A.R.S. § 32-2199.04 and § 41-1092.09.