**Case Summary: McConnell v. Dew Mutual Expense Sharing Group**
**Case No. 12F-H1213013-BFS**

**Proceedings Overview**
This administrative hearing was held on March 26, 2013, before Administrative Law Judge Brian Brendan Tully at the Office of Administrative Hearings in Phoenix, Arizona. The dispute involved Petitioners Edward J. and Judith S. McConnell and the Respondent, Dew Mutual Expense Sharing Group, an unincorporated condominium association. The Petitioners bore the burden of proof by a preponderance of the evidence.

**Key Facts**
On September 12, 2012, the Petitioners requested Board authorization to install an Alumawood™ shade structure on the west side of their condominium. This request followed the significant trimming of a Palo Verde tree in the common elements, which had previously shaded their unit. The Board expressed misgivings on September 17, 2012, but did not formally deny the request until November 14, 2012. Without waiting for written approval, the Petitioners installed the structure in October 2012. The structure was erected on "common elements," which are defined to include land not conveyed with individual units and the exterior of the units.

**Main Issues and Arguments**
* **Petitioners’ Position:** The Petitioners argued that the Association violated A.R.S. § 33-1803(D) by delaying the denial of their request for over two months and failing to provide specific statutory information regarding the violation notice.
* **Respondent’s Position:** The Association contended that the Petitioners violated Section 2.04 of the Rules and Regulations and A.R.S. § 33-1221(2) by making exterior additions to common elements without prior written Board approval.

**Legal Findings**
The Administrative Law Judge ruled in favor of the Respondent regarding the alleged violations. The key legal points were:
1. **Unauthorized Alteration:** The evidence established that the Petitioners erected the structure on common elements without written permission, violating both Association Rule 2.04 and A.R.S. § 33-1221(2). Furthermore, they did not obtain a conveyance of the common elements from 80% of the membership as required by A.R.S. § 33-1252.
2. **Procedural Compliance:** The Judge rejected the Petitioners' claim regarding A.R.S. § 33-1803(D). The statute requires an association to respond within ten days only after receiving a member’s response via *certified mail*. As the Petitioners failed to prove they sent their response by certified mail, the Association was not found in violation of the statutory timeline.

**Outcome and Final Decision**
The Administrative Law Judge recommended that the Petition be dismissed because the Petitioners failed to sustain their burden of proof. Although the Respondent requested an order requiring the removal of the shade structure, the Judge denied this request because the Association had not filed its own petition seeking such relief.

The decision was certified as the final administrative decision of the Department of Fire, Building, and Life Safety on May 21, 2013, after the Department took no action to reject or modify the ALJ’s recommendation within the statutory timeframe.