The ALJ granted the petitioner's request, finding that the HOA violated A.R.S. § 33-1813 by allowing the president to call a special meeting for board member recall without the required petition signed by homeowners. The HOA was ordered to reinstate the two removed board members and refund the petitioner's filing fee.
Key Issues & Findings
Removal of board member; special meeting
Petitioner alleged the HOA violated A.R.S. § 33-1813 when the president called a special meeting to recall three recently elected Board members, arguing that the statute requires a petition signed by homeowners. Respondent argued that A.R.S. § 33-1804 procedures could also be used. The ALJ ruled that A.R.S. § 33-1813, as the specific statute regarding removal, requires a petition.
Orders: Petitioner’s petition is granted. Respondent shall reinstate Board members Steve Brownell and Trish Brownell and reimburse the $500.00 single-issue filing fee.
Briefing Document: Van Dan Elzen v. Carter Ranch Homeowners Association (Case No. 18F-H1818042-REL)
Executive Summary
This document synthesizes the findings and decision in the case of Thomas J. Van Dan Elzen versus the Carter Ranch Homeowners Association (HOA), heard by the Arizona Office of Administrative Hearings. The central dispute concerned the legality of a special meeting called by the HOA Board President to recall three recently elected board members. The petitioner argued this action violated Arizona Revised Statute (A.R.S.) § 33-1813, which requires such a recall to be initiated by a petition from homeowners. The HOA contended that the president had the authority to call the meeting under the broader powers granted in A.R.S. § 33-1804.
The Administrative Law Judge concluded that when a specific statute and a general statute conflict, the specific statute controls. A.R.S. § 33-1813 specifically governs the removal of board members and mandates a homeowner petition process. Therefore, the president’s unilateral call for a recall election was improper. The judge granted the petitioner’s request, ordering the HOA to reinstate the two board members who were removed and to reimburse the petitioner’s $500.00 filing fee.
Background and Procedural History
The case involves a dispute within the Carter Ranch development, a 253-lot community in Coolidge, Arizona.
• Petitioner: Thomas J. Van Dan Elzen, a homeowner and member of the Carter Ranch HOA.
• Respondent: Carter Ranch Homeowners Association.
• Petition: On or about April 5, 2018, Van Dan Elzen filed a petition with the Arizona Department of Real Estate. He alleged the HOA violated A.R.S. § 33-1813 when its president, Lance Van Horne, called a special meeting to recall three newly elected board members.
• Hearing: The matter was referred to the Office of Administrative Hearings for an evidentiary hearing, which took place on June 20, 2018, before Administrative Law Judge Diane Mihalsky.
The Contested Elections
The dispute originated from a contentious board election process marked by accusations of misconduct, culminating in a recall election that was later found to be procedurally invalid.
March 20, 2018 Board Election
An initial annual meeting on February 20, 2018, failed to achieve the required quorum of 26 ballots. A second meeting was scheduled for March 20, 2018, for which eight candidates ran for five open board positions.
• Allegations of Misconduct: Prior to the meeting, Community Manager Mary Chaira received reports that three candidates—Roxanne Gould, Steve Brownell, and Trish Brownell—were going door-to-door “disseminating allegedly false information about Respondent’s finances, and harvesting ballots.”
• Meeting Conduct: At the March 20 meeting, a quorum of 47 homeowners was present. Board President Lance Van Horne addressed the allegations of false information. However, homeowners who may have filled out ballots based on this information were not permitted to withdraw them. The meeting was described by Ms. Chaira as “unruly and stressful.”
The election results for the top six candidates were as follows:
Candidate
Number of Votes
Outcome
Roxanne Gould
Elected
Steve Brownell
Elected
Trish Brownell
Elected
Lance Van Horne
Elected
Steve F.
Tie for 5th position
Tie for 5th position
April 24, 2018 Recall Election
Believing the March 20 election outcome was “compromised” by the alleged dissemination of false information and ballot harvesting, President Van Horne called a special meeting for April 24, 2018, to hold a recall election for the three newly elected members: Roxanne Gould, Steve Brownell, and Trish Brownell.
A quorum of 52 homeowners returned ballots for the recall. The results were:
Board Member
Votes for Recall
Votes against Recall
Outcome
Roxanne Gould
Remained on Board
Steve Brownell
Removed from Board
Trish Brownell
Removed from Board
Following the recall, other members were elected to fill the vacant board positions.
Central Legal Issue: Statutory Interpretation
The case presented a pure legal question of statutory interpretation, as the facts of what occurred were not in dispute. The core issue was which Arizona statute governs the process for recalling an HOA board member.
Competing Legal Positions
• Petitioner’s Argument: The recall election was invalid because it violated A.R.S. § 33-1813. This statute, titled “Removal of board member; special meeting,” explicitly states that a recall process is initiated upon the board’s receipt of a petition signed by a specified number or percentage of homeowners. The president’s unilateral action did not meet this requirement.
• Respondent’s Argument: The HOA argued that A.R.S. § 33-1813 was not the exclusive procedure. It claimed that the president could also call such a meeting under the authority of A.R.S. § 33-1804, a more general statute governing meetings, which states that “Special meetings of the members’ association may be called by the president.”
Statutory Analysis by the Court
The Administrative Law Judge highlighted the direct conflict between the two statutes on the subject of board member removal.
Feature
A.R.S. § 33-1813 (Specific Statute)
A.R.S. § 33-1804(B) (General Statute)
Meeting Initiation
By homeowner petition only.
By the president, a board majority, or homeowner petition.
Petition Requirement
For HOAs ≤ 1,000 members: petition signed by at least 100 members or 25% of votes, whichever is less.
Petition signed by at least 25% of votes (or lower if specified in bylaws).
Meeting Notice
Within 30 days after receipt of the petition.
Between 10 and 50 days in advance of the meeting.
The judge noted that A.R.S. § 33-1813 specifically overrides the petition requirements of A.R.S. § 33-1804(B), demonstrating legislative intent for it to be the controlling authority on this specific issue.
The Judge’s Legal Conclusion
The decision rested on the well-established legal principle that a specific statute governs over a general one when they are inconsistent. Citing case law, the judge reasoned:
“When provisions of a general statute are inconsistent with those of a special nature on the same subject, the special statute controls.”
Applying this canon of statutory construction, the judge concluded that A.R.S. § 33-1813 is the controlling authority for the removal of an HOA board member. Therefore, a valid recall process must be initiated by a homeowner petition as outlined in that statute. The president lacked the authority to call the April 24, 2018 recall meeting on his own initiative.
Final Order and Implications
Based on the legal conclusion that the Respondent violated A.R.S. § 33-1813, the Administrative Law Judge issued a recommended order with the following mandates:
1. Petition Granted: The petitioner’s petition is granted.
2. Board Member Reinstatement: The Carter Ranch HOA is required to reinstate Board members Steve Brownell and Trish Brownell.
3. Fee Reimbursement: The HOA must reimburse the petitioner, Thomas J. Van Dan Elzen, for his $500.00 single-issue filing fee.
This order is considered binding unless a party files a request for rehearing with the Commissioner of the Department of Real Estate within 30 days of the service of the order.
Study Guide – 18F-H1818042-REL
Study Guide: Van Dan Elzen v. Carter Ranch Homeowners Association
This study guide provides a detailed review of the Administrative Law Judge Decision in case number 18F-H1818042-REL, Thomas J. Van Dan Elzen v. Carter Ranch Homeowners Association. It covers the key facts, legal arguments, and final ruling of the case.
Short-Answer Quiz
Answer the following questions in 2-3 sentences each, based on the information provided in the case document.
1. Who were the primary parties involved in this case, and what were their respective roles?
2. What specific action by the Carter Ranch Homeowners Association (HOA) prompted the Petitioner to file a complaint with the Arizona Department of Real Estate?
3. What were the allegations made against candidates Roxanne Gould, Steve Brownell, and Trish Brownell prior to the March 20, 2018 election?
4. State the vote counts for the top three candidates who were elected to the Board of Directors on March 20, 2018.
5. What was the reason given by the Board’s president, Lance Van Horne, for calling a special recall election for April 24, 2018?
6. What were the specific outcomes for each of the three board members facing recall in the April 24, 2018 election?
7. Which two Arizona Revised Statutes (A.R.S.) were at the center of the legal dispute, and what general topics do they cover?
8. What was the HOA’s primary legal argument for why its president was permitted to call the special recall meeting?
9. What legal principle of statutory construction did the Administrative Law Judge use to resolve the conflict between the two statutes?
10. What two things was the Respondent, Carter Ranch HOA, ordered to do in the final ruling?
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Quiz Answer Key
1. The primary parties were Thomas J. Van Dan Elzen, the Petitioner, who is a homeowner and member of the association, and the Carter Ranch Homeowners Association, the Respondent. The Petitioner initiated the legal action against the HOA.
2. The Petitioner filed the complaint because the HOA’s president called a special meeting to hold a vote on recalling three recently elected members of the Board of Directors. The Petitioner alleged this action violated A.R.S. § 33-1813, which requires such a recall to be initiated by a petition signed by homeowners.
3. Prior to the March election, reports were made that Roxanne Gould, Steve Brownell, and Trish Brownell were going door-to-door disseminating allegedly false information about the HOA’s finances. They were also accused of “harvesting ballots” from members based on this information.
4. The top three candidates elected on March 20, 2018, were Roxanne Gould with 30 votes, Steve Brownell with 26 votes, and Trish Brownell with 25 votes.
5. Board president Lance Van Horne called the special recall election because he felt the election’s outcome was compromised. He believed the dissemination of allegedly false information and the harvesting of votes by the Brownells and Ms. Gould had tainted the results.
6. In the April 24 recall election, Roxanne Gould survived the recall with 27 votes against to 25 for. Steve Brownell and Trish Brownell were both removed from the board, with 27 votes for their recall and 25 against.
7. The statutes at the center of the dispute were A.R.S. § 33-1813 and A.R.S. § 33-1804. A.R.S. § 33-1813 specifically covers the “Removal of board member; special meeting,” while A.R.S. § 33-1804 is a more general statute concerning “Open meetings.”
8. The HOA argued that A.R.S. § 33-1813 was not the only procedure for calling a recall meeting. It contended that the procedures in the more general statute, A.R.S. § 33-1804, which allows the president to call a special meeting, could also be used.
9. The judge applied the well-established common law principle that when a general statute and a specific statute on the same subject are in conflict, the specific statute controls. Therefore, the specific procedures for recall in A.R.S. § 33-1813 took precedence over the general meeting rules in A.R.S. § 33-1804.
10. The Carter Ranch HOA was ordered to reinstate the removed board members, Steve Brownell and Trish Brownell. The HOA was also ordered to reimburse the Petitioner for his $500.00 single-issue filing fee.
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Essay Questions
1. Trace the complete timeline of events described in the decision, beginning with the failed meeting on February 20, 2018, and concluding with the judge’s final order. For each key date, describe the event that occurred, the people involved, and the outcome of the event.
2. Analyze the conflicting interpretations of Arizona state law presented by the Petitioner and the Respondent. Explain which specific clauses of A.R.S. § 33-1813 and A.R.S. § 33-1804 each party relied upon to justify their position regarding the legality of the April 24, 2018 recall meeting.
3. The decision states that the case presents a “pure legal issue of statutory interpretation.” Explain what this means and how it affects the burden of proof. Describe in detail the canons of statutory construction cited by the judge and how she applied them to rule in favor of the Petitioner.
4. Discuss the role of the allegations of misconduct (disseminating false information and harvesting ballots) against the newly elected board members. How did these allegations act as a catalyst for the recall election, and what was their ultimate relevance (or lack thereof) to the final legal conclusion reached by the Administrative Law Judge?
5. Based on the judge’s “Conclusions of Law,” explain the definitive legal procedure for an HOA in Arizona, with 1,000 or fewer members, to initiate the removal of a board member. Detail the petition requirements, signature thresholds, and meeting notice timelines as established by the controlling statute, A.R.S. § 33-1813.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent official who presides over administrative hearings, hears evidence, and makes legal decisions, in this case, Diane Mihalsky from the Office of Administrative Hearings.
A.R.S.
Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona.
Board of Directors
The governing body of the homeowners’ association, elected by the members.
Burden of Proof
The obligation on a party in a legal case to prove their allegations. In this matter, the Petitioner bore the burden of proof to establish the violation.
De Novo Review
A type of review where a court or judge decides the issues without reference to any legal conclusion or assumption made by the previous party in the case. This was applied because the issue was a pure matter of statutory interpretation.
Department
Refers to the Arizona Department of Real Estate, the state agency authorized to receive and decide on petitions from HOA members.
Evidentiary Standard
The level of proof required to convince the trier of fact. In this case, the standard was a “preponderance of the evidence.”
Homeowners’ Association (HOA)
The organization that governs the Carter Ranch development, of which all lot owners are members.
Office of Administrative Hearings
An independent state agency in Arizona where evidentiary hearings, like the one in this case, are conducted.
Petitioner
The party who initiates a legal action by filing a petition. In this case, it was homeowner Thomas J. Van Dan Elzen.
Preponderance of the Evidence
The standard of proof in which the trier of fact is convinced that a contention is more probably true than not.
Quorum
The minimum number of members of an association that must be present at a meeting for the proceedings of that meeting to be valid. In the March 20 election, the quorum was 47 homeowners.
Recall Election
A special vote held to determine whether to remove an elected official (in this case, board members) from office before the end of their term.
Respondent
The party against whom a petition is filed. In this case, it was the Carter Ranch Homeowners Association.
Special Meeting
A meeting of an association’s members called for a specific purpose outside of the regularly scheduled annual meetings. The April 24 recall vote was a special meeting.
Statutory Construction
The process of interpreting and applying legislation. The judge used common-law canons of statutory construction to resolve the conflict between the two A.R.S. sections.
Blog Post – 18F-H1818042-REL
Majority Rules? Not in This HOA: How One Homeowner Overturned a Recall Election on a Technicality
The Unruly World of Neighborhood Politics
In the world of Homeowners Associations, a majority vote is typically the final word. But for the Carter Ranch HOA, a 27-to-25 recall vote meant to oust two board members became the start of a legal battle, not the end. This case reveals a crucial lesson in community governance: when a board president’s unilateral action clashes with statutory procedure, the will of the majority can be rendered completely irrelevant.
A Democratic Vote Can Be Completely Ignored
On April 24, 2018, the Carter Ranch HOA held a special recall election targeting three recently elected board members: Roxanne Gould, Steve Brownell, and Trish Brownell. A quorum of 52 homeowners participated, and the vote was a split decision. Roxanne Gould survived the recall attempt, with 27 votes against her removal and 25 for it. However, Steve and Trish Brownell were successfully voted off the board by a clear majority of 27 to 25.
The twist came later, in a judge’s chambers. Despite the democratic outcome, an Administrative Law Judge ordered the HOA to reinstate the Brownells. This counter-intuitive decision wasn’t the result of voter fraud or a miscount. The entire election was nullified because of a critical procedural error made by the HOA president before a single ballot was cast.
An HOA President Can’t Unilaterally Oust Board Members
The conflict began after a heated board election on March 20, 2018. The board president at the time, Lance Van Horne, felt the election’s outcome was “compromised.” He believed three newly elected members had won their seats by disseminating “allegedly false information” and “harvesting of votes.”
In response, Mr. Van Horne took decisive action. Believing he was correcting a wrong, he personally called for a special meeting to hold a recall election. This unilateral action became the sole basis for the legal challenge that followed. While the president’s concerns about election integrity were the catalyst for the drama, the court’s subsequent decision would demonstrate that his motives were entirely irrelevant. The only thing that mattered was the procedure he followed—or in this case, failed to follow.
The “Specific Beats General” Rule Is King
The HOA’s legal defense rested on a general statute, A.R.S. § 33-1804, which grants an association’s president the power to call special meetings for various purposes. They argued this general power included the authority to call a recall meeting.
However, the homeowner who challenged the recall pointed to a different, more specific law. A.R.S. § 33-1813 is a statute written exclusively for the purpose of removing board members. This specific law dictates that a recall process can only be initiated upon receipt of a petition signed by a required number of homeowners. The president cannot simply decide to do it alone.
The judge’s decision hinged on a foundational principle of legal interpretation. As cited in the final order:
“When provisions of a general statute are inconsistent with those of a special nature on the same subject, the special statute controls.”
Because the HOA president initiated the recall without first receiving the required petition from the homeowners, he failed to follow the specific procedure mandated by law. As a result, the entire recall election was declared invalid from the start.
One Homeowner Can Successfully Challenge an Entire HOA
This entire case was set in motion not by a group of disgruntled residents, but by a single individual. Homeowner Thomas J. Van Dan Elzen filed a “single-issue petition” with the state, challenging the validity of the president’s action. His understanding of the specific rules governing board member removal proved to be the key that unraveled the HOA’s actions.
The final court order was a complete victory for the petitioner:
• His petition was granted.
• The Carter Ranch HOA was ordered to reinstate the two removed board members, Steve and Trish Brownell.
• The HOA was also ordered to reimburse the petitioner for his $500.00 filing fee.
This outcome serves as an empowering example of how a single member, armed with knowledge of the governing documents and statutes, can hold an association’s leadership accountable and ensure that proper procedures are followed.
Conclusion: Rules, Not Rulers
The Carter Ranch case is a powerful illustration that in community governance, established process is not a technicality—it is the bedrock of legitimacy. The board’s failure to adhere to the specific statute for recalls (A.R.S. § 33-1813) created a fatal procedural flaw that no amount of good intention or majority support could cure. This serves as a stark reminder for all HOA boards: power is derived from the meticulous application of rules, not the perceived authority of rulers. Ignoring this principle doesn’t just invalidate an action; it exposes the association to legal challenges, financial penalties, and a loss of credibility with the community it governs. Do you know the specific rules that govern your own community?
Case Participants
Petitioner Side
Thomas J. Van Dan Elzen(petitioner) Appeared on his own behalf
Respondent Side
Chad M. Gallacher(attorney) Maxwell & Morgan, P.C. Represented Respondent
Mary Chaira(Community Manager) Witness for Respondent
Lance Van Horne(Board President) Called the special recall election which led to the petition,,
Neutral Parties
Diane Mihalsky(ALJ)
Judy Lowe(Commissioner) Arizona Department of Real Estate Received decision
Felicia Del Sol(staff) Transmitted decision
Other Participants
Roxanne Gould(board member) Elected board member; subject of recall attempt,,
Steve Brownell(board member) Elected board member; removed by recall, reinstated by recommended order,,,
Trish Brownell(board member) Elected board member; removed by recall, reinstated by recommended order,,,
The ALJ granted the petitioner's request, finding that the HOA violated A.R.S. § 33-1813 by allowing the president to call a special meeting for board member recall without the required petition signed by homeowners. The HOA was ordered to reinstate the two removed board members and refund the petitioner's filing fee.
Key Issues & Findings
Removal of board member; special meeting
Petitioner alleged the HOA violated A.R.S. § 33-1813 when the president called a special meeting to recall three recently elected Board members, arguing that the statute requires a petition signed by homeowners. Respondent argued that A.R.S. § 33-1804 procedures could also be used. The ALJ ruled that A.R.S. § 33-1813, as the specific statute regarding removal, requires a petition.
Orders: Petitioner’s petition is granted. Respondent shall reinstate Board members Steve Brownell and Trish Brownell and reimburse the $500.00 single-issue filing fee.
Briefing Document: Van Dan Elzen v. Carter Ranch Homeowners Association (Case No. 18F-H1818042-REL)
Executive Summary
This document synthesizes the findings and decision in the case of Thomas J. Van Dan Elzen versus the Carter Ranch Homeowners Association (HOA), heard by the Arizona Office of Administrative Hearings. The central dispute concerned the legality of a special meeting called by the HOA Board President to recall three recently elected board members. The petitioner argued this action violated Arizona Revised Statute (A.R.S.) § 33-1813, which requires such a recall to be initiated by a petition from homeowners. The HOA contended that the president had the authority to call the meeting under the broader powers granted in A.R.S. § 33-1804.
The Administrative Law Judge concluded that when a specific statute and a general statute conflict, the specific statute controls. A.R.S. § 33-1813 specifically governs the removal of board members and mandates a homeowner petition process. Therefore, the president’s unilateral call for a recall election was improper. The judge granted the petitioner’s request, ordering the HOA to reinstate the two board members who were removed and to reimburse the petitioner’s $500.00 filing fee.
Background and Procedural History
The case involves a dispute within the Carter Ranch development, a 253-lot community in Coolidge, Arizona.
• Petitioner: Thomas J. Van Dan Elzen, a homeowner and member of the Carter Ranch HOA.
• Respondent: Carter Ranch Homeowners Association.
• Petition: On or about April 5, 2018, Van Dan Elzen filed a petition with the Arizona Department of Real Estate. He alleged the HOA violated A.R.S. § 33-1813 when its president, Lance Van Horne, called a special meeting to recall three newly elected board members.
• Hearing: The matter was referred to the Office of Administrative Hearings for an evidentiary hearing, which took place on June 20, 2018, before Administrative Law Judge Diane Mihalsky.
The Contested Elections
The dispute originated from a contentious board election process marked by accusations of misconduct, culminating in a recall election that was later found to be procedurally invalid.
March 20, 2018 Board Election
An initial annual meeting on February 20, 2018, failed to achieve the required quorum of 26 ballots. A second meeting was scheduled for March 20, 2018, for which eight candidates ran for five open board positions.
• Allegations of Misconduct: Prior to the meeting, Community Manager Mary Chaira received reports that three candidates—Roxanne Gould, Steve Brownell, and Trish Brownell—were going door-to-door “disseminating allegedly false information about Respondent’s finances, and harvesting ballots.”
• Meeting Conduct: At the March 20 meeting, a quorum of 47 homeowners was present. Board President Lance Van Horne addressed the allegations of false information. However, homeowners who may have filled out ballots based on this information were not permitted to withdraw them. The meeting was described by Ms. Chaira as “unruly and stressful.”
The election results for the top six candidates were as follows:
Candidate
Number of Votes
Outcome
Roxanne Gould
Elected
Steve Brownell
Elected
Trish Brownell
Elected
Lance Van Horne
Elected
Steve F.
Tie for 5th position
Tie for 5th position
April 24, 2018 Recall Election
Believing the March 20 election outcome was “compromised” by the alleged dissemination of false information and ballot harvesting, President Van Horne called a special meeting for April 24, 2018, to hold a recall election for the three newly elected members: Roxanne Gould, Steve Brownell, and Trish Brownell.
A quorum of 52 homeowners returned ballots for the recall. The results were:
Board Member
Votes for Recall
Votes against Recall
Outcome
Roxanne Gould
Remained on Board
Steve Brownell
Removed from Board
Trish Brownell
Removed from Board
Following the recall, other members were elected to fill the vacant board positions.
Central Legal Issue: Statutory Interpretation
The case presented a pure legal question of statutory interpretation, as the facts of what occurred were not in dispute. The core issue was which Arizona statute governs the process for recalling an HOA board member.
Competing Legal Positions
• Petitioner’s Argument: The recall election was invalid because it violated A.R.S. § 33-1813. This statute, titled “Removal of board member; special meeting,” explicitly states that a recall process is initiated upon the board’s receipt of a petition signed by a specified number or percentage of homeowners. The president’s unilateral action did not meet this requirement.
• Respondent’s Argument: The HOA argued that A.R.S. § 33-1813 was not the exclusive procedure. It claimed that the president could also call such a meeting under the authority of A.R.S. § 33-1804, a more general statute governing meetings, which states that “Special meetings of the members’ association may be called by the president.”
Statutory Analysis by the Court
The Administrative Law Judge highlighted the direct conflict between the two statutes on the subject of board member removal.
Feature
A.R.S. § 33-1813 (Specific Statute)
A.R.S. § 33-1804(B) (General Statute)
Meeting Initiation
By homeowner petition only.
By the president, a board majority, or homeowner petition.
Petition Requirement
For HOAs ≤ 1,000 members: petition signed by at least 100 members or 25% of votes, whichever is less.
Petition signed by at least 25% of votes (or lower if specified in bylaws).
Meeting Notice
Within 30 days after receipt of the petition.
Between 10 and 50 days in advance of the meeting.
The judge noted that A.R.S. § 33-1813 specifically overrides the petition requirements of A.R.S. § 33-1804(B), demonstrating legislative intent for it to be the controlling authority on this specific issue.
The Judge’s Legal Conclusion
The decision rested on the well-established legal principle that a specific statute governs over a general one when they are inconsistent. Citing case law, the judge reasoned:
“When provisions of a general statute are inconsistent with those of a special nature on the same subject, the special statute controls.”
Applying this canon of statutory construction, the judge concluded that A.R.S. § 33-1813 is the controlling authority for the removal of an HOA board member. Therefore, a valid recall process must be initiated by a homeowner petition as outlined in that statute. The president lacked the authority to call the April 24, 2018 recall meeting on his own initiative.
Final Order and Implications
Based on the legal conclusion that the Respondent violated A.R.S. § 33-1813, the Administrative Law Judge issued a recommended order with the following mandates:
1. Petition Granted: The petitioner’s petition is granted.
2. Board Member Reinstatement: The Carter Ranch HOA is required to reinstate Board members Steve Brownell and Trish Brownell.
3. Fee Reimbursement: The HOA must reimburse the petitioner, Thomas J. Van Dan Elzen, for his $500.00 single-issue filing fee.
This order is considered binding unless a party files a request for rehearing with the Commissioner of the Department of Real Estate within 30 days of the service of the order.
Study Guide – 18F-H1818042-REL
Study Guide: Van Dan Elzen v. Carter Ranch Homeowners Association
This study guide provides a detailed review of the Administrative Law Judge Decision in case number 18F-H1818042-REL, Thomas J. Van Dan Elzen v. Carter Ranch Homeowners Association. It covers the key facts, legal arguments, and final ruling of the case.
Short-Answer Quiz
Answer the following questions in 2-3 sentences each, based on the information provided in the case document.
1. Who were the primary parties involved in this case, and what were their respective roles?
2. What specific action by the Carter Ranch Homeowners Association (HOA) prompted the Petitioner to file a complaint with the Arizona Department of Real Estate?
3. What were the allegations made against candidates Roxanne Gould, Steve Brownell, and Trish Brownell prior to the March 20, 2018 election?
4. State the vote counts for the top three candidates who were elected to the Board of Directors on March 20, 2018.
5. What was the reason given by the Board’s president, Lance Van Horne, for calling a special recall election for April 24, 2018?
6. What were the specific outcomes for each of the three board members facing recall in the April 24, 2018 election?
7. Which two Arizona Revised Statutes (A.R.S.) were at the center of the legal dispute, and what general topics do they cover?
8. What was the HOA’s primary legal argument for why its president was permitted to call the special recall meeting?
9. What legal principle of statutory construction did the Administrative Law Judge use to resolve the conflict between the two statutes?
10. What two things was the Respondent, Carter Ranch HOA, ordered to do in the final ruling?
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Quiz Answer Key
1. The primary parties were Thomas J. Van Dan Elzen, the Petitioner, who is a homeowner and member of the association, and the Carter Ranch Homeowners Association, the Respondent. The Petitioner initiated the legal action against the HOA.
2. The Petitioner filed the complaint because the HOA’s president called a special meeting to hold a vote on recalling three recently elected members of the Board of Directors. The Petitioner alleged this action violated A.R.S. § 33-1813, which requires such a recall to be initiated by a petition signed by homeowners.
3. Prior to the March election, reports were made that Roxanne Gould, Steve Brownell, and Trish Brownell were going door-to-door disseminating allegedly false information about the HOA’s finances. They were also accused of “harvesting ballots” from members based on this information.
4. The top three candidates elected on March 20, 2018, were Roxanne Gould with 30 votes, Steve Brownell with 26 votes, and Trish Brownell with 25 votes.
5. Board president Lance Van Horne called the special recall election because he felt the election’s outcome was compromised. He believed the dissemination of allegedly false information and the harvesting of votes by the Brownells and Ms. Gould had tainted the results.
6. In the April 24 recall election, Roxanne Gould survived the recall with 27 votes against to 25 for. Steve Brownell and Trish Brownell were both removed from the board, with 27 votes for their recall and 25 against.
7. The statutes at the center of the dispute were A.R.S. § 33-1813 and A.R.S. § 33-1804. A.R.S. § 33-1813 specifically covers the “Removal of board member; special meeting,” while A.R.S. § 33-1804 is a more general statute concerning “Open meetings.”
8. The HOA argued that A.R.S. § 33-1813 was not the only procedure for calling a recall meeting. It contended that the procedures in the more general statute, A.R.S. § 33-1804, which allows the president to call a special meeting, could also be used.
9. The judge applied the well-established common law principle that when a general statute and a specific statute on the same subject are in conflict, the specific statute controls. Therefore, the specific procedures for recall in A.R.S. § 33-1813 took precedence over the general meeting rules in A.R.S. § 33-1804.
10. The Carter Ranch HOA was ordered to reinstate the removed board members, Steve Brownell and Trish Brownell. The HOA was also ordered to reimburse the Petitioner for his $500.00 single-issue filing fee.
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Essay Questions
1. Trace the complete timeline of events described in the decision, beginning with the failed meeting on February 20, 2018, and concluding with the judge’s final order. For each key date, describe the event that occurred, the people involved, and the outcome of the event.
2. Analyze the conflicting interpretations of Arizona state law presented by the Petitioner and the Respondent. Explain which specific clauses of A.R.S. § 33-1813 and A.R.S. § 33-1804 each party relied upon to justify their position regarding the legality of the April 24, 2018 recall meeting.
3. The decision states that the case presents a “pure legal issue of statutory interpretation.” Explain what this means and how it affects the burden of proof. Describe in detail the canons of statutory construction cited by the judge and how she applied them to rule in favor of the Petitioner.
4. Discuss the role of the allegations of misconduct (disseminating false information and harvesting ballots) against the newly elected board members. How did these allegations act as a catalyst for the recall election, and what was their ultimate relevance (or lack thereof) to the final legal conclusion reached by the Administrative Law Judge?
5. Based on the judge’s “Conclusions of Law,” explain the definitive legal procedure for an HOA in Arizona, with 1,000 or fewer members, to initiate the removal of a board member. Detail the petition requirements, signature thresholds, and meeting notice timelines as established by the controlling statute, A.R.S. § 33-1813.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent official who presides over administrative hearings, hears evidence, and makes legal decisions, in this case, Diane Mihalsky from the Office of Administrative Hearings.
A.R.S.
Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona.
Board of Directors
The governing body of the homeowners’ association, elected by the members.
Burden of Proof
The obligation on a party in a legal case to prove their allegations. In this matter, the Petitioner bore the burden of proof to establish the violation.
De Novo Review
A type of review where a court or judge decides the issues without reference to any legal conclusion or assumption made by the previous party in the case. This was applied because the issue was a pure matter of statutory interpretation.
Department
Refers to the Arizona Department of Real Estate, the state agency authorized to receive and decide on petitions from HOA members.
Evidentiary Standard
The level of proof required to convince the trier of fact. In this case, the standard was a “preponderance of the evidence.”
Homeowners’ Association (HOA)
The organization that governs the Carter Ranch development, of which all lot owners are members.
Office of Administrative Hearings
An independent state agency in Arizona where evidentiary hearings, like the one in this case, are conducted.
Petitioner
The party who initiates a legal action by filing a petition. In this case, it was homeowner Thomas J. Van Dan Elzen.
Preponderance of the Evidence
The standard of proof in which the trier of fact is convinced that a contention is more probably true than not.
Quorum
The minimum number of members of an association that must be present at a meeting for the proceedings of that meeting to be valid. In the March 20 election, the quorum was 47 homeowners.
Recall Election
A special vote held to determine whether to remove an elected official (in this case, board members) from office before the end of their term.
Respondent
The party against whom a petition is filed. In this case, it was the Carter Ranch Homeowners Association.
Special Meeting
A meeting of an association’s members called for a specific purpose outside of the regularly scheduled annual meetings. The April 24 recall vote was a special meeting.
Statutory Construction
The process of interpreting and applying legislation. The judge used common-law canons of statutory construction to resolve the conflict between the two A.R.S. sections.
Blog Post – 18F-H1818042-REL
Majority Rules? Not in This HOA: How One Homeowner Overturned a Recall Election on a Technicality
The Unruly World of Neighborhood Politics
In the world of Homeowners Associations, a majority vote is typically the final word. But for the Carter Ranch HOA, a 27-to-25 recall vote meant to oust two board members became the start of a legal battle, not the end. This case reveals a crucial lesson in community governance: when a board president’s unilateral action clashes with statutory procedure, the will of the majority can be rendered completely irrelevant.
A Democratic Vote Can Be Completely Ignored
On April 24, 2018, the Carter Ranch HOA held a special recall election targeting three recently elected board members: Roxanne Gould, Steve Brownell, and Trish Brownell. A quorum of 52 homeowners participated, and the vote was a split decision. Roxanne Gould survived the recall attempt, with 27 votes against her removal and 25 for it. However, Steve and Trish Brownell were successfully voted off the board by a clear majority of 27 to 25.
The twist came later, in a judge’s chambers. Despite the democratic outcome, an Administrative Law Judge ordered the HOA to reinstate the Brownells. This counter-intuitive decision wasn’t the result of voter fraud or a miscount. The entire election was nullified because of a critical procedural error made by the HOA president before a single ballot was cast.
An HOA President Can’t Unilaterally Oust Board Members
The conflict began after a heated board election on March 20, 2018. The board president at the time, Lance Van Horne, felt the election’s outcome was “compromised.” He believed three newly elected members had won their seats by disseminating “allegedly false information” and “harvesting of votes.”
In response, Mr. Van Horne took decisive action. Believing he was correcting a wrong, he personally called for a special meeting to hold a recall election. This unilateral action became the sole basis for the legal challenge that followed. While the president’s concerns about election integrity were the catalyst for the drama, the court’s subsequent decision would demonstrate that his motives were entirely irrelevant. The only thing that mattered was the procedure he followed—or in this case, failed to follow.
The “Specific Beats General” Rule Is King
The HOA’s legal defense rested on a general statute, A.R.S. § 33-1804, which grants an association’s president the power to call special meetings for various purposes. They argued this general power included the authority to call a recall meeting.
However, the homeowner who challenged the recall pointed to a different, more specific law. A.R.S. § 33-1813 is a statute written exclusively for the purpose of removing board members. This specific law dictates that a recall process can only be initiated upon receipt of a petition signed by a required number of homeowners. The president cannot simply decide to do it alone.
The judge’s decision hinged on a foundational principle of legal interpretation. As cited in the final order:
“When provisions of a general statute are inconsistent with those of a special nature on the same subject, the special statute controls.”
Because the HOA president initiated the recall without first receiving the required petition from the homeowners, he failed to follow the specific procedure mandated by law. As a result, the entire recall election was declared invalid from the start.
One Homeowner Can Successfully Challenge an Entire HOA
This entire case was set in motion not by a group of disgruntled residents, but by a single individual. Homeowner Thomas J. Van Dan Elzen filed a “single-issue petition” with the state, challenging the validity of the president’s action. His understanding of the specific rules governing board member removal proved to be the key that unraveled the HOA’s actions.
The final court order was a complete victory for the petitioner:
• His petition was granted.
• The Carter Ranch HOA was ordered to reinstate the two removed board members, Steve and Trish Brownell.
• The HOA was also ordered to reimburse the petitioner for his $500.00 filing fee.
This outcome serves as an empowering example of how a single member, armed with knowledge of the governing documents and statutes, can hold an association’s leadership accountable and ensure that proper procedures are followed.
Conclusion: Rules, Not Rulers
The Carter Ranch case is a powerful illustration that in community governance, established process is not a technicality—it is the bedrock of legitimacy. The board’s failure to adhere to the specific statute for recalls (A.R.S. § 33-1813) created a fatal procedural flaw that no amount of good intention or majority support could cure. This serves as a stark reminder for all HOA boards: power is derived from the meticulous application of rules, not the perceived authority of rulers. Ignoring this principle doesn’t just invalidate an action; it exposes the association to legal challenges, financial penalties, and a loss of credibility with the community it governs. Do you know the specific rules that govern your own community?
Case Participants
Petitioner Side
Thomas J. Van Dan Elzen(petitioner) Appeared on his own behalf
Respondent Side
Chad M. Gallacher(attorney) Maxwell & Morgan, P.C. Represented Respondent
Mary Chaira(Community Manager) Witness for Respondent
Lance Van Horne(Board President) Called the special recall election which led to the petition,,
Neutral Parties
Diane Mihalsky(ALJ)
Judy Lowe(Commissioner) Arizona Department of Real Estate Received decision
Felicia Del Sol(staff) Transmitted decision
Other Participants
Roxanne Gould(board member) Elected board member; subject of recall attempt,,
Steve Brownell(board member) Elected board member; removed by recall, reinstated by recommended order,,,
Trish Brownell(board member) Elected board member; removed by recall, reinstated by recommended order,,,
The Administrative Law Judge dismissed Petitioner’s petition for rehearing, concluding that the OAH has the authority, pursuant to statute and precedent, to resolve disputes involving the interpretation of condominium documents and related regulating statutes, rejecting Petitioner's constitutional claims regarding separation of powers. Respondent's request for attorney's fees was denied.
Why this result: Petitioner's argument that the original ALJ decision was contrary to law due to separation of powers violation was dismissed, as the OAH confirmed its statutory authority (ARIZ. REV. STAT. § 32-2199.01) to interpret condominium documents and regulating statutes.
Key Issues & Findings
Whether the Respondent Association correctly posted owner assessments for the 2018 parking lot budget
Petitioner sought rehearing arguing the ALJ lacked constitutional authority (separation of powers) to interpret condominium documents (contracts) and statutory definitions of common/limited common elements (ARIZ. REV. STAT. § 33-1202) related to the posting of the 2018 parking lot budget assessment.
Orders: Petitioner’s petition is dismissed. Respondent’s request for attorney’s fees is denied.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 32-2199.01
ARIZ. REV. STAT. § 33-1202
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Ariz. Cannabis Nurses Ass'n v. Ariz. Dep't of Health Servs., 242 Ariz. 62, 67, 392 P.3d 506, 511 (App. 2017)
Analytics Highlights
Topics: HOA Dispute, Assessment, Jurisdiction, ALJ Authority, Condominium Documents, Separation of Powers
Additional Citations:
ARIZ. REV. STAT. § 32-2199.01
ARIZ. REV. STAT. § 33-1202
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Ariz. Cannabis Nurses Ass'n v. Ariz. Dep't of Health Servs., 242 Ariz. 62, 67, 392 P.3d 506, 511 (App. 2017)
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. REV. STAT. § 32-2199.02(B)
ARIZ. CONST. Art. 3
Video Overview
Audio Overview
Decision Documents
18F-H1818032-REL Decision – 636950.pdf
Uploaded 2025-12-09T10:04:20 (128.6 KB)
18F-H1818032-REL Decision – 655375.pdf
Uploaded 2025-10-09T03:32:39 (65.7 KB)
Briefing Doc – 18F-H1818032-REL
Briefing Document: Galassini v. Plaza Waterfront Condominium Owners Association, Inc. (Case No. 18F-H1818032-REL-RHG)
Executive Summary
This document analyzes the Administrative Law Judge (ALJ) Decision in case number 18F-H1818032-REL-RHG, which dismissed a petition filed by Dina R. Galassini against the Plaza Waterfront Condominium Owners Association, Inc. The central conflict revolved around the jurisdictional authority of the Office of Administrative Hearings (OAH). The Petitioner, Ms. Galassini, argued that the OAH, as part of the executive branch, violated the constitutional separation of powers by interpreting private condominium documents, a power she claimed was reserved exclusively for the judicial branch.
The ALJ, Thomas Shedden, rejected this argument and dismissed the petition as a matter of law. The decision affirms that the OAH is statutorily empowered by Arizona Revised Statutes to hear disputes concerning alleged violations of condominium documents. The ALJ’s rationale rests on established legal precedent, citing Tierra Ranchos Homeowners Ass’n v. Kitchukov to confirm that condominium documents are a contract and Ariz. Cannabis Nurses Ass’n v. Ariz. Dep’t of Health Servs. to support an agency’s authority to take actions reasonably implied by its governing statutes. Consequently, the Petitioner’s core constitutional challenge was deemed “unfounded,” leading to the dismissal of her petition. While the petition was dismissed, the Respondent’s request for attorney’s fees was denied.
1. Case Background and Procedural History
The case involves a dispute between a condominium owner and a condominium association, brought before the Arizona Office of Administrative Hearings.
• Parties:
◦ Petitioner: Dina R. Galassini
◦ Respondent: Plaza Waterfront Condominium Owners Association, Inc.
• Forum: Office of Administrative Hearings, Phoenix, Arizona
• Presiding Judge: Thomas Shedden, Administrative Law Judge
• Decision Date: August 22, 2018
The matter arrived before Judge Shedden following a series of procedural steps initiated after an original ALJ decision.
• June 26, 2018: The Petitioner filed a Request for Rehearing with the Department of Real Estate.
• July 20, 2018: The Department of Real Estate issued an Order Granting Rehearing, based on the reasons outlined in the Petitioner’s request.
• August 15, 2018: The Respondent filed a Motion to Vacate Rehearing, arguing the case could be resolved as a matter of law.
• August 21, 2018: The Petitioner filed an Opposition to the Respondent’s motion.
The Petitioner’s request for a rehearing was founded on a direct constitutional challenge to the authority of the Administrative Law Judge. The underlying substantive issue concerned the association’s handling of “owner assessments for the 2018 parking lot budget,” which turned on the interpretation of “common element” versus “limited common element.”
Petitioner’s Arguments
• Violation of Separation of Powers: The Petitioner contended that the original ALJ decision was “contrary to law” because it involved the interpretation of private contracts (the condominium documents). She argued this function is reserved exclusively for the judicial branch under Arizona’s Constitution, Article 3 (Separation of Powers).
• Due Process Violation: By interpreting the contract, the ALJ allegedly committed a “due process violation.” The Petitioner stated, “For the ALJ to definitively interpret actual contracts between two private parties is a due process violation (separation of powers).”
• Improper Delegation of Power: The Petitioner claimed the ALJ’s action “redistributed interpreted power from the Judiciary to the Executive and this is a congressional encroachment on my rights.”
3. The Administrative Law Judge’s Legal Rationale and Decision
The ALJ agreed with the Respondent that the case could be resolved as a matter of law, focusing entirely on the jurisdictional question raised by the Petitioner. The decision systematically refutes the Petitioner’s separation of powers argument by outlining the OAH’s legal authority.
Statutory Authority
The decision establishes the OAH’s jurisdiction through Arizona state law:
• ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11: This statute describes the administrative process for referring disputes between owners and condominium associations to the OAH.
• ARIZ. REV. STAT. § 32-2199.01(A): This section specifically grants the OAH authority to conduct hearings for alleged “violations of condominium documents … or violations of the statutes that regulate condominiums….”
• ARIZ. REV. STAT. § 33-1202: The decision notes that analyzing the Petitioner’s claim inherently requires interpreting definitions found in the statutes that regulate condominiums, such as this section defining “common element” and “limited common element.”
Precedent from Case Law
The ALJ grounded the OAH’s interpretive authority in two key Arizona appellate court decisions:
1. Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007): This case is cited to establish the legal principle that “the condominium documents are a contract between the parties.” By defining the documents as a contract, the decision links the dispute directly to the type of documents the OAH is empowered to review.
2. Ariz. Cannabis Nurses Ass’n v. Ariz. Dep’t of Health Servs., 242 Ariz. 62, 392 P.3d 506 (App. 2017): This case is cited to support the broader principle of administrative authority. The ruling states, “[I]t is the law of this state that an agency may” take such action “which may be reasonably implied from ‘a consideration of the statutory scheme as a whole.’” This supports the conclusion that the OAH’s authority to hear disputes over condominium documents implies the authority to interpret them.
Conclusion of the Court
Based on the cited statutes and case law, the ALJ concluded that the OAH possesses the necessary authority to interpret both the condominium documents and the relevant state statutes. Therefore, the Petitioner’s central argument that the original decision was “contrary to law” was declared “unfounded,” and dismissing the matter was deemed appropriate.
4. Final Orders and Directives
The Administrative Law Judge issued the following final orders on August 22, 2018:
Outcome
Petitioner’s Petition
Dismissed
Respondent’s Request for Attorney’s Fees
Denied
The decision also included the following legally mandated notices for the parties:
• Binding Nature: The order is binding on the parties as a result of the rehearing, per ARIZ. REV. STAT. § 32-2199.02(B).
• Appeal Rights: A party wishing to appeal the order must seek judicial review by filing with the superior court within thirty-five (35) days from the date the order was served. The appeal process is prescribed by ARIZ. REV. STAT. title 12, chapter 7, article 6 and § 12-904(A).
Study Guide – 18F-H1818032-REL
Study Guide: Galassini v. Plaza Waterfront Condominium Owners Association, Inc.
This study guide provides a detailed review of the Administrative Law Judge Decision in case number 18F-H1818032-REL-RHG, issued by the Arizona Office of Administrative Hearings. It is designed to assess comprehension of the case’s key arguments, legal precedents, and procedural history.
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Short-Answer Quiz
Instructions: Answer the following ten questions in two to three complete sentences, using only information provided in the source document.
1. Identify the Petitioner and the Respondent in this case and state the official case number.
2. What was the Petitioner’s core legal argument for requesting a rehearing, as detailed in her filing on June 26, 2018?
3. On what grounds did the Respondent file a Motion to Vacate Rehearing on August 15, 2018?
4. According to the Petitioner’s Response, what was the specific issue that the Department’s Commissioner had ordered the rehearing to address?
5. Which Arizona Revised Statute section is cited as describing the process for hearings on disputes between owners and condominium associations?
6. To resolve the Petitioner’s claim, the Administrative Law Judge (ALJ) needed to interpret the definitions of what two key terms from the Arizona Revised Statutes?
7. What legal precedent was cited in the decision to establish that condominium documents are considered a contract between the parties?
8. What was the final decision issued by Administrative Law Judge Thomas Shedden on August 22, 2018, regarding the Petitioner’s petition and the Respondent’s request for attorney’s fees?
9. According to ARIZ. REV. STAT. section 32-2199.02(B), what is the legal status of an administrative law judge order that has been issued as the result of a rehearing?
10. What specific steps must a party take to appeal this order, including the timeframe and the court where the appeal must be filed?
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Answer Key
1. The Petitioner is Dina R. Galassini, and the Respondent is Plaza Waterfront Condominium Owners Association, Inc. The official case number is 18F-H1818032-REL-RHG.
2. The Petitioner argued that the original Administrative Law Judge’s decision was contrary to law because it violated the principle of separation of powers. She claimed that by interpreting contracts between private parties, the ALJ, part of the Executive branch, encroached upon the power of the Judiciary, resulting in a due process violation.
3. The Respondent argued that the matter could be resolved as a matter of law. This argument was based on ARIZ. REV. STAT. section 32-2199.01, which governs administrative hearings for condominium disputes.
4. The Petitioner asserted in her Response that the Department’s Commissioner had ordered a rehearing specifically on the issue of whether the Respondent Association had correctly posted owner assessments for the 2018 parking lot budget.
5. ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11, specifically section 32-2199.01(A), is cited as governing the process. It states that hearings are conducted for alleged “violations of condominium documents … or violations of the statutes that regulate condominiums.”
6. To analyze the Petitioner’s claim, the ALJ needed to interpret the definitions of “common element” and “limited common element.” These definitions are found in ARIZ. REV. STAT. section 33-1202.
7. The case Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007) was cited to support the legal principle that condominium documents (like CC&Rs) constitute a contract between the parties involved.
8. Administrative Law Judge Thomas Shedden ordered that the Petitioner’s petition be dismissed. He further ordered that the Respondent’s request for attorney’s fees be denied.
9. According to the statute, an administrative law judge order issued as a result of a rehearing is binding on the parties.
10. A party wishing to appeal the order must seek judicial review as prescribed by ARIZ. REV. STAT. title 12, chapter 7, article 6. The appeal must be filed with the superior court within thirty-five days from the date the order was served.
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Essay Questions
Instructions: The following questions are designed for a more in-depth, essay-style response. Answers are not provided.
1. Analyze the Petitioner’s “separation of powers” argument. Explain why she believed the ALJ’s decision constituted a due process violation and a congressional encroachment on her rights, and discuss how the final decision legally refuted this claim.
2. Detail the legal basis and precedents cited by the Administrative Law Judge to establish the authority of the Office of Administrative Hearings (OAH). Explain how ARIZ. REV. STAT. section 32-2199.01(A) and the cases Tierra Ranchos Homeowners Ass’n v. Kitchukov and Ariz. Cannabis Nurses Ass’n v. Ariz. Dep’t of Health Servs. were used to justify the OAH’s jurisdiction in this matter.
3. Trace the procedural history of this case from the Petitioner’s Request for Rehearing to the final Administrative Law Judge Decision. Include key dates, motions filed by both parties, and the reasoning behind the Department of Real Estate’s initial decision to grant a rehearing.
4. Discuss the relationship between condominium documents and state statutes as presented in this decision. How does the ruling define condominium documents, and what authority does it grant the OAH in interpreting both these documents and the statutes that regulate condominiums?
5. Based on the final decision and the provided notice, explain the legal options available to the Petitioner following the dismissal of her petition. What specific steps must be taken to pursue an appeal, and what legal standard is established by ARIZ. REV. STAT. section 32-2199.02(B) regarding the finality of the ALJ’s order?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official who presides over administrative hearings. In this case, Thomas Shedden of the Office of Administrative Hearings.
Common Element
A term defined in ARIZ. REV. STAT. section 33-1202. The interpretation of this term was central to the Petitioner’s original dispute.
Condominium Documents
The governing documents of a condominium association (e.g., CC&Rs). The decision establishes these as a contract between the parties, citing Tierra Ranchos Homeowners Ass’n v. Kitchukov.
Department of Real Estate
The state agency that issued the Order Granting Rehearing in this matter on July 20, 2018.
Due Process Violation
An alleged infringement of legal rights. The Petitioner claimed this occurred when the ALJ interpreted a contract between private parties.
Judicial Review
The legal process by which a party can appeal an administrative order to a court. The decision specifies this must be done by filing with the superior court within 35 days.
Limited Common Element
A term defined in ARIZ. REV. STAT. section 33-1202. The interpretation of this term was central to the Petitioner’s original dispute.
Motion to Vacate Rehearing
A formal request filed by the Respondent on August 15, 2018, arguing that the case could be resolved as a matter of law.
Office of Administrative Hearings (OAH)
The state office where disputes between owners and condominium associations are referred for hearings, as per ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11.
Petitioner
The party initiating a legal petition. In this case, Dina R. Galassini.
Request for Rehearing
A formal request filed by the Petitioner on June 26, 2018, after an initial decision, which was granted by the Department of Real Estate.
Respondent
The party against whom a petition is filed. In this case, Plaza Waterfront Condominium Owners Association, Inc.
Separation of Powers
A constitutional principle cited by the Petitioner. She argued that only the judicial branch, not the executive branch (where the OAH resides), can make decisions that legally bind private parties.
Blog Post – 18F-H1818032-REL
4 Surprising Legal Lessons from a Condo Parking Lot Dispute
Introduction: The Anatomy of a Neighborhood Fight
Disputes with a Condominium or Homeowner’s Association are a common, and often frustrating, part of modern life. But what happens when a seemingly minor conflict over assessments for the 2018 parking lot budget escalates into a direct challenge to the power of the state?
The case of Dina R. Galassini vs. the Plaza Waterfront Condominium Owners Association, Inc. did just that. This neighborhood fight quickly grew to question fundamental legal principles, revealing some counter-intuitive truths about the power and jurisdiction of administrative agencies. The final court decision provides a masterclass in administrative law, a powerful, court-like system designed for efficiency that operates with more flexibility and authority than most people realize. Here are the top surprising takeaways from the final ruling.
Takeaway 1: Administrative Agencies Can Act Like Courts
At the heart of her appeal, Ms. Galassini made a powerful constitutional argument: she believed that only a judge in the judicial branch—not an administrator in the executive branch—had the authority to interpret a private contract like her condominium documents.
In her “Request for Rehearing,” she argued forcefully:
The decision by the administrative law judge (ALJ) is contrary to law, and the decision that was handed down to me only belongs in the judicial branch. Regarding what is a common element or a limited common element (see Exhibit C) should only be decided upon by a judge. For the ALJ to definitively interpret actual contracts between two private parties is a due process violation (separation of powers). In doing so the ALJ redistributed interpreted power from the Judiciary to the Executive and this is a congressional encroachment on my rights. According to Arizona’s Constitution Article 3, Separation of Powers—only the judicial branch can make decisions that make decisions that bind private parties as law.
The surprising outcome was that the Administrative Law Judge (ALJ) rejected this argument entirely. The judge found that the Office of Administrative Hearings was specifically empowered by Arizona statutes (ARIZ. REV. STAT. section 32-2199.01(A)) to handle disputes involving “violations of condominium documents.” Creating specialized administrative bodies like this is a common legislative strategy. It provides expert, efficient resolution for specific types of disputes, preventing the judicial courts from being overwhelmed.
Takeaway 2: Your Condo Agreement is a Legally Binding Contract
The ALJ’s authority to reject such a powerful constitutional claim hinged on a foundational question: what exactly are a condo’s governing documents in the eyes of the law? The answer is what gives administrative bodies their power in these disputes.
The decision affirms that these documents are not just community guidelines, but a formal, legally binding contract between the unit owner and the association. To support this, the judge referenced the legal precedent set in Tierra Ranchos Homeowners Ass’n v. Kitchukov, which established that “the condominium documents are a contract between the parties.”
This is a critical takeaway because by defining these governing documents as a contract, it provides the legal foundation for an administrative body, like the Office of Administrative Hearings, to step in and resolve disputes using principles of contract law.
Takeaway 3: An Agency’s Power Can Be “Reasonably Implied”
Another surprising lesson from the decision is that a government agency’s authority doesn’t always have to be spelled out word-for-word for every possible action it might take.
To make a broader point about administrative law, the judge cited a separate case, Ariz. Cannabis Nurses Ass’n v. Ariz. Dep’t of Health Servs. The principle from that case is that an agency can take actions that “may be reasonably implied from ‘a consideration of the statutory scheme as a whole.’”
This concept is crucial for government to function. Legislatures cannot possibly foresee and explicitly write laws for every conceivable scenario an agency might face. This doctrine of “implied power” allows agencies the flexibility to adapt and act effectively within the spirit of the law, fulfilling their duties based on the overall purpose of the statutes they enforce.
Takeaway 4: Winning a Rehearing Isn’t Winning the War
The case’s procedure offers a fascinating lesson in legal strategy. The Department of Real Estate initially granted the petitioner’s request for a rehearing, a decision made, crucially, “for the reasons outlined in Petitioner’s Request for Rehearing.” This shows the Department initially found her legal argument about separation of powers compelling enough to warrant a second look.
However, the outcome was deeply ironic. Instead of re-arguing the facts, the respondent (the Condo Association) “filed a Motion to Vacate Rehearing, arguing that… this matter can be resolved as a matter of law” (meaning no facts were in dispute, only the interpretation of the statutes and contracts).
The ALJ agreed. The petitioner, by winning the rehearing, had inadvertently given the respondent a perfect platform to argue the case on purely legal grounds—the respondent’s strength. The rehearing forced the core jurisdictional issue to the forefront, leading directly to the dismissal of the petitioner’s case. It’s a stark reminder that a procedural victory doesn’t guarantee a final win.
Conclusion: The Law in Your Daily Life
Born from a dispute over a parking lot, this single case reveals the hidden legal machinery designed to resolve specific conflicts efficiently, without overburdening the traditional court system. It demonstrates how everyday disagreements can touch upon complex principles of constitutional power, contract law, and implied statutory authority. From a simple assessment, we see a system where administrative bodies act with court-like power, a power built upon the contractual nature of community rules and the flexibility of implied authority. It’s a powerful reminder of the intricate legal frameworks operating just beneath the surface of our daily lives.
What hidden legal complexities might be shaping the rules and agreements in your own life?
The Administrative Law Judge dismissed Petitioner’s petition for rehearing, concluding that the OAH has the authority, pursuant to statute and precedent, to resolve disputes involving the interpretation of condominium documents and related regulating statutes, rejecting Petitioner's constitutional claims regarding separation of powers. Respondent's request for attorney's fees was denied.
Why this result: Petitioner's argument that the original ALJ decision was contrary to law due to separation of powers violation was dismissed, as the OAH confirmed its statutory authority (ARIZ. REV. STAT. § 32-2199.01) to interpret condominium documents and regulating statutes.
Key Issues & Findings
Whether the Respondent Association correctly posted owner assessments for the 2018 parking lot budget
Petitioner sought rehearing arguing the ALJ lacked constitutional authority (separation of powers) to interpret condominium documents (contracts) and statutory definitions of common/limited common elements (ARIZ. REV. STAT. § 33-1202) related to the posting of the 2018 parking lot budget assessment.
Orders: Petitioner’s petition is dismissed. Respondent’s request for attorney’s fees is denied.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 32-2199.01
ARIZ. REV. STAT. § 33-1202
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Ariz. Cannabis Nurses Ass'n v. Ariz. Dep't of Health Servs., 242 Ariz. 62, 67, 392 P.3d 506, 511 (App. 2017)
Analytics Highlights
Topics: HOA Dispute, Assessment, Jurisdiction, ALJ Authority, Condominium Documents, Separation of Powers
Additional Citations:
ARIZ. REV. STAT. § 32-2199.01
ARIZ. REV. STAT. § 33-1202
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Ariz. Cannabis Nurses Ass'n v. Ariz. Dep't of Health Servs., 242 Ariz. 62, 67, 392 P.3d 506, 511 (App. 2017)
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. REV. STAT. § 32-2199.02(B)
ARIZ. CONST. Art. 3
Audio Overview
Decision Documents
18F-H1818032-REL Decision – 655375.pdf
Uploaded 2025-10-08T07:05:06 (65.7 KB)
Briefing Doc – 18F-H1818032-REL
Briefing Document: Galassini v. Plaza Waterfront Condominium Owners Association, Inc. (Case No. 18F-H1818032-REL-RHG)
Executive Summary
This document analyzes the Administrative Law Judge (ALJ) Decision in case number 18F-H1818032-REL-RHG, which dismissed a petition filed by Dina R. Galassini against the Plaza Waterfront Condominium Owners Association, Inc. The central conflict revolved around the jurisdictional authority of the Office of Administrative Hearings (OAH). The Petitioner, Ms. Galassini, argued that the OAH, as part of the executive branch, violated the constitutional separation of powers by interpreting private condominium documents, a power she claimed was reserved exclusively for the judicial branch.
The ALJ, Thomas Shedden, rejected this argument and dismissed the petition as a matter of law. The decision affirms that the OAH is statutorily empowered by Arizona Revised Statutes to hear disputes concerning alleged violations of condominium documents. The ALJ’s rationale rests on established legal precedent, citing Tierra Ranchos Homeowners Ass’n v. Kitchukov to confirm that condominium documents are a contract and Ariz. Cannabis Nurses Ass’n v. Ariz. Dep’t of Health Servs. to support an agency’s authority to take actions reasonably implied by its governing statutes. Consequently, the Petitioner’s core constitutional challenge was deemed “unfounded,” leading to the dismissal of her petition. While the petition was dismissed, the Respondent’s request for attorney’s fees was denied.
1. Case Background and Procedural History
The case involves a dispute between a condominium owner and a condominium association, brought before the Arizona Office of Administrative Hearings.
• Parties:
◦ Petitioner: Dina R. Galassini
◦ Respondent: Plaza Waterfront Condominium Owners Association, Inc.
• Forum: Office of Administrative Hearings, Phoenix, Arizona
• Presiding Judge: Thomas Shedden, Administrative Law Judge
• Decision Date: August 22, 2018
The matter arrived before Judge Shedden following a series of procedural steps initiated after an original ALJ decision.
• June 26, 2018: The Petitioner filed a Request for Rehearing with the Department of Real Estate.
• July 20, 2018: The Department of Real Estate issued an Order Granting Rehearing, based on the reasons outlined in the Petitioner’s request.
• August 15, 2018: The Respondent filed a Motion to Vacate Rehearing, arguing the case could be resolved as a matter of law.
• August 21, 2018: The Petitioner filed an Opposition to the Respondent’s motion.
The Petitioner’s request for a rehearing was founded on a direct constitutional challenge to the authority of the Administrative Law Judge. The underlying substantive issue concerned the association’s handling of “owner assessments for the 2018 parking lot budget,” which turned on the interpretation of “common element” versus “limited common element.”
Petitioner’s Arguments
• Violation of Separation of Powers: The Petitioner contended that the original ALJ decision was “contrary to law” because it involved the interpretation of private contracts (the condominium documents). She argued this function is reserved exclusively for the judicial branch under Arizona’s Constitution, Article 3 (Separation of Powers).
• Due Process Violation: By interpreting the contract, the ALJ allegedly committed a “due process violation.” The Petitioner stated, “For the ALJ to definitively interpret actual contracts between two private parties is a due process violation (separation of powers).”
• Improper Delegation of Power: The Petitioner claimed the ALJ’s action “redistributed interpreted power from the Judiciary to the Executive and this is a congressional encroachment on my rights.”
3. The Administrative Law Judge’s Legal Rationale and Decision
The ALJ agreed with the Respondent that the case could be resolved as a matter of law, focusing entirely on the jurisdictional question raised by the Petitioner. The decision systematically refutes the Petitioner’s separation of powers argument by outlining the OAH’s legal authority.
Statutory Authority
The decision establishes the OAH’s jurisdiction through Arizona state law:
• ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11: This statute describes the administrative process for referring disputes between owners and condominium associations to the OAH.
• ARIZ. REV. STAT. § 32-2199.01(A): This section specifically grants the OAH authority to conduct hearings for alleged “violations of condominium documents … or violations of the statutes that regulate condominiums….”
• ARIZ. REV. STAT. § 33-1202: The decision notes that analyzing the Petitioner’s claim inherently requires interpreting definitions found in the statutes that regulate condominiums, such as this section defining “common element” and “limited common element.”
Precedent from Case Law
The ALJ grounded the OAH’s interpretive authority in two key Arizona appellate court decisions:
1. Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007): This case is cited to establish the legal principle that “the condominium documents are a contract between the parties.” By defining the documents as a contract, the decision links the dispute directly to the type of documents the OAH is empowered to review.
2. Ariz. Cannabis Nurses Ass’n v. Ariz. Dep’t of Health Servs., 242 Ariz. 62, 392 P.3d 506 (App. 2017): This case is cited to support the broader principle of administrative authority. The ruling states, “[I]t is the law of this state that an agency may” take such action “which may be reasonably implied from ‘a consideration of the statutory scheme as a whole.’” This supports the conclusion that the OAH’s authority to hear disputes over condominium documents implies the authority to interpret them.
Conclusion of the Court
Based on the cited statutes and case law, the ALJ concluded that the OAH possesses the necessary authority to interpret both the condominium documents and the relevant state statutes. Therefore, the Petitioner’s central argument that the original decision was “contrary to law” was declared “unfounded,” and dismissing the matter was deemed appropriate.
4. Final Orders and Directives
The Administrative Law Judge issued the following final orders on August 22, 2018:
Outcome
Petitioner’s Petition
Dismissed
Respondent’s Request for Attorney’s Fees
Denied
The decision also included the following legally mandated notices for the parties:
• Binding Nature: The order is binding on the parties as a result of the rehearing, per ARIZ. REV. STAT. § 32-2199.02(B).
• Appeal Rights: A party wishing to appeal the order must seek judicial review by filing with the superior court within thirty-five (35) days from the date the order was served. The appeal process is prescribed by ARIZ. REV. STAT. title 12, chapter 7, article 6 and § 12-904(A).
The Administrative Law Judge granted the Petitioner's request for relief, finding that the Respondent HOA violated ARIZ. REV. STAT. section 33-1804(F) by failing to provide adequate notice and agenda information regarding the proposed CC&R amendment to prohibit short term rentals. The Respondent was ordered to pay the filing fee to the Petitioner.
Key Issues & Findings
Violation of open meeting and notice requirements regarding CC&R amendment
The Board violated ARIZ. REV. STAT. section 33-1804(F) when it failed to provide notice or an agenda to all of its members of information that was reasonably necessary to inform the members that an amendment to the CC&Rs to prohibit short term members would be discussed at its special board of directors meetings held on November 8, 2017 and November 20, 2017.
Orders: Petitioner's petition was granted. Respondent was ordered to pay Petitioner the filing fee required by ARIZ. REV. STAT. section 32-2199.01.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
ARIZ. REV. STAT. section 33-1804
ARIZ. REV. STAT. section 33-1804(B)
ARIZ. REV. STAT. section 33-1804(E)(1)
ARIZ. REV. STAT. section 33-1804(F)
ARIZ. REV. STAT. section 41-2198.01
ARIZ. REV. STAT. section 32-2199.02(A)
ARIZ. REV. STAT. section 32-2199.01
Analytics Highlights
Topics: Open Meetings, HOA Governance, Notice Requirements, CC&R Amendment, Short Term Rentals
Additional Citations:
ARIZ. REV. STAT. section 33-1804
ARIZ. REV. STAT. section 33-1804(B)
ARIZ. REV. STAT. section 33-1804(E)(1)
ARIZ. REV. STAT. section 33-1804(F)
ARIZ. REV. STAT. section 41-2198.01
ARIZ. REV. STAT. section 32-2199.02(A)
ARIZ. REV. STAT. section 32-2199.01
Video Overview
Audio Overview
Decision Documents
18F-H1817020-REL Decision – 629473.pdf
Uploaded 2025-10-09T03:32:20 (46.2 KB)
18F-H1817020-REL Decision – 629515.pdf
Uploaded 2025-10-09T03:32:20 (51.9 KB)
18F-H1817020-REL Decision – 636989.pdf
Uploaded 2025-10-09T03:32:20 (139.8 KB)
Briefing Doc – 18F-H1817020-REL
Administrative Law Judge Decision Briefing: Smith vs. Desert Isle Homeowners Association, Inc.
Executive Summary
This document provides a comprehensive analysis of the legal dispute between Petitioner Lewis Smith and Respondent Desert Isle Homeowners Association, Inc. The core of the case revolves around allegations that the HOA’s Board of Directors violated Arizona’s open meeting laws.
The Administrative Law Judge (ALJ) ultimately ruled in favor of the Petitioner, finding that the Desert Isle HOA violated ARIZ. REV. STAT. § 33-1804(F). The decision established that the Board failed to provide its members with agendas containing information “reasonably necessary to inform the members” about discussions concerning a proposed amendment to the Covenants, Conditions, and Restrictions (CC&Rs) that would prohibit short-term rentals. This failure occurred during Board of Directors meetings held on November 8 and November 20, 2017.
As a result of this finding, the Petitioner’s petition was granted, and the Respondent was ordered to pay the Petitioner’s filing fee. The ruling underscores the state’s policy that planned community meetings must be conducted with transparency, and agendas must provide sufficient detail for members to understand the matters to be discussed or decided.
Case Overview
Case Number
18F-H1817020-REL
Tribunal
Office of Administrative Hearings (Phoenix, Arizona)
Petitioner
Lewis Smith
Respondent
Desert Isle Homeowners Association, Inc.
Administrative Law Judge
Velva Moses-Thompson
Hearing Date
April 16, 2018
Decision Date
May 29, 2018
Central Allegation
On or about December 5, 2017, Petitioner Lewis Smith filed a petition with the Arizona Department of Real Estate alleging that the Desert Isle HOA violated ARIZ. REV. STAT. § 33-1804. The petition contended that the Board of Directors discussed and advanced a significant CC&R amendment without proper notification to the association members.
The petition states, in part:
“All Board members have been meeting to discuss and add an amendment to the CC&R’s [sic] Prohibiting short term renters. These meetings have not been conducted openly and no notice or agenda were provided containing information necessary to inform members of the association of the matters to be discussed… At no time was the issue to add an amendment for short term rentals properly noticed or on an agenda for discussion before it became a ballot vote.”
Chronology of Events
October 23, 2017:
• Lewis Smith, William H. Winn, Kevin Barnett, and Chester Jay submit a formal request to the Board for a special members’ meeting.
• The stated purposes of the meeting were to:
1. Select and fund an attorney to update the HOA’s bylaws and CC&Rs to comply with current Arizona law.
2. Discuss obtaining a reserve study for the association’s capital needs.
3. Discuss a separate attorney letter regarding HOA governance.
October 24, 2017:
• Board President Doug Robinson responds to the request, expressing support for a meeting but stating that more than 30 days would be needed to gather supporting documentation.
October 31, 2017:
• A second group of homeowners, including Board members Greg Yacoubian, Doug Robinson, Curt Carlson, and Mike Andrews, submits a request to add an item to the agenda of the forthcoming special meeting.
• Their request was to “amend the CC&Rs by adding a section prohibiting ‘Short Term Rentals’ and defining minimum time allowed for Rentals.”
November 5, 2017:
• The Board provides an agenda for a Board of Directors meeting scheduled for November 8, 2017. The agenda did not include any item related to the proposed amendment to prohibit short-term rentals.
November 8, 2017:
• The Board of Directors meeting is held.
• The Board votes to call a special members’ meeting before November 23, 2017, to address the two petitions.
• During the “BOARD INPUT” section, member Curt Carlson “spoke of past issues about short term renting,” but this was not a formal agenda item for discussion or action.
November 10, 2017:
• The Board emails Lewis Smith, acknowledging his petition and requesting a “narrative explanation from you on each of your subjects” by November 17, 2017, to prepare the meeting information package for all homeowners.
November 18, 2017:
• The Board sends an agenda for another Board of Directors meeting scheduled for November 20, 2017.
• The agenda lists “Review/approval of special meeting mailing package” as a topic but provides no specific details regarding the proposed amendment on short-term rentals.
December 1, 2017:
• Board President Doug Robinson emails all homeowners to explain the upcoming special meeting on December 16, 2017.
• The email states: “To avoid cost and time we put both petitions together and are having one meeting that will required [sic] all owners to vote for or against these two petitions.”
• The agenda for the December 16 meeting is attached, which explicitly lists a vote on prohibiting short-term rentals.
December 16, 2017:
• The special members’ meeting is held. A vote is taken on the proposed amendment to prohibit short-term rentals.
• Vote Result: 9 homeowners in favor, 6 homeowners against.
Legal Framework and Analysis
The case centered on the interpretation and application of Arizona Revised Statutes related to planned communities.
Key Statute: ARIZ. REV. STAT. § 33-1804
This statute governs meetings and notices for planned communities. The judge’s decision rested heavily on the policy outlined in subsection (F).
• § 33-1804(B): Requires that notice for any special meeting of members must state the purpose, including “the general nature of any proposed amendment to the declaration or bylaws.”
• § 33-1804(E)(1): Requires that the agenda for a Board of Directors meeting be made available to all members in attendance.
• § 33-1804(F): This subsection contains the state’s declaration of policy, which was central to the judge’s conclusion. It states:
Burden of Proof
The Petitioner, Lewis Smith, bore the burden of proving that the Respondent violated the statute by a “preponderance of the evidence.” This standard is defined as evidence that is sufficient “to incline a fair and impartial mind to one side of the issue rather than the other.”
Findings and Conclusion of the Court
The Administrative Law Judge found that the Petitioner successfully met the burden of proof. The decision concludes that the agendas for the November 8 and November 20 Board of Directors meetings were legally insufficient.
Conclusion of Law #4:
“Petitioner established by a preponderance of the evidence that the Board violated ARIZ. REV. STAT. section 33-1804(F) when it failed to provide notice or an agenda to all of its members of information that was reasonably necessary to inform the members that an amendment to the CC&Rs to prohibit short term members would be discussed at its special board of directors meetings held on November 8, 2017 and November 20, 2017.”
Final Order
• The Petitioner’s petition in the matter was granted.
• Pursuant to ARIZ. REV. STAT. § 32-2199.02(A), the Respondent (Desert Isle HOA) was ordered to pay the Petitioner the filing fee.
• The Order is legally binding unless a rehearing is requested with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
Parties and Legal Representation
Address
Legal Counsel
Petitioner
Lewis Smith 5459 E. Sorrento Dr. Long Beach, CA 90803
Mark J. Bainbridge, Esq. The Bainbridge Law Firm LLC 2122 E. Highland Ave. Ste. 250 Phoenix, AZ 85016-4779
Respondent
Desert Isle Homeowners Association, Inc. 411 Riverfront Dr. #7 Bullhead City, AZ 86442
William D. Condray, Esq. 2031 Highway 95 Ste. 2 Bullhead City, AZ 86442-6004
Study Guide – 18F-H1817020-REL
Study Guide: Smith v. Desert Isle Homeowners Association, Inc.
This guide provides a detailed review of the administrative case No. 18F-H1817020-REL between Petitioner Lewis Smith and Respondent Desert Isle Homeowners Association, Inc. It includes a short-answer quiz, an answer key, suggested essay questions, and a comprehensive glossary of key terms and entities involved in the matter.
Short-Answer Quiz
Answer the following questions in 2-3 sentences based on the information provided in the case documents.
1. Who are the primary parties in case No. 18F-H1817020-REL, and who represented them legally?
2. What was the three-part purpose of the special meeting requested by Lewis Smith and other homeowners on October 23, 2017?
3. A second petition was submitted on October 31, 2017. What was its purpose and who were the petitioners?
4. What key actions were taken regarding officers and a special meeting during the Board of Directors meeting on November 8, 2017?
5. What did the Desert Isle HOA Board demand from Lewis Smith in its email on November 10, 2017, to proceed with the special meeting?
6. What was the central allegation Lewis Smith made in his petition to the Arizona Department of Real Estate on December 5, 2017?
7. What was the outcome of the vote on the proposed amendment to prohibit short-term rentals at the December 16, 2017 special meeting?
8. Which specific section of the Arizona Revised Statutes did the Administrative Law Judge find the Board had violated?
9. According to the case documents, what is the definition of “preponderance of the evidence”?
10. What was the final ruling issued by Administrative Law Judge Velva Moses-Thompson on May 29, 2018?
Answer Key
1. The primary parties were the Petitioner, Lewis Smith, and the Respondent, Desert Isle Homeowners Association, Inc. Lewis Smith was represented by Mark J. Bainbridge, Esq., and the Desert Isle HOA was represented by William D. Condray, Esq.
2. The purpose of the meeting was threefold: to select and fund an attorney to update the HOA’s bylaws and CC&Rs to comply with current Arizona law; to discuss obtaining a reserve study for the association’s capital needs; and to discuss an attorney letter regarding HOA governance.
3. Greg Yacoubian, Doug Robinson, Curt Carlson, and Mike Andrews submitted a request to amend the CC&Rs by adding a section to prohibit “Short Term Rentals.” They requested this subject be added to the agenda of the special meeting already requested by Lewis Smith’s group to save time and money.
4. At the November 8, 2017 meeting, a motion passed unanimously to remove the existing VP, treasurer, and secretary. New officers and assistants were elected, and another motion passed to call the special meeting requested by the two groups of owners before November 23, 2017.
5. The Board requested a “narrative explanation” from Lewis Smith for each of his proposed subjects. The Board stated it would expect four narratives plus any referenced attorney engagement letters and needed the materials by November 17, 2017, to prepare the special meeting package.
6. Lewis Smith alleged that the Desert Isle HOA Board members met to discuss and add an amendment prohibiting short-term rentals without conducting the meetings openly. He stated that no proper notice or agenda was provided to inform members of the matters to be discussed before the issue became a ballot vote.
7. At the December 16, 2017 meeting, the proposed amendment to prohibit short-term rentals was voted on by homeowners. Nine homeowners voted in favor of the amendment, and six homeowners voted against it.
8. The Judge found that the Board violated ARIZ. REV. STAT. section 33-1804(F). The violation occurred when the Board failed to provide an agenda with information reasonably necessary to inform members that an amendment to the CC&Rs prohibiting short-term rentals would be discussed at the board meetings on November 8 and November 20, 2017.
9. The documents provide two definitions. The first is “such proof as convinces the trier of fact that the contention is more probably true than not.” The second, from Black’s Law Dictionary, is “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
10. The Administrative Law Judge granted the Petitioner’s petition. The Judge’s order required the Respondent (Desert Isle HOA) to pay the Petitioner the filing fee required by statute.
Essay Questions
1. Construct a detailed timeline of events from the initial petition by Lewis Smith on October 23, 2017, to the final Administrative Law Judge Decision on May 29, 2018. Include all key meetings, communications, and legal filings mentioned in the documents.
2. Analyze the ways in which the Desert Isle Homeowners Association Board failed to comply with the open meeting policies outlined in ARIZ. REV. STAT. section 33-1804. Use specific examples from the meeting agendas and communications to support the analysis.
3. Discuss the concept of “burden of proof” as it applies to this case. Explain who held the burden of proof for the violation and any affirmative defenses, and how the “preponderance of the evidence” standard was met by the Petitioner.
4. Compare and contrast the two petitions submitted by homeowners in October 2017. Evaluate how the Board handled each request and the procedural steps it took that ultimately led to the legal dispute.
5. Based on the findings of fact, evaluate the communication between the Desert Isle HOA Board and its members. Discuss the effectiveness and legality of the Board’s notices, agendas, and email correspondence regarding the special meeting and the proposed CC&R amendment.
Glossary of Key Terms
Term / Entity
Definition
Administrative Law Judge (ALJ)
The official who presides over administrative hearings, in this case, Velva Moses-Thompson. The ALJ hears evidence and issues a decision based on findings of fact and conclusions of law.
ARIZ. REV. STAT. section 33-1804
An Arizona state statute governing meetings in planned communities. It requires open meetings, proper notice to members (between 10 and 50 days prior), and agendas that are reasonably necessary to inform members of matters to be discussed or decided.
ARIZ. REV. STAT. section 41-2198.01
An Arizona state statute that permits an owner or planned community organization to file a petition with the Department of Real Estate for a hearing concerning violations of community documents or relevant statutes.
Board of Directors (Board)
The governing body of the Desert Isle Homeowners Association, Inc. At the time of the events, key members included Doug Robinson (President), Curt Carlson, and Mike Andrews.
Burden of Proof
The obligation to prove one’s assertion. In this case, the Petitioner bore the burden of proof to establish the violation, and the Respondent bore the burden for any affirmative defenses.
CC&Rs (Covenants, Conditions, and Restrictions)
The governing documents of the Desert Isle planned community. The petitions submitted by homeowners sought to amend these documents.
Desert Isle Homeowners Association, Inc.
The Respondent in the case; the planned community organization and non-profit corporation responsible for managing the Desert Isle community.
Lewis Smith
The Petitioner in the case; a homeowner in the Desert Isle community who filed a petition against the HOA.
Notice of Hearing
A formal notification issued by the Department of Real Estate setting the date and location for an administrative hearing. In this case, it was issued on January 22, 2018.
Office of Administrative Hearings
The state tribunal where the hearing for this case was conducted.
Petitioner
The party who files a petition initiating a legal action. In this case, Lewis Smith.
Post-hearing Briefs
Written legal arguments submitted by parties after a hearing has concluded. The record in this case was held open until May 9, 2018, to receive these briefs.
Preponderance of the Evidence
The standard of proof required in this administrative hearing. It is defined as evidence that is sufficient to convince the trier of fact that a contention is more probably true than not.
Reserve Study
A study to determine an association’s long-term capital needs for its common areas. Lewis Smith’s petition requested a discussion about obtaining one.
Respondent
The party against whom a petition is filed. In this case, Desert Isle Homeowners Association, Inc.
Special Meeting
A meeting of association members called for a specific purpose outside of regularly scheduled meetings. Both petitions in this case requested a special meeting.
Blog Post – 18F-H1817020-REL
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629473.pdf
629515.pdf
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18F-H1817020-REL
3 sources
The provided documents are related to a legal dispute between Lewis Smith and the Desert Isle Homeowners Association, Inc., heard by the Office of Administrative Hearings. The first two sources, 629473.pdf and 629515.pdf, are identical “Order Holding Record Open” documents dated April 18, 2018, which mandated that the parties submit post-hearing briefs by specific deadlines and required the Homeowners Association to clarify its objection to a specific exhibit. The final source, 636989.pdf, is the “Administrative Law Judge Decision” issued on May 29, 2018, which found that the Homeowners Association violated Arizona law by failing to properly inform members that they would be discussing a proposed amendment to prohibit short-term rentals at two special board meetings. Ultimately, the judge granted Lewis Smith’s petition and ordered the Homeowners Association to pay the required filing fee.
Based on 3 sources
Case Participants
Petitioner Side
Lewis Smith(petitioner)
Mark J. Bainbridge(petitioner attorney) The Bainbridge Law Firm LLC
William H. Winn(homeowner) Submitted petition with Petitioner
Kevin Barnett(homeowner) Submitted petition with Petitioner
Chester Jay(homeowner) Submitted petition with Petitioner
Mike Sharp(homeowner/representative) Representative for Kevin Barnett
Kim Sharp(homeowner/representative) Representative for Kevin Barnett
Respondent Side
William D. Condray(respondent attorney)
Doug Robinson(board member) Desert Isle Homeowners Association, Inc. Board President
Curt Carlson(board member) Desert Isle Homeowners Association, Inc.
Mike Andrews(board member) Desert Isle Homeowners Association, Inc.
Greg Yacoubian(homeowner/board member) Desert Isle Homeowners Association, Inc. Replaced Mike Andrews on 11/20/17
Judy Carlson(HOA officer) Desert Isle Homeowners Association, Inc. Treasurer
Terri Robinson(HOA officer) Desert Isle Homeowners Association, Inc. Secretary
Jamie Kelly(HOA attorney) Consulted on Special Meeting package
Neutral Parties
Velva Moses-Thompson(ALJ)
Judy Lowe(Commissioner) Arizona Department of Real Estate
M.Aguirre(Clerk/Admin) Transmitting agent
LDettorre(ADRE Staff) ADRE Recipient of transmission
AHansen(ADRE Staff) ADRE Recipient of transmission
djones(ADRE Staff) ADRE Recipient of transmission
DGardner(ADRE Staff) ADRE Recipient of transmission
The Administrative Law Judge granted the Petitioner's request for relief, finding that the Respondent HOA violated ARIZ. REV. STAT. section 33-1804(F) by failing to provide adequate notice and agenda information regarding the proposed CC&R amendment to prohibit short term rentals. The Respondent was ordered to pay the filing fee to the Petitioner.
Key Issues & Findings
Violation of open meeting and notice requirements regarding CC&R amendment
The Board violated ARIZ. REV. STAT. section 33-1804(F) when it failed to provide notice or an agenda to all of its members of information that was reasonably necessary to inform the members that an amendment to the CC&Rs to prohibit short term members would be discussed at its special board of directors meetings held on November 8, 2017 and November 20, 2017.
Orders: Petitioner's petition was granted. Respondent was ordered to pay Petitioner the filing fee required by ARIZ. REV. STAT. section 32-2199.01.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
ARIZ. REV. STAT. section 33-1804
ARIZ. REV. STAT. section 33-1804(B)
ARIZ. REV. STAT. section 33-1804(E)(1)
ARIZ. REV. STAT. section 33-1804(F)
ARIZ. REV. STAT. section 41-2198.01
ARIZ. REV. STAT. section 32-2199.02(A)
ARIZ. REV. STAT. section 32-2199.01
Analytics Highlights
Topics: Open Meetings, HOA Governance, Notice Requirements, CC&R Amendment, Short Term Rentals
Additional Citations:
ARIZ. REV. STAT. section 33-1804
ARIZ. REV. STAT. section 33-1804(B)
ARIZ. REV. STAT. section 33-1804(E)(1)
ARIZ. REV. STAT. section 33-1804(F)
ARIZ. REV. STAT. section 41-2198.01
ARIZ. REV. STAT. section 32-2199.02(A)
ARIZ. REV. STAT. section 32-2199.01
Video Overview
Audio Overview
Decision Documents
18F-H1817020-REL Decision – 629473.pdf
Uploaded 2026-01-23T17:22:47 (46.2 KB)
18F-H1817020-REL Decision – 629515.pdf
Uploaded 2026-01-23T17:22:50 (51.9 KB)
18F-H1817020-REL Decision – 636989.pdf
Uploaded 2026-01-23T17:22:54 (139.8 KB)
Briefing Doc – 18F-H1817020-REL
Administrative Law Judge Decision Briefing: Smith vs. Desert Isle Homeowners Association, Inc.
Executive Summary
This document provides a comprehensive analysis of the legal dispute between Petitioner Lewis Smith and Respondent Desert Isle Homeowners Association, Inc. The core of the case revolves around allegations that the HOA’s Board of Directors violated Arizona’s open meeting laws.
The Administrative Law Judge (ALJ) ultimately ruled in favor of the Petitioner, finding that the Desert Isle HOA violated ARIZ. REV. STAT. § 33-1804(F). The decision established that the Board failed to provide its members with agendas containing information “reasonably necessary to inform the members” about discussions concerning a proposed amendment to the Covenants, Conditions, and Restrictions (CC&Rs) that would prohibit short-term rentals. This failure occurred during Board of Directors meetings held on November 8 and November 20, 2017.
As a result of this finding, the Petitioner’s petition was granted, and the Respondent was ordered to pay the Petitioner’s filing fee. The ruling underscores the state’s policy that planned community meetings must be conducted with transparency, and agendas must provide sufficient detail for members to understand the matters to be discussed or decided.
Case Overview
Case Number
18F-H1817020-REL
Tribunal
Office of Administrative Hearings (Phoenix, Arizona)
Petitioner
Lewis Smith
Respondent
Desert Isle Homeowners Association, Inc.
Administrative Law Judge
Velva Moses-Thompson
Hearing Date
April 16, 2018
Decision Date
May 29, 2018
Central Allegation
On or about December 5, 2017, Petitioner Lewis Smith filed a petition with the Arizona Department of Real Estate alleging that the Desert Isle HOA violated ARIZ. REV. STAT. § 33-1804. The petition contended that the Board of Directors discussed and advanced a significant CC&R amendment without proper notification to the association members.
The petition states, in part:
“All Board members have been meeting to discuss and add an amendment to the CC&R’s [sic] Prohibiting short term renters. These meetings have not been conducted openly and no notice or agenda were provided containing information necessary to inform members of the association of the matters to be discussed… At no time was the issue to add an amendment for short term rentals properly noticed or on an agenda for discussion before it became a ballot vote.”
Chronology of Events
October 23, 2017:
• Lewis Smith, William H. Winn, Kevin Barnett, and Chester Jay submit a formal request to the Board for a special members’ meeting.
• The stated purposes of the meeting were to:
1. Select and fund an attorney to update the HOA’s bylaws and CC&Rs to comply with current Arizona law.
2. Discuss obtaining a reserve study for the association’s capital needs.
3. Discuss a separate attorney letter regarding HOA governance.
October 24, 2017:
• Board President Doug Robinson responds to the request, expressing support for a meeting but stating that more than 30 days would be needed to gather supporting documentation.
October 31, 2017:
• A second group of homeowners, including Board members Greg Yacoubian, Doug Robinson, Curt Carlson, and Mike Andrews, submits a request to add an item to the agenda of the forthcoming special meeting.
• Their request was to “amend the CC&Rs by adding a section prohibiting ‘Short Term Rentals’ and defining minimum time allowed for Rentals.”
November 5, 2017:
• The Board provides an agenda for a Board of Directors meeting scheduled for November 8, 2017. The agenda did not include any item related to the proposed amendment to prohibit short-term rentals.
November 8, 2017:
• The Board of Directors meeting is held.
• The Board votes to call a special members’ meeting before November 23, 2017, to address the two petitions.
• During the “BOARD INPUT” section, member Curt Carlson “spoke of past issues about short term renting,” but this was not a formal agenda item for discussion or action.
November 10, 2017:
• The Board emails Lewis Smith, acknowledging his petition and requesting a “narrative explanation from you on each of your subjects” by November 17, 2017, to prepare the meeting information package for all homeowners.
November 18, 2017:
• The Board sends an agenda for another Board of Directors meeting scheduled for November 20, 2017.
• The agenda lists “Review/approval of special meeting mailing package” as a topic but provides no specific details regarding the proposed amendment on short-term rentals.
December 1, 2017:
• Board President Doug Robinson emails all homeowners to explain the upcoming special meeting on December 16, 2017.
• The email states: “To avoid cost and time we put both petitions together and are having one meeting that will required [sic] all owners to vote for or against these two petitions.”
• The agenda for the December 16 meeting is attached, which explicitly lists a vote on prohibiting short-term rentals.
December 16, 2017:
• The special members’ meeting is held. A vote is taken on the proposed amendment to prohibit short-term rentals.
• Vote Result: 9 homeowners in favor, 6 homeowners against.
Legal Framework and Analysis
The case centered on the interpretation and application of Arizona Revised Statutes related to planned communities.
Key Statute: ARIZ. REV. STAT. § 33-1804
This statute governs meetings and notices for planned communities. The judge’s decision rested heavily on the policy outlined in subsection (F).
• § 33-1804(B): Requires that notice for any special meeting of members must state the purpose, including “the general nature of any proposed amendment to the declaration or bylaws.”
• § 33-1804(E)(1): Requires that the agenda for a Board of Directors meeting be made available to all members in attendance.
• § 33-1804(F): This subsection contains the state’s declaration of policy, which was central to the judge’s conclusion. It states:
Burden of Proof
The Petitioner, Lewis Smith, bore the burden of proving that the Respondent violated the statute by a “preponderance of the evidence.” This standard is defined as evidence that is sufficient “to incline a fair and impartial mind to one side of the issue rather than the other.”
Findings and Conclusion of the Court
The Administrative Law Judge found that the Petitioner successfully met the burden of proof. The decision concludes that the agendas for the November 8 and November 20 Board of Directors meetings were legally insufficient.
Conclusion of Law #4:
“Petitioner established by a preponderance of the evidence that the Board violated ARIZ. REV. STAT. section 33-1804(F) when it failed to provide notice or an agenda to all of its members of information that was reasonably necessary to inform the members that an amendment to the CC&Rs to prohibit short term members would be discussed at its special board of directors meetings held on November 8, 2017 and November 20, 2017.”
Final Order
• The Petitioner’s petition in the matter was granted.
• Pursuant to ARIZ. REV. STAT. § 32-2199.02(A), the Respondent (Desert Isle HOA) was ordered to pay the Petitioner the filing fee.
• The Order is legally binding unless a rehearing is requested with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
Parties and Legal Representation
Address
Legal Counsel
Petitioner
Lewis Smith 5459 E. Sorrento Dr. Long Beach, CA 90803
Mark J. Bainbridge, Esq. The Bainbridge Law Firm LLC 2122 E. Highland Ave. Ste. 250 Phoenix, AZ 85016-4779
Respondent
Desert Isle Homeowners Association, Inc. 411 Riverfront Dr. #7 Bullhead City, AZ 86442
William D. Condray, Esq. 2031 Highway 95 Ste. 2 Bullhead City, AZ 86442-6004
Study Guide – 18F-H1817020-REL
Study Guide: Smith v. Desert Isle Homeowners Association, Inc.
This guide provides a detailed review of the administrative case No. 18F-H1817020-REL between Petitioner Lewis Smith and Respondent Desert Isle Homeowners Association, Inc. It includes a short-answer quiz, an answer key, suggested essay questions, and a comprehensive glossary of key terms and entities involved in the matter.
Short-Answer Quiz
Answer the following questions in 2-3 sentences based on the information provided in the case documents.
1. Who are the primary parties in case No. 18F-H1817020-REL, and who represented them legally?
2. What was the three-part purpose of the special meeting requested by Lewis Smith and other homeowners on October 23, 2017?
3. A second petition was submitted on October 31, 2017. What was its purpose and who were the petitioners?
4. What key actions were taken regarding officers and a special meeting during the Board of Directors meeting on November 8, 2017?
5. What did the Desert Isle HOA Board demand from Lewis Smith in its email on November 10, 2017, to proceed with the special meeting?
6. What was the central allegation Lewis Smith made in his petition to the Arizona Department of Real Estate on December 5, 2017?
7. What was the outcome of the vote on the proposed amendment to prohibit short-term rentals at the December 16, 2017 special meeting?
8. Which specific section of the Arizona Revised Statutes did the Administrative Law Judge find the Board had violated?
9. According to the case documents, what is the definition of “preponderance of the evidence”?
10. What was the final ruling issued by Administrative Law Judge Velva Moses-Thompson on May 29, 2018?
Answer Key
1. The primary parties were the Petitioner, Lewis Smith, and the Respondent, Desert Isle Homeowners Association, Inc. Lewis Smith was represented by Mark J. Bainbridge, Esq., and the Desert Isle HOA was represented by William D. Condray, Esq.
2. The purpose of the meeting was threefold: to select and fund an attorney to update the HOA’s bylaws and CC&Rs to comply with current Arizona law; to discuss obtaining a reserve study for the association’s capital needs; and to discuss an attorney letter regarding HOA governance.
3. Greg Yacoubian, Doug Robinson, Curt Carlson, and Mike Andrews submitted a request to amend the CC&Rs by adding a section to prohibit “Short Term Rentals.” They requested this subject be added to the agenda of the special meeting already requested by Lewis Smith’s group to save time and money.
4. At the November 8, 2017 meeting, a motion passed unanimously to remove the existing VP, treasurer, and secretary. New officers and assistants were elected, and another motion passed to call the special meeting requested by the two groups of owners before November 23, 2017.
5. The Board requested a “narrative explanation” from Lewis Smith for each of his proposed subjects. The Board stated it would expect four narratives plus any referenced attorney engagement letters and needed the materials by November 17, 2017, to prepare the special meeting package.
6. Lewis Smith alleged that the Desert Isle HOA Board members met to discuss and add an amendment prohibiting short-term rentals without conducting the meetings openly. He stated that no proper notice or agenda was provided to inform members of the matters to be discussed before the issue became a ballot vote.
7. At the December 16, 2017 meeting, the proposed amendment to prohibit short-term rentals was voted on by homeowners. Nine homeowners voted in favor of the amendment, and six homeowners voted against it.
8. The Judge found that the Board violated ARIZ. REV. STAT. section 33-1804(F). The violation occurred when the Board failed to provide an agenda with information reasonably necessary to inform members that an amendment to the CC&Rs prohibiting short-term rentals would be discussed at the board meetings on November 8 and November 20, 2017.
9. The documents provide two definitions. The first is “such proof as convinces the trier of fact that the contention is more probably true than not.” The second, from Black’s Law Dictionary, is “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
10. The Administrative Law Judge granted the Petitioner’s petition. The Judge’s order required the Respondent (Desert Isle HOA) to pay the Petitioner the filing fee required by statute.
Essay Questions
1. Construct a detailed timeline of events from the initial petition by Lewis Smith on October 23, 2017, to the final Administrative Law Judge Decision on May 29, 2018. Include all key meetings, communications, and legal filings mentioned in the documents.
2. Analyze the ways in which the Desert Isle Homeowners Association Board failed to comply with the open meeting policies outlined in ARIZ. REV. STAT. section 33-1804. Use specific examples from the meeting agendas and communications to support the analysis.
3. Discuss the concept of “burden of proof” as it applies to this case. Explain who held the burden of proof for the violation and any affirmative defenses, and how the “preponderance of the evidence” standard was met by the Petitioner.
4. Compare and contrast the two petitions submitted by homeowners in October 2017. Evaluate how the Board handled each request and the procedural steps it took that ultimately led to the legal dispute.
5. Based on the findings of fact, evaluate the communication between the Desert Isle HOA Board and its members. Discuss the effectiveness and legality of the Board’s notices, agendas, and email correspondence regarding the special meeting and the proposed CC&R amendment.
Glossary of Key Terms
Term / Entity
Definition
Administrative Law Judge (ALJ)
The official who presides over administrative hearings, in this case, Velva Moses-Thompson. The ALJ hears evidence and issues a decision based on findings of fact and conclusions of law.
ARIZ. REV. STAT. section 33-1804
An Arizona state statute governing meetings in planned communities. It requires open meetings, proper notice to members (between 10 and 50 days prior), and agendas that are reasonably necessary to inform members of matters to be discussed or decided.
ARIZ. REV. STAT. section 41-2198.01
An Arizona state statute that permits an owner or planned community organization to file a petition with the Department of Real Estate for a hearing concerning violations of community documents or relevant statutes.
Board of Directors (Board)
The governing body of the Desert Isle Homeowners Association, Inc. At the time of the events, key members included Doug Robinson (President), Curt Carlson, and Mike Andrews.
Burden of Proof
The obligation to prove one’s assertion. In this case, the Petitioner bore the burden of proof to establish the violation, and the Respondent bore the burden for any affirmative defenses.
CC&Rs (Covenants, Conditions, and Restrictions)
The governing documents of the Desert Isle planned community. The petitions submitted by homeowners sought to amend these documents.
Desert Isle Homeowners Association, Inc.
The Respondent in the case; the planned community organization and non-profit corporation responsible for managing the Desert Isle community.
Lewis Smith
The Petitioner in the case; a homeowner in the Desert Isle community who filed a petition against the HOA.
Notice of Hearing
A formal notification issued by the Department of Real Estate setting the date and location for an administrative hearing. In this case, it was issued on January 22, 2018.
Office of Administrative Hearings
The state tribunal where the hearing for this case was conducted.
Petitioner
The party who files a petition initiating a legal action. In this case, Lewis Smith.
Post-hearing Briefs
Written legal arguments submitted by parties after a hearing has concluded. The record in this case was held open until May 9, 2018, to receive these briefs.
Preponderance of the Evidence
The standard of proof required in this administrative hearing. It is defined as evidence that is sufficient to convince the trier of fact that a contention is more probably true than not.
Reserve Study
A study to determine an association’s long-term capital needs for its common areas. Lewis Smith’s petition requested a discussion about obtaining one.
Respondent
The party against whom a petition is filed. In this case, Desert Isle Homeowners Association, Inc.
Special Meeting
A meeting of association members called for a specific purpose outside of regularly scheduled meetings. Both petitions in this case requested a special meeting.
Blog Post – 18F-H1817020-REL
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629473.pdf
629515.pdf
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18F-H1817020-REL
3 sources
The provided documents are related to a legal dispute between Lewis Smith and the Desert Isle Homeowners Association, Inc., heard by the Office of Administrative Hearings. The first two sources, 629473.pdf and 629515.pdf, are identical “Order Holding Record Open” documents dated April 18, 2018, which mandated that the parties submit post-hearing briefs by specific deadlines and required the Homeowners Association to clarify its objection to a specific exhibit. The final source, 636989.pdf, is the “Administrative Law Judge Decision” issued on May 29, 2018, which found that the Homeowners Association violated Arizona law by failing to properly inform members that they would be discussing a proposed amendment to prohibit short-term rentals at two special board meetings. Ultimately, the judge granted Lewis Smith’s petition and ordered the Homeowners Association to pay the required filing fee.
Based on 3 sources
Case Participants
Petitioner Side
Lewis Smith(petitioner)
Mark J. Bainbridge(petitioner attorney) The Bainbridge Law Firm LLC
William H. Winn(homeowner) Submitted petition with Petitioner
Kevin Barnett(homeowner) Submitted petition with Petitioner
Chester Jay(homeowner) Submitted petition with Petitioner
Mike Sharp(homeowner/representative) Representative for Kevin Barnett
Kim Sharp(homeowner/representative) Representative for Kevin Barnett
Respondent Side
William D. Condray(respondent attorney)
Doug Robinson(board member) Desert Isle Homeowners Association, Inc. Board President
Curt Carlson(board member) Desert Isle Homeowners Association, Inc.
Mike Andrews(board member) Desert Isle Homeowners Association, Inc.
Greg Yacoubian(homeowner/board member) Desert Isle Homeowners Association, Inc. Replaced Mike Andrews on 11/20/17
Judy Carlson(HOA officer) Desert Isle Homeowners Association, Inc. Treasurer
Terri Robinson(HOA officer) Desert Isle Homeowners Association, Inc. Secretary
Jamie Kelly(HOA attorney) Consulted on Special Meeting package
Neutral Parties
Velva Moses-Thompson(ALJ)
Judy Lowe(Commissioner) Arizona Department of Real Estate
M.Aguirre(Clerk/Admin) Transmitting agent
LDettorre(ADRE Staff) ADRE Recipient of transmission
AHansen(ADRE Staff) ADRE Recipient of transmission
djones(ADRE Staff) ADRE Recipient of transmission
DGardner(ADRE Staff) ADRE Recipient of transmission
The ALJ consolidated two petitions. In the landscaping case (18F-H1818030-REL), the ALJ denied the petition, finding the Petitioner's tree was dead in violation of CC&R Section 28. In the mailbox case (18F-H1818031-REL), the ALJ ruled for the Petitioner because the mailbox was a preexisting condition known at purchase and the Respondent improperly cited CC&R Section 12 (pertaining to buildings) for a mailbox. The Respondent was ordered to refund the $500 filing fee for the mailbox case.
Why this result: For the landscaping issue, the Petitioner failed to prove the tree was alive; evidence showed it was dead and unsightly.
Key Issues & Findings
Landscaping Maintenance (Dead Olive Tree)
Petitioner disputed fines for a dead olive tree, claiming it was merely in distress. Respondent provided evidence the tree was dead.
Orders: Petition denied.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_lost
Additional Mailbox
Respondent cited Petitioner for having a freestanding mailbox without approval, citing CC&R Section 12 (buildings), then Section 27 (maintenance), then Section 8 (structures). Petitioner argued the mailbox existed when purchased.
Orders: Petitioner deemed prevailing party. Respondent ordered to pay Petitioner's filing fee of $500.00.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Decision Documents
18F-H1818031-REL Decision – 636748.pdf
Uploaded 2026-01-27T21:14:28 (130.5 KB)
18F-H1818031-REL Decision – 637227.pdf
Uploaded 2026-01-27T21:14:28 (57.9 KB)
18F-H1818031-REL Decision – 637433.pdf
Uploaded 2026-01-27T21:14:28 (56.5 KB)
**Case Summary: Jon Paul Holyoak v. Camelback Country Club Estates I & II Homeowners Association**
**Case No.** 18F-H1818031-REL (Consolidated for hearing with 18F-H1818030-REL)
**Hearing Date:** May 2, 2018
**Administrative Law Judge:** Tammy L. Eigenheer
**Overview and Proceedings**
Petitioner Jon Paul Holyoak filed a petition with the Arizona Department of Real Estate alleging that the Respondent, Camelback Country Club Estates I & II Homeowners Association, improperly cited him for violating the community’s Conditions, Covenants and Restrictions (CC&Rs). The dispute involved an additional freestanding mailbox located on the Petitioner's property. This matter was consolidated with a separate petition regarding landscaping issues (Case No. 18F-H1818030-REL).
**Key Facts and Arguments**
* **Notices of Violation:** The Respondent issued multiple notices regarding the mailbox. An October 2017 "Courtesy Notice" cited CC&R Section 27 (maintenance), while a December 2017 notice and a January 2018 "Notice of Violation" cited CC&R Section 12 (building restrictions).
* **Fines:** The Respondent imposed a $50 fine in the January notice based on the alleged violation of Section 12.
* **Petitioner’s Argument:** Holyoak testified that the freestanding mailbox was present when he purchased the home in 2012 and that he received a statement at closing indicating no known covenant violations existed. He further argued that United States Postal Service policy required him to maintain the freestanding mailbox for delivery.
* **Respondent’s Argument:** A board member testified that the freestanding mailbox was an "eyesore," unapproved, and insecure. The Respondent argued they had authority to enforce architectural consistency and maintenance standards.
**Legal Analysis and Findings**
The Administrative Law Judge (ALJ) found in favor of the Petitioner regarding the mailbox dispute based on the following key points:
1. **Inconsistent Citations:** The ALJ noted it was "problematic" that the Respondent relied on three different CC&R sections (27, 12, and later 8) across four notices.
2. **Inapplicability of Section 12:** The fine was imposed under Section 12, which restricts the erection of a "building" to one single-family dwelling and garage. The ALJ ruled that the plain language of Section 12 relates to buildings and "cannot be read to apply to Petitioner’s mailbox". Consequently, the Respondent violated the CC&Rs by imposing a fine under this section.
3. **Pre-existing Condition:** The Petitioner established by a preponderance of the evidence that the mailbox existed upon his purchase in 2012 and that he was notified there were no known violations at that time. Therefore, the Respondent's argument regarding the lack of architectural approval was without merit.
**Final Decision and Outcome**
* **Prevailing Party:** The Petitioner was deemed the prevailing party in Case No. 18F-H1818031-REL.
* **Award:** The Respondent was ordered to pay the Petitioner his filing fee of $500.00.
* **Correction of Record:** A subsequent *Order Nunc Pro Tunc* corrected a clerical error in the original decision to clarify that while the petition regarding the mailbox was successful, the separate petition regarding the landscaping (18F-H1818
Case Participants
Petitioner Side
Jon Paul Holyoak(petitioner) Appeared on his own behalf; name also appears as 'John Paul Holyoak' in subsequent orders
Respondent Side
J. Gary Linder(Respondent Attorney) Jones, Skelton & Hochuli, P.L.C.
Diana J. Elston(Respondent Attorney) Jones, Skelton & Hochuli, P.L.C.
Terry Rogers(board member) Camelback Country Club Estates I & II Homeowners Association Testified at hearing
Neutral Parties
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings Administrative Law Judge
Judy Lowe(Commissioner) Arizona Department of Real Estate Listed on distribution list
Felicia Del Sol(Clerk) Office of Administrative Hearings Transmitted the decision and orders
Camelback Country Club Estates I & II Homeowners Association
Counsel
Diana J. Elston, J. Gary Linder
Alleged Violations
CC&Rs Section 12
Outcome Summary
The Administrative Law Judge denied the petition related to landscaping (18F-H1818030-REL), but deemed Petitioner the prevailing party and ordered the refund of the $500 filing fee regarding the petition concerning the additional mailbox (18F-H1818031-REL) because the HOA improperly based the fine on CC&R Section 12.
Why this result: Petitioner failed to prove the olive tree was alive, and a dead tree could be reasonably considered a violation of CC&R Section 28 requiring neatly trimmed/properly cultivated plantings (Case 18F-H1818030-REL).
Key Issues & Findings
Improper fine regarding additional freestanding mailbox
Petitioner challenged fines for an additional mailbox lacking architectural approval. The ALJ found that CC&R Section 12 (related to 'building') could not be applied to a mailbox, rendering the fine imposed under that section a violation by the Respondent. Petitioner was deemed the prevailing party in this docket number (18F-H1818031-REL).
Orders: Respondent ordered to pay Petitioner $500.00 filing fee refund within thirty days.
Briefing Document: Holyoak v. Camelback Country Club Estates HOA
Executive Summary
This briefing document synthesizes the findings and conclusions from an Administrative Law Judge Decision concerning two consolidated petitions filed by homeowner Jon Paul Holyoak against the Camelback Country Club Estates I & II Homeowners Association (HOA). The disputes centered on HOA-issued violations for landscaping maintenance and the presence of a freestanding mailbox.
The final judgment produced a split decision. The Petitioner, Mr. Holyoak, failed to prove the HOA acted improperly in the landscaping case and his petition was denied. However, he was deemed the prevailing party in the mailbox case, with the judge concluding the HOA had violated its own community documents (CC&Rs) by imposing a fine based on an inapplicable section. As the prevailing party in one of the two matters, Mr. Holyoak was awarded his $500 filing fee, to be paid by the HOA. The initial decision document required two subsequent nunc pro tunc orders to correct typographical errors.
Key Takeaways:
• Landscaping Petition (Denied): Mr. Holyoak was cited for failing to remove a “dead” olive tree. He argued the tree was merely “in distress.” The judge ruled that a reasonable person would consider the tree dead and that Mr. Holyoak failed to provide sufficient evidence to the contrary. A dead tree was found to be a potential violation of CC&R Section 28, which requires plantings to be “neatly trimmed” and “properly cultivated.”
• Mailbox Petition (Upheld): Mr. Holyoak was cited for an “additional mailbox” that was present when he purchased the property in 2012. The judge found the HOA’s enforcement problematic for two primary reasons:
1. The HOA cited three different CC&R sections across multiple notices.
2. The fine was ultimately based on Section 12, which pertains to “buildings” and was deemed inapplicable to a mailbox.
• Final Order: The HOA was ordered to pay the Petitioner’s $500 filing fee. The decision is binding on the parties.
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Case Overview
The matter involves two petitions filed on February 2, 2018, by Petitioner Jon Paul Holyoak with the Arizona Department of Real Estate against the Respondent, Camelback Country Club Estates I & II Homeowners Association. The petitions alleged that the HOA had improperly cited Mr. Holyoak for violations of the community’s Conditions, Covenants, and Restrictions (CC&Rs). The two cases were consolidated for a single hearing.
This petition alleged that the HOA improperly cited Mr. Holyoak for violating Section 28 of the CC&Rs, which governs landscape maintenance.
HOA Actions and Timeline
The HOA, through its inspection team Associa Arizona, issued a series of notices regarding the landscaping on Mr. Holyoak’s property.
Notice Type
Description
Oct 17, 2017
Courtesy Notice
“Please remove the dead foliage on your lot.”
Dec 13, 2017
Courtesy Notice
“Please remove the dead olive tree in the front yard.”
Dec 13, 2017
Courtesy Notice
“There are several other trees that need to be removed as they have dead branches including the cassia…”
Jan 25, 2018
Notice of Violation
“2nd notice…There are several other trees that need to be removed as they have dead branches…” (Included photo of backyard).
Arguments Presented
• Petitioner’s Position (Holyoak):
◦ The olive tree in the front yard was not “dead” but rather “in distress,” and he was actively trying to nurse it back to health. He eventually had the tree removed on April 25, 2018, after months of effort.
◦ Regarding the backyard photo attached to the fine notice, he argued that the olive tree visible was healthy and that no dead trees were depicted.
◦ He requested that the fine be abated.
• Respondent’s Position (HOA):
◦ Board member Terry Rogers testified that the front yard olive tree had no leaves, appeared dead from the roadway, and was therefore not “properly trimmed” as required.
◦ He stated the backyard notice referred to a eucalyptus tree with several dead branches visible from the sidewalk bordering the property.
Administrative Law Judge’s Findings and Conclusion
The judge ruled in favor of the HOA in this matter.
• Burden of Proof: The Petitioner failed to present sufficient evidence, beyond “his self-serving statements,” that the olive tree was alive.
• Reasonable Interpretation: The judge concluded that “Any reasonable person viewing the olive tree, as depicted in the photographs presented, would understand the tree to be dead.”
• Violation of CC&Rs: A dead tree could reasonably be considered as not being “neatly trimmed” or “properly cultivated” in accordance with Section 28.
• Verdict: The Petitioner’s petition was denied. The judge found that the HOA had not improperly fined him for the landscaping violation.
This petition alleged that the HOA improperly cited Mr. Holyoak for having an “additional mailbox” in violation of the CC&Rs.
HOA Actions and Timeline
The HOA’s notices for the mailbox cited three different sections of the CC&Rs over time.
Notice Type
Description
CC&R Section Cited
Oct 17, 2017
Courtesy Notice
“Please remove the additional mailbox on your lot.”
Section 27
Dec 14, 2017
Courtesy Notice
“…there is an additional mailbox on your lot. In research of our files, there is no architectural application on file for the modification.”
Section 12
Jan 25, 2018
Notice of Violation
“2nd notice…Please remove the mailbox or provide the approved architectural application.” (Mailbox was painted bright pink and yellow at this time).
Section 12
Jan 25, 2018¹
Notice of Violation
“3rd notice…Please remove the mailbox or provide the approved architectural application.”
Section 8
¹The decision document states this notice was sent on January 25, 2018, but references a violation noted on March 15, 2018. The judge’s conclusions later clarify a notice referencing Section 8 was issued April 11, 2018, and was not properly before the tribunal.
Arguments Presented
• Petitioner’s Position (Holyoak):
◦ The freestanding mailbox was already in place when he purchased the home in 2012.
◦ At the time of purchase, he received a statement that there were no known covenant violations on the property.
◦ He argued the mailbox is required by the United States Postal Service (USPS), which no longer provides walking delivery and requires mailboxes to be reachable from a vehicle. The home’s other mailbox, built into a monument, is approximately 15 feet from the curb.
◦ A USPS mail carrier had confirmed this delivery requirement.
• Respondent’s Position (HOA):
◦ Board member Terry Rogers testified that the USPS mail carrier told him he would prefer to deliver to the permanent monument mailbox because the freestanding one was not secure.
◦ The mailbox had become an “eyesore,” as it was faded, peeling, and “listing to one side.”
◦ Of the 61 homes in the community, only three have freestanding mailboxes, and the Petitioner is the only one with two mailboxes.
Administrative Law Judge’s Findings and Conclusion
The judge ruled in favor of the Petitioner in this matter.
• Inconsistent Enforcement: The judge found it “problematic” that the HOA relied on three different sections of the CC&Rs in its notices.
• Pre-existing Structure: The Petitioner established that the mailbox was present at the time of his 2012 home purchase and that he was told of no existing violations. Therefore, the HOA’s argument regarding the lack of an architectural approval was “without merit.”
• Inapplicable CC&R Section: The fine was imposed based on Section 12 of the CC&Rs. The judge determined the plain language of this section relates to a “building” and “cannot be read to apply to Petitioner’s mailbox.”
• Violation by HOA: By imposing a fine based on an inapplicable section, the HOA was in violation of the CC&Rs.
• Verdict: The Petitioner was deemed the prevailing party. The judge noted that the HOA could potentially impose fines for failure to maintain the mailbox or for painting it without approval, but those specific violations were not before the court.
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Final Order and Subsequent Corrections
• Order of May 25, 2018:
1. Petitioner’s petition in Case Number 18F-H1818030-REL (Landscaping) is denied.
2. Petitioner is deemed the prevailing party in Case Number 18F-H1818031-REL (Mailbox).
3. Respondent (HOA) is ordered to pay Petitioner his $500.00 filing fee within thirty days.
• Order Nunc Pro Tunc of May 30, 2018:
◦ This order corrected a typographical error in the original decision. The original text mistakenly stated the petition for the mailbox case (31-REL) was denied.
◦ Correction: The denial was correctly applied to the landscaping case: “it is ORDERED that Petitioner’s petition in Case Number 18F-H1818031-REL 18F-H1818030-REL is denied.”
• Order Nunc Pro Tunc of May 31, 2018:
◦ This order corrected a typographical error in the May 30 order, which had misstated the date of the original decision.
◦ Correction: “On April 26 May 25, 2018, the Administrative Law Judge issued the Administrative Law Judge Decision…”
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Key CC&R Sections Cited
• Section 8 (Architectural Control): Requires written approval from the Committee before any “building or other structure” is erected, altered, or repaired. This includes exterior finish, color, and architectural style.
• Section 12 (Buildings): States that “No building may be erected or maintained upon any Lot except one single family dwelling with private appurtenant garage and customary outbuildings” without prior written approval.
• Section 27 (Maintenance): Prohibits any building or structure from falling into disrepair and requires owners to keep them in good condition and adequately painted.
• Section 28 (Landscaping): Requires the owner of each lot to “at all times keep shrubs, trees, grass and plantings of every kind, on his lot mostly trimmed, properly cultivated, and free of trash, weeds and other unsightly material.”
Study Guide – 18F-H1818030-REL
Study Guide: Holyoak v. Camelback Country Club Estates I & II HOA
This guide provides a comprehensive review of the administrative hearing case between petitioner Jon Paul Holyoak and the respondent, Camelback Country Club Estates I & II Homeowners Association. It covers the core disputes, arguments, legal interpretations, and the final decision rendered by the Administrative Law Judge.
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 sentences based on the information provided in the case documents.
1. Who were the primary parties in this administrative case, and what were their roles?
2. What were the two distinct case numbers, and what violation did each one address?
3. According to Section 28 of the CC&Rs, what is the responsibility of a lot owner regarding landscaping?
4. What was the petitioner’s primary defense regarding the citation for a “dead” olive tree in his front yard?
5. What was the respondent’s argument for why the olive tree was a violation of the CC&Rs?
6. What key fact did the petitioner establish regarding the freestanding mailbox that was central to the judge’s decision in that matter?
7. Why did the Administrative Law Judge find the respondent’s enforcement actions regarding the mailbox to be “problematic”?
8. On what grounds did the Administrative Law Judge rule that the respondent violated the CC&Rs by fining the petitioner for the mailbox under Section 12?
9. What was the final outcome and financial penalty ordered in the consolidated cases?
10. What is an “Order Nunc Pro Tunc,” and why were two such orders issued after the initial decision?
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Answer Key
1. The primary parties were Jon Paul Holyoak, the homeowner, who acted as the Petitioner. The Respondent was the Camelback Country Club Estates I & II Homeowners Association, which was represented by Gary Linder and Diana Elston.
2. The first case, No. 18F-H1818030-REL, addressed alleged landscaping violations under Section 28 of the CC&Rs concerning dead trees and foliage. The second case, No. 18F-H1818031-REL, addressed an alleged violation for an additional freestanding mailbox, primarily under Section 12 of the CC&Rs.
3. Section 28 of the CC&Rs requires that the owner of each lot shall at all times keep shrubs, trees, grass, and plantings neatly trimmed, properly cultivated, and free of trash, weeds, and other unsightly material.
4. The petitioner testified that the olive tree was not “dead” but was “in distress,” and that he and his landscaper were actively trying to nurse it back to health. He argued he should not be forced to remove a tree with dead branches while attempting to save it.
5. The respondent’s board member, Terry Rogers, testified that the olive tree had no leaves and appeared dead from the roadway. He contended that a dead tree could not be considered “properly trimmed” as required by the CC&Rs.
6. The petitioner established by a preponderance of the evidence that the freestanding mailbox was already in place when he purchased the property in 2012. Furthermore, at the time of purchase, he was notified that there were no known covenant violations on the property.
7. The Judge found the respondent’s actions problematic because, over the course of four notices sent to the petitioner about the mailbox, the respondent relied on three different sections of the CC&Rs (Sections 27, 12, and 8). This inconsistency weakened the respondent’s position.
8. The Judge ruled that the plain language of Section 12 of the CC&Rs relates to a “building,” such as a single-family dwelling or garage. The Judge concluded that a mailbox cannot be considered a “building” under this section, making the fine imposed under this rule a violation of the CC&Rs by the respondent.
9. The petitioner’s petition regarding landscaping (18F-H1818030-REL) was denied. However, the petitioner was deemed the prevailing party in the mailbox case (18F-H1818031-REL), and the respondent was ordered to pay the petitioner’s $500.00 filing fee.
10. “Nunc Pro Tunc” is a legal term for an order that corrects a clerical error in a prior court decision, with the correction being retroactive. The first order corrected the case number in the final ruling, and the second order corrected a date referenced in the first corrective order.
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Essay Questions
Instructions: Consider the following questions. Formulate a detailed response that synthesizes facts and arguments from the case documents to support your position.
1. Explain the concept of “preponderance of the evidence” as defined in the decision and analyze how the petitioner met this burden of proof in the mailbox case but failed to meet it in the landscaping case.
2. Discuss the legal significance of the HOA’s inconsistent application of its CC&Rs in the mailbox dispute. Why did citing three different sections (27, 12, and 8) undermine the HOA’s case?
3. Analyze the Administrative Law Judge’s interpretation of Section 12 of the CC&Rs. How does the “plain language” of the rule factor into the decision that a mailbox is not a “building”?
4. Examine the arguments presented by both parties regarding the freestanding mailbox, including the conflicting accounts of conversations with the USPS mail carrier. Evaluate the strengths and weaknesses of each party’s position.
5. The Judge noted that while the fine under Section 12 was improper, the HOA could potentially impose fines for failure to maintain the mailbox or for painting it without approval. Based on the facts presented, construct a hypothetical argument the HOA could have made that might have been successful.
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Glossary of Key Terms
Definition
To reduce or remove. In the context of the hearing, the Petitioner asked that the fines be abated, meaning he requested they be cancelled or removed.
Administrative Law Judge (ALJ)
An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions, similar to a judge in a court of law. In this case, the ALJ was Tammy L. Eigenheer.
Conditions, Covenants, and Restrictions (CC&Rs)
The governing legal documents that set forth the rules and regulations for a planned community or subdivision. The petitioner and respondent both based their arguments on interpretations of these documents.
Conclusions of Law
The section of a legal decision where the judge applies legal principles and rules (like the CC&Rs and state statutes) to the facts of the case to reach a final judgment.
Findings of Fact
The section of a legal decision that establishes the factual record of the case based on the evidence and testimony presented during the hearing.
Jurisdiction
The official power to make legal decisions and judgments. The Arizona Department of Real Estate was determined to have jurisdiction to hear disputes between a property owner and a homeowners association.
Nunc Pro Tunc
A Latin phrase meaning “now for then.” It refers to a legal order that corrects a clerical error in a previous order, making the correction retroactive to the original date of the decision.
Petitioner
The party who initiates a lawsuit or files a petition seeking a legal remedy. In this case, Jon Paul Holyoak was the Petitioner.
Preponderance of the Evidence
The standard of proof in most civil cases. It means the greater weight of the evidence shows that a fact is more likely than not to be true. The Petitioner bore this burden of proof.
Prevailing Party
The party in a lawsuit who is found to have won the legal dispute. In case 18F-H1818031-REL, the Petitioner was deemed the prevailing party, which entitled him to have his filing fee reimbursed.
Respondent
The party against whom a petition is filed; the defending party. In this case, the Camelback Country Club Estates I & II Homeowners Association was the Respondent.
Blog Post – 18F-H1818030-REL
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18F-H1818030-REL
3 sources
The sources document an Administrative Law Judge Decision concerning a dispute between Jon Paul Holyoak (Petitioner) and the Camelback Country Club Estates I & II Homeowners Association (Respondent), along with subsequent orders correcting clerical errors. The initial decision addresses two consolidated petitions: one regarding landscaping violations (dead trees) under CC&R Section 28, and a second concerning a disputed mailbox under various CC&R sections, particularly Section 12. While the Petitioner failed to prove the association improperly fined him for the dead tree, the judge determined the association was in violation of the CC&Rs for improperly citing Section 12 for the mailbox issue, leading the Petitioner to be deemed the prevailing party in the mailbox case and awarded his $500 filing fee. The subsequent documents, titled Order Nunc Pro Tunc, are procedural corrections to typographical errors found in the original decision’s text and date.
Based on 3 sources
Case Participants
Petitioner Side
John Paul Holyoak(petitioner) Also appears as 'Jon Paul Holyoak'
Respondent Side
Terry Rogers(board member) Camelback Country Club Estates I & II HOA Testified at hearing
Gary Linder(attorney) Jones, Skelton & Hochuli, P.L.C. Also listed as 'J. Gary Linder'
Diana J. Elston(attorney) Jones, Skelton & Hochuli, P.L.C.
Neutral Parties
Tammy L. Eigenheer(ALJ)
Judy Lowe(commissioner) Arizona Department of Real Estate (ADRE)
Felicia Del Sol(clerk) Transmitting agent
LDettorre(ADRE staff) Arizona Department of Real Estate (ADRE)
AHansen(ADRE staff) Arizona Department of Real Estate (ADRE)
djones(ADRE staff) Arizona Department of Real Estate (ADRE)
DGardner(ADRE staff) Arizona Department of Real Estate (ADRE)
ncano(ADRE staff) Arizona Department of Real Estate (ADRE)
Camelback Country Club Estates I & II Homeowners Association
Counsel
Diana J. Elston, J. Gary Linder
Alleged Violations
CC&Rs Section 12
Outcome Summary
The Administrative Law Judge denied the petition related to landscaping (18F-H1818030-REL), but deemed Petitioner the prevailing party and ordered the refund of the $500 filing fee regarding the petition concerning the additional mailbox (18F-H1818031-REL) because the HOA improperly based the fine on CC&R Section 12.
Why this result: Petitioner failed to prove the olive tree was alive, and a dead tree could be reasonably considered a violation of CC&R Section 28 requiring neatly trimmed/properly cultivated plantings (Case 18F-H1818030-REL).
Key Issues & Findings
Improper fine regarding additional freestanding mailbox
Petitioner challenged fines for an additional mailbox lacking architectural approval. The ALJ found that CC&R Section 12 (related to 'building') could not be applied to a mailbox, rendering the fine imposed under that section a violation by the Respondent. Petitioner was deemed the prevailing party in this docket number (18F-H1818031-REL).
Orders: Respondent ordered to pay Petitioner $500.00 filing fee refund within thirty days.
Briefing Document: Holyoak v. Camelback Country Club Estates HOA
Executive Summary
This briefing document synthesizes the findings and conclusions from an Administrative Law Judge Decision concerning two consolidated petitions filed by homeowner Jon Paul Holyoak against the Camelback Country Club Estates I & II Homeowners Association (HOA). The disputes centered on HOA-issued violations for landscaping maintenance and the presence of a freestanding mailbox.
The final judgment produced a split decision. The Petitioner, Mr. Holyoak, failed to prove the HOA acted improperly in the landscaping case and his petition was denied. However, he was deemed the prevailing party in the mailbox case, with the judge concluding the HOA had violated its own community documents (CC&Rs) by imposing a fine based on an inapplicable section. As the prevailing party in one of the two matters, Mr. Holyoak was awarded his $500 filing fee, to be paid by the HOA. The initial decision document required two subsequent nunc pro tunc orders to correct typographical errors.
Key Takeaways:
• Landscaping Petition (Denied): Mr. Holyoak was cited for failing to remove a “dead” olive tree. He argued the tree was merely “in distress.” The judge ruled that a reasonable person would consider the tree dead and that Mr. Holyoak failed to provide sufficient evidence to the contrary. A dead tree was found to be a potential violation of CC&R Section 28, which requires plantings to be “neatly trimmed” and “properly cultivated.”
• Mailbox Petition (Upheld): Mr. Holyoak was cited for an “additional mailbox” that was present when he purchased the property in 2012. The judge found the HOA’s enforcement problematic for two primary reasons:
1. The HOA cited three different CC&R sections across multiple notices.
2. The fine was ultimately based on Section 12, which pertains to “buildings” and was deemed inapplicable to a mailbox.
• Final Order: The HOA was ordered to pay the Petitioner’s $500 filing fee. The decision is binding on the parties.
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Case Overview
The matter involves two petitions filed on February 2, 2018, by Petitioner Jon Paul Holyoak with the Arizona Department of Real Estate against the Respondent, Camelback Country Club Estates I & II Homeowners Association. The petitions alleged that the HOA had improperly cited Mr. Holyoak for violations of the community’s Conditions, Covenants, and Restrictions (CC&Rs). The two cases were consolidated for a single hearing.
This petition alleged that the HOA improperly cited Mr. Holyoak for violating Section 28 of the CC&Rs, which governs landscape maintenance.
HOA Actions and Timeline
The HOA, through its inspection team Associa Arizona, issued a series of notices regarding the landscaping on Mr. Holyoak’s property.
Notice Type
Description
Oct 17, 2017
Courtesy Notice
“Please remove the dead foliage on your lot.”
Dec 13, 2017
Courtesy Notice
“Please remove the dead olive tree in the front yard.”
Dec 13, 2017
Courtesy Notice
“There are several other trees that need to be removed as they have dead branches including the cassia…”
Jan 25, 2018
Notice of Violation
“2nd notice…There are several other trees that need to be removed as they have dead branches…” (Included photo of backyard).
Arguments Presented
• Petitioner’s Position (Holyoak):
◦ The olive tree in the front yard was not “dead” but rather “in distress,” and he was actively trying to nurse it back to health. He eventually had the tree removed on April 25, 2018, after months of effort.
◦ Regarding the backyard photo attached to the fine notice, he argued that the olive tree visible was healthy and that no dead trees were depicted.
◦ He requested that the fine be abated.
• Respondent’s Position (HOA):
◦ Board member Terry Rogers testified that the front yard olive tree had no leaves, appeared dead from the roadway, and was therefore not “properly trimmed” as required.
◦ He stated the backyard notice referred to a eucalyptus tree with several dead branches visible from the sidewalk bordering the property.
Administrative Law Judge’s Findings and Conclusion
The judge ruled in favor of the HOA in this matter.
• Burden of Proof: The Petitioner failed to present sufficient evidence, beyond “his self-serving statements,” that the olive tree was alive.
• Reasonable Interpretation: The judge concluded that “Any reasonable person viewing the olive tree, as depicted in the photographs presented, would understand the tree to be dead.”
• Violation of CC&Rs: A dead tree could reasonably be considered as not being “neatly trimmed” or “properly cultivated” in accordance with Section 28.
• Verdict: The Petitioner’s petition was denied. The judge found that the HOA had not improperly fined him for the landscaping violation.
This petition alleged that the HOA improperly cited Mr. Holyoak for having an “additional mailbox” in violation of the CC&Rs.
HOA Actions and Timeline
The HOA’s notices for the mailbox cited three different sections of the CC&Rs over time.
Notice Type
Description
CC&R Section Cited
Oct 17, 2017
Courtesy Notice
“Please remove the additional mailbox on your lot.”
Section 27
Dec 14, 2017
Courtesy Notice
“…there is an additional mailbox on your lot. In research of our files, there is no architectural application on file for the modification.”
Section 12
Jan 25, 2018
Notice of Violation
“2nd notice…Please remove the mailbox or provide the approved architectural application.” (Mailbox was painted bright pink and yellow at this time).
Section 12
Jan 25, 2018¹
Notice of Violation
“3rd notice…Please remove the mailbox or provide the approved architectural application.”
Section 8
¹The decision document states this notice was sent on January 25, 2018, but references a violation noted on March 15, 2018. The judge’s conclusions later clarify a notice referencing Section 8 was issued April 11, 2018, and was not properly before the tribunal.
Arguments Presented
• Petitioner’s Position (Holyoak):
◦ The freestanding mailbox was already in place when he purchased the home in 2012.
◦ At the time of purchase, he received a statement that there were no known covenant violations on the property.
◦ He argued the mailbox is required by the United States Postal Service (USPS), which no longer provides walking delivery and requires mailboxes to be reachable from a vehicle. The home’s other mailbox, built into a monument, is approximately 15 feet from the curb.
◦ A USPS mail carrier had confirmed this delivery requirement.
• Respondent’s Position (HOA):
◦ Board member Terry Rogers testified that the USPS mail carrier told him he would prefer to deliver to the permanent monument mailbox because the freestanding one was not secure.
◦ The mailbox had become an “eyesore,” as it was faded, peeling, and “listing to one side.”
◦ Of the 61 homes in the community, only three have freestanding mailboxes, and the Petitioner is the only one with two mailboxes.
Administrative Law Judge’s Findings and Conclusion
The judge ruled in favor of the Petitioner in this matter.
• Inconsistent Enforcement: The judge found it “problematic” that the HOA relied on three different sections of the CC&Rs in its notices.
• Pre-existing Structure: The Petitioner established that the mailbox was present at the time of his 2012 home purchase and that he was told of no existing violations. Therefore, the HOA’s argument regarding the lack of an architectural approval was “without merit.”
• Inapplicable CC&R Section: The fine was imposed based on Section 12 of the CC&Rs. The judge determined the plain language of this section relates to a “building” and “cannot be read to apply to Petitioner’s mailbox.”
• Violation by HOA: By imposing a fine based on an inapplicable section, the HOA was in violation of the CC&Rs.
• Verdict: The Petitioner was deemed the prevailing party. The judge noted that the HOA could potentially impose fines for failure to maintain the mailbox or for painting it without approval, but those specific violations were not before the court.
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Final Order and Subsequent Corrections
• Order of May 25, 2018:
1. Petitioner’s petition in Case Number 18F-H1818030-REL (Landscaping) is denied.
2. Petitioner is deemed the prevailing party in Case Number 18F-H1818031-REL (Mailbox).
3. Respondent (HOA) is ordered to pay Petitioner his $500.00 filing fee within thirty days.
• Order Nunc Pro Tunc of May 30, 2018:
◦ This order corrected a typographical error in the original decision. The original text mistakenly stated the petition for the mailbox case (31-REL) was denied.
◦ Correction: The denial was correctly applied to the landscaping case: “it is ORDERED that Petitioner’s petition in Case Number 18F-H1818031-REL 18F-H1818030-REL is denied.”
• Order Nunc Pro Tunc of May 31, 2018:
◦ This order corrected a typographical error in the May 30 order, which had misstated the date of the original decision.
◦ Correction: “On April 26 May 25, 2018, the Administrative Law Judge issued the Administrative Law Judge Decision…”
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Key CC&R Sections Cited
• Section 8 (Architectural Control): Requires written approval from the Committee before any “building or other structure” is erected, altered, or repaired. This includes exterior finish, color, and architectural style.
• Section 12 (Buildings): States that “No building may be erected or maintained upon any Lot except one single family dwelling with private appurtenant garage and customary outbuildings” without prior written approval.
• Section 27 (Maintenance): Prohibits any building or structure from falling into disrepair and requires owners to keep them in good condition and adequately painted.
• Section 28 (Landscaping): Requires the owner of each lot to “at all times keep shrubs, trees, grass and plantings of every kind, on his lot mostly trimmed, properly cultivated, and free of trash, weeds and other unsightly material.”
Briefing on the Administrative Law Judge Decision Document
Executive Summary
The source material provides a standardized template for an “Administrative Law Judge Decision” issued by the Office of Administrative Hearings located in Phoenix, Arizona. The document is structured to formalize the outcome of an administrative hearing, delineating key procedural and case-specific information. Its core components include sections for case identification, hearing details, participant appearances, and the presiding judge’s official signature. A notable feature is the explicit protocol for electronic transmission of the final decision to a designated client contact, indicating a formalized digital workflow. The template utilizes a series of placeholders to be populated with specific details for each case.
Document Origin and Jurisdiction
The document template originates from a specific governmental body, establishing its context and authority within an administrative legal framework.
• Issuing Authority: Office of Administrative Hearings
This information firmly places the document within the purview of this Arizona-based administrative office.
Core Components of the Decision Template
The template is systematically organized to ensure all critical information for a legal decision is captured and presented clearly.
1. Case Identification
The header section is designed to uniquely identify the matter being adjudicated.
• Case Number: The document includes a field for a unique identifier, denoted as No. «Matter Matter ID».
• Matter Notes: A placeholder, «Matter Notes», is provided at the top, likely for a case title, subject matter, or other essential preliminary information.
2. Hearing and Participant Details
The template formalizes the record of the hearing and its attendees.
• Hearing Information: A dedicated HEARING: section is included to record the specifics of the hearing itself, such as the date and nature of the proceedings.
• Appearances: A section labeled APPEARANCES: is designated for listing the parties and representatives who were present.
• Presiding Judge: The decision is attributed to a specific judge, identified by the placeholder ADMINISTRATIVE LAW JUDGE: «Professional Full Name».
3. Decision and Execution
The concluding section of the template is structured for the formal issuance and authentication of the judge’s decision.
• Date of Decision: The document is dated with the line: Done this day, «Today: July 4, 1996».
• Judge’s Signature: A formal signature line is provided for the judge: /s/ «Professional Full Name» Administrative Law Judge.
4. Transmission Protocol
The template includes explicit instructions for the document’s dissemination after being finalized.
• Method of Delivery: The document specifies it is “Transmitted electronically to:”.
• Recipient Information: It contains placeholders to detail the recipient, including their full name («Client Contact Full Name»), title («Client Contact Title»), and organization («Client Contact Company»).
Analysis of Placeholder Fields
The template’s functionality relies on a series of placeholder fields, which reveal the specific data points required to complete a formal decision document.
Placeholder Field
Inferred Purpose
«Matter Notes»
To be replaced with the case title, subject, or other key contextual notes.
«Matter Matter ID»
The unique docket or case number assigned to the administrative matter.
«Professional Full Name»
The full name of the presiding Administrative Law Judge; used in two locations.
«Today: July 4, 1996»
The specific date on which the judge finalizes and issues the decision.
«Client Contact Full Name»
The full name of the primary contact person receiving the decision.
«Client Contact Title»
The professional title of the recipient.
«Client Contact Company»
The company or organization to which the recipient belongs.
