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Senol Pekin v. Artesian Ranch Community Association (ROOT)

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Case Summary

Case ID23F-H034-REL
AgencyArizona Department of Real Estate
TribunalArizona Office of Administrative Hearings
Decision Date2023-04-10
Administrative Law JudgeVMT
Outcomeno_files
Filing Fees Refunded—
Civil Penalties$0.00

Parties & Counsel

PetitionerSenol PekinCounselPro Se
RespondentArtesian Ranch Community AssociationCounselAshley Moscarello, Esq.

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

23F-H034-REL Decision – 1044665.pdf

Uploaded 2026-04-28T11:14:03 (166.9 KB)

23F-H034-REL Decision – 1048179.pdf

Uploaded 2026-04-28T11:14:24 (106.9 KB)

Briefing Document: Pekin vs. Artesian Ranch Community Association (Consolidated Matters 23F-H034-REL and 23F-H037-REL)

Executive Summary

This briefing document synthesizes the testimony, evidentiary records, and final judicial decision regarding the consolidated legal matters between Petitioner Senol Pekin and Respondent Artesian Ranch Community Association. The dispute centers on allegations of governance failures, bylaw violations, and the infringement of member rights by the Association and its management firm, Associated Asset Management (AAM).

Following a hearing on March 20, 2023, Administrative Law Judge (ALJ) Velva Moses-Thompson issued a decision on April 10, 2023. The ALJ found that the Association committed two specific violations: failing to hold its annual meeting in accordance with its bylaws and unlawfully prohibiting the recording of an open board meeting. While several other allegations regarding meeting organization and the muting of board members were dismissed, the Respondent was ordered to reimburse the Petitioner’s $1,000 filing fee for the established violations.

Key Case Entities and Witnesses

Entity/IndividualRoleDescription
Senol PekinPetitionerA homeowner and elected board member who filed the petitions.
Artesian Ranch Community AssociationRespondentThe homeowners' association governing the community.
AAM, LLCManagement AgentAssociated Asset Management; provides portfolio management for the Association.
Mandy RogersWitnessCommunity Manager at AAM; manages 10 communities including Artesian Ranch.
Susanne Easterday RoskensWitnessBoard President of the Association.
Velva Moses-ThompsonPresiding ALJAdministrative Law Judge who rendered the final decision.

Detailed Analysis of Key Themes

1. Bylaw Adherence vs. Operational Cadence

A central conflict in the testimony was the discrepancy between the Association's written bylaws and its actual practices. Article II, Section 2.3 of the Bylaws explicitly requires subsequent regular annual meetings to be held on the second Wednesday of April each year.

  • Evidence of Violation: The 2022 annual meeting was held in May.
  • Management Defense: Mandy Rogers testified that the meeting date was set based on a "cadence" established by previous management and board decisions influenced by COVID-19 delays. She argued that the provision requiring an April election for a January 1st term commencement was "unheard of" and that she had never seen such a requirement in her 17 years of experience.
  • Judicial Ruling: The ALJ rejected the Association’s defense that this was a "technical violation" with no harm. The ruling stated that A.R.S. § 10-3701(e) does not provide an exception for adhering to bylaws that require a set time for an annual meeting.
2. The Scope of Management Authority

Petitioner Pekin argued that the HOA Manager overstepped her authority by scheduling a board meeting on September 22, 2022, asserting that only board members possess such power under the bylaws.

  • Conflict of Testimony: Pekin claimed he never authorized the meeting. Conversely, Susanne Roskens testified that she requested the meeting via a phone call with Mandy Rogers to resolve a time-sensitive landscaping issue regarding "overseeding" that required a prompt decision.
  • Judicial Ruling: The ALJ ruled in favor of the Association on this issue, noting that Rogers, as an employee of the Community Manager, may act as an agent of the Board.
3. Transparency and Statutory Recording Rights

The October 24, 2022, board meeting featured a directive from management prohibiting attendees from recording the session.

  • Statutory Context: A.R.S. § 33-1804(A) explicitly permits persons attending open board meetings to audiotape or videotape the proceedings. It forbids the board from requiring advance notice for such recording.
  • Management Justification: Rogers claimed the prohibition was based on advice from the Association’s attorney to protect the privacy of executive session items being discussed in an open forum.
  • Judicial Ruling: The ALJ found this to be a clear violation of state law, confirming that the Association cannot preclude members from recording open portions of meetings.
4. Digital Governance and Board Member Participation

The Petitioner alleged he was silenced during Zoom meetings through the "mute" function, preventing him from voicing opposition to financial decisions, specifically regarding a $60,000 tree trimming budget.

  • The "Combative" Label: Rogers testified that the mute function was used because Pekin was "combative," "aggressive," and brought up "executive session material in an open session."
  • Witness Observations: Witness Shelly Nelson testified that Pekin was muted several times and that the tone of the meeting felt "antagonistic" and "not friendly."
  • Judicial Ruling: Despite the muting, the ALJ found that Pekin failed to prove he was not allowed to speak. The evidence showed he had several opportunities to speak during the meeting and even suggested follow-up discussions on agenda items.

Important Quotes with Context

"Your annual meeting for the past 3 years was on the wrong date per the bylaw. That's my answer." — Mandy Rogers, Community Manager Context: This admission followed a line of questioning by Pekin regarding the consistent failure to hold April meetings as mandated by the governing documents.

"I have never seen governing documents that call that out ever. Nor has anybody in my company or at the attorney's firm… it's unheard of." — Mandy Rogers, Community Manager Context: Rogers was defending the decision to ignore the bylaw requiring a January 1st start date for directors elected in April, arguing the document was an anomaly she was not initially aware of.

"By muting me they are inhibiting my effective participation functioning in the board… I am representing [homeowners] who have been severely molested by the mosquitoes in our community." — Senol Pekin, Petitioner Context: Pekin explaining his frustration during closing arguments, linking the procedural silencing to his inability to address urgent health and safety issues like vector control.

"The board shall provide for a reasonable number of persons to speak on each side of an issue. Persons attending may audiotape or videotape those portions of the meetings… the board… shall not require advance notice." — ALJ Velva Moses-Thompson (citing A.R.S. § 33-1804) Context: The legal foundation for the ruling that the Association violated statutory member rights by banning recording.

Actionable Insights

For Homeowners' Associations
  • Strict Bylaw Compliance: Technical violations regarding meeting dates are not excused by "practicality" or "unprecedented issues" like COVID-19. Associations must formally amend bylaws if the mandated timelines are no longer feasible.
  • Adherence to A.R.S. § 33-1804: Boards cannot prohibit the recording of open meetings or require prior notice. Any such rule is a violation of Arizona law.
  • Management as Agent: Management firms may lawfully organize meetings at the verbal or written direction of the Board President or a majority of the board, provided they act as authorized agents.
For Board Members and Management
  • Documentation of Directives: To avoid disputes over who "called" a meeting, board presidents should provide written confirmation of their request to management.
  • Judicious Use of Muting: While managing "combative" members is a legitimate function of meeting moderation, it must be balanced against the statutory right of members to speak at appropriate times during deliberations.
  • Director Training Requirements: Per Bylaws Section 3.1A, all directors should complete training before commencing service. The evidence indicated that failure to synchronize training with election dates can lead to delays in organizational meetings.

Final Judicial Disposition

IssueFindingRuling
1. Annual Meeting DateViolated Bylaw 2.3Prevailing Party: Petitioner
2. Organizational MeetingBylaws do not require separate meetingPrevailing Party: Respondent
3. Authority to Call MeetingManager acted as agent of the BoardPrevailing Party: Respondent
4. Prohibition of RecordingViolated A.R.S. § 33-1804Prevailing Party: Petitioner
5. Muting/Opposing ViewsPetitioner had opportunities to speakPrevailing Party: Respondent

Remedy: Respondent ordered to pay Petitioner $1,000 (filing fee reimbursement). Civil penalties were deemed inappropriate.

Artesian Ranch Community Association vs. Senol Pekin: A Study Guide on HOA Governance and Legal Disputes

This study guide provides a comprehensive overview of the consolidated legal matters (23F-H034-REL and 23F-H037-REL) involving the Artesian Ranch Community Association and Petitioner Senol Pekin. It explores key concepts of HOA governance, the interpretation of bylaws versus state statutes, and the final rulings of the Administrative Law Judge (ALJ).

1. Core Themes and Key Concepts

Governing Documents and Statutes

The case centers on the hierarchy and interpretation of specific legal documents:

  • HOA Bylaws: Specifically Article II (Annual Meetings), Article III (Organizational Meetings), and Article IV (Officers).
  • A.R.S. § 33-1804 (Arizona Revised Statutes): Part of the Planned Communities Act, which mandates that meetings must be open to all members and allows for the recording of such meetings.
  • A.R.S. § 10-3701(e): A provision of the Nonprofit Corporation Act regarding the validity of corporate actions even if an annual meeting is delayed.
Types of Meetings and Requirements
  • Annual Meeting: Per Bylaw 2.3, this must be held on the second Wednesday of April each year.
  • Organizational Meeting: Per Bylaw 3.7, this must be held within a "reasonable time" after new directors take office to elect officers.
  • Open Session vs. Executive Session: Open sessions allow homeowners to observe and speak; executive sessions are closed for sensitive matters (e.g., legal advice, personnel issues).
Roles and Authority
  • The Board of Directors: Responsible for the affairs of the association. Actions generally require a quorum (a majority of directors).
  • The Community Manager (AAM, LLC): Acts as an agent for the Board. The manager (Mandy Rogers) handles day-to-day operations, including noticing meetings and drafting budgets.
  • Officer Duties: The Secretary/Treasurer (a role assigned to Senol Pekin in 2022) is responsible for minutes and overseeing budget preparation, though the management agent often performs the actual drafting.

2. Summary of Legal Issues and Final Rulings

The following table outlines the five specific issues adjudicated by Administrative Law Judge Velva Moses-Thompson on April 10, 2023.

Issue NumberAllegationFinal Ruling
1Violation of Bylaw 2.3 for not holding the 2022 Annual Meeting in April.Violation Found. Respondent failed to follow the specific date required by Bylaws.
2Failure to hold an "exclusive and timely" Organizational Meeting.No Violation. Bylaws do not require the meeting to be exclusive from other board business.
3Unauthorized calling of a Board Meeting (Sept 22, 2022) by the HOA Manager.No Violation. The meeting was requested by the Board President; the manager acted as an agent.
4Violation of A.R.S. § 33-1804(A) by prohibiting the recording of an open session.Violation Found. Statute explicitly prohibits requiring advance notice for recording.
5Violation of A.R.S. § 33-1804 by muting the Petitioner during a Zoom meeting.No Violation. Evidence showed Petitioner had opportunities to speak; muting was deemed a management tool for conduct.

3. Short-Answer Practice Questions

Q1: According to the Artesian Ranch Bylaws, specifically Section 2.3, when exactly must the regular annual meeting take place?

  • Answer: The second Wednesday of April each year.

Q2: What is the significance of A.R.S. § 33-1804 regarding the recording of board meetings?

  • Answer: It states that persons attending may audiotape or videotape open portions of meetings and that the board shall not require advance notice for such recording.

Q3: Why did the Association claim the 2021 and 2022 meetings were held outside of the required April timeframe?

  • Answer: The Association argued that COVID-19 pushed the calendar off course, leading to an August meeting in 2021 and a May meeting in 2022.

Q4: How does the Administrative Law Judge define a "preponderance of the evidence"?

  • Answer: Proof that convinces the trier of fact that a contention is "more probably true than not," or the "greater weight of the evidence."

Q5: What was the Board’s justification for muting Senol Pekin during the October 24, 2022, Zoom meeting?

  • Answer: The Community Manager testified that he was being combative/aggressive and was attempting to bring up closed Executive Session items during an Open Session.

4. Essay Prompts for Deeper Exploration

  1. The Conflict Between Bylaws and State Statutes: Analyze the ALJ's decision regarding Issue 1 and Issue 4. In Issue 1, the Association argued that a state statute (A.R.S. § 10-3701(e)) excused their failure to follow their own bylaws. In Issue 4, the state statute overrode the Association's internal rules about recording. Discuss the hierarchy of authority in HOA governance based on these rulings.
  2. The Role of Professional Management: Evaluate the testimony of Mandy Rogers (AAM, LLC). To what extent does a management company act as a neutral administrator versus a decision-making entity? Reference the dispute over who "called" the September 2022 meeting in your answer.
  3. Defining "Reasonable Time" and "Organizational Meeting": The Petitioner argued that an organizational meeting should be a standalone event held immediately after directors take office on January 1st. The Board argued that holding it during the first scheduled meeting in August was "reasonable." Critique these opposing views using the Source Context.
  4. Due Process in Virtual Meetings: Discuss the challenges of maintaining a "parliamentary process" in digital formats (e.g., Zoom). How did the ability to "mute" participants impact the legal determination of whether the Petitioner was allowed to voice an opposing side?

5. Glossary of Important Terms

  • A.R.S. § 33-1804: The Arizona statute governing open meetings for homeowners' associations in planned communities.
  • Adjudicated: To make a formal judgment or decision about a problem or disputed matter.
  • Agent: A person or entity (like AAM, LLC) authorized to act on behalf of another (the Board).
  • Combative: A term used by the Respondent to describe the Petitioner's behavior, defined in testimony as being argumentative or conflict-oriented.
  • Consolidated Matter: When multiple separate legal petitions (in this case, two filed by the same Petitioner) are joined into a single hearing.
  • Executive Session: A portion of a board meeting closed to homeowners, restricted to specific topics like legal advice, pending litigation, or personal/financial info of members.
  • Notwithstanding: A legal term meaning "in spite of" or "regardless of." Used in A.R.S. § 33-1804 to show that state law overrides any contrary HOA bylaws.
  • Organizational Meeting: A meeting specifically intended for the board to elect officers (President, Secretary, etc.) among themselves.
  • Prevailing Party: The participant in a lawsuit or hearing who wins on the specific issues presented.
  • Quorum: The minimum number of members (usually a majority) of an assembly that must be present to make the proceedings of that meeting valid.
  • Ultra Vires: A legal term (alluded to by the Petitioner) meaning "beyond the powers." It refers to an act which requires legal authority but is done without it.

HOA Law in Action: Lessons from the Artesian Ranch Legal Battle

In a legal landscape where "technical violations" are often dismissed by boards as trivial inconveniences, the recent ruling in the Artesian Ranch legal battle serves as a $1,000 reminder that governing documents are not mere suggestions. The consolidated cases of Senol Pekin v. Artesian Ranch Community Association (Nos. 23F-H034-REL and 23F-H037-REL) offer a masterclass in the friction between homeowner rights and board authority.

Adjudicated by the Arizona Office of Administrative Hearings (OAH) on behalf of the Arizona Department of Real Estate, this dispute underscores a critical reality for community leaders: administrative oversight exists to ensure that the "business" of an HOA is conducted with the transparency and procedural integrity required by law. For homeowners and board members alike, the findings regarding meeting conduct, the right to record, and strict bylaw adherence provide a definitive roadmap for modern HOA governance.

The Five Charges: A Summary of the Dispute

The litigation involved five specific charges brought by Petitioner Senol Pekin against the Association. The proceedings featured testimony from Mr. Pekin, Board President Susanne Roskens, and Community Manager Mandy Rogers of AAM, LLC.

Petitioner’s Allegations vs. Legal Basis
AllegationSpecific Bylaw or Arizona Revised Statute (A.R.S.)
1. Annual Meeting Timing: Failure to hold the 2022 Annual Meeting on the date required by the governing documents.Bylaws Art. II, § 2.3
2. Organizational Meeting: Failure to elect officers in an exclusively scheduled and timely manner.Bylaws Art. III, § 3.5 & 3.7; Art. IV, § 4.2
3. Unauthorized Meeting Call: A September 2022 meeting called by the Manager without Board authority.Bylaws Art. III, § B; Art. IV, § 6.7(b); Agency Law
4. Recording Prohibition: Prohibiting residents from recording the open session of the October 2022 meeting.A.R.S. § 33-1804
5. Unfair Muting: Silencing the Petitioner during a Zoom meeting, preventing the "opposing side" from being heard.A.R.S. § 33-1804

Victory for Transparency: The Right to Record

A primary flashpoint of the dispute occurred during the October 24, 2022, board meeting. Testimony revealed that Mandy Rogers, acting for the Association, prohibited residents from recording the session. The Association argued that they required advance notice for recording and cited concerns regarding privacy.

Administrative Law Judge (ALJ) Velva Moses-Thompson found this to be a clear violation of A.R.S. § 33-1804. The statute is unambiguous: homeowners have a statutory right to record any portion of a meeting that is open to the membership. Boards cannot use "privacy concerns" or "proprietary technology" as a pretext to bypass the Arizona Planned Communities Act.

Pro-Tips for Homeowners and Boards:

  • No Advance Notice Needed: Associations are legally barred from requiring homeowners to provide notice before recording an open session.
  • Open vs. Closed: Recording rights apply strictly to open sessions. Boards maintain the right to prohibit recording during executive (closed) sessions where sensitive legal or personnel matters are discussed.
  • Rule Limitations: While boards may adopt "reasonable rules" for recording (such as tripod placement), they cannot preclude it unless the board provides its own unedited recording to members upon request.

The Letter of the Law: Why Meeting Dates Matter

The dispute over the 2022 Annual Meeting date highlights a common pitfall for HOAs: the "lack of harm" defense. The Artesian Ranch Bylaws require the annual meeting to be held on the second Wednesday of April; however, the Association held it in May.

The Association’s defense—that the violation was "technical," driven by a schedule push from the COVID-19 pandemic, and resulted in no harm—was flatly rejected. While A.R.S. § 10-3701(e) ensures that corporate actions remain valid even if a meeting is late, the ALJ clarified that this statute does not grant boards a "free pass" to ignore specific timing requirements.

The Expert Insight: Compliance is not optional based on the perceived scale of the error. When governing documents dictate a date, the board is legally bound to it. Deviating because of "convenience" or "past practice" invites litigation and erodes the community's trust in the rule of law.

Where the Board Prevailed: Authority and "Combative" Conduct

The Association was deemed the prevailing party on Issues 2, 3, and 5, largely due to the Petitioner’s failure to meet the burden of proof.

The Meeting Call and the Agency Lesson

The Petitioner argued that Mandy Rogers (AAM) called the September 22 meeting without authority. However, the court found the call legitimate because the manager acted as an agent for Board President Susanne Roskens. For boards, the lesson is clear: a manager can legally call a meeting on the President’s behalf, but the agency relationship must be clear. Documentation of such authorizations is the ultimate shield against claims of "ultra vires" (unauthorized) actions.

The "Mute Button" and the Human Cost

The debate over Zoom conduct provided a window into the breakdown of community trust. Manager Mandy Rogers defended the use of the mute button by stating:

"Mute is an option that is utilized when we have combative board members and members of the association in attendance."

While the ALJ found that the Petitioner failed to prove he was silenced unfairly—noting he had multiple opportunities to speak—the testimony of witness Shelly Nelson provided a sobering contrast. Nelson described the muting as "antagonistic," noting it felt particularly egregious when the board prioritized "aesthetics" (overseeding) while residents were trying to address "health and safety" (a mosquito and dry well crisis). This illustrates that even when a board’s use of technology is legally defensible, its use to stifle dissent can make a community feel silenced.

Bylaw Ambiguity

Regarding Issue 2, the Respondent’s counsel argued that the Petitioner's interpretation of a January 1st start date for directors failed the "common sense test." These bylaws, drafted by a developer who later went bankrupt, were poorly constructed. The takeaway for boards is that when governing documents are ambiguous or outdated, legal interpretation should be sought before a dispute arises, rather than as a defense during a hearing.

The Final Verdict: Financial and Governance Outcomes

ALJ Velva Moses-Thompson issued a balanced final order:

  • Petitioner Prevails: On Issue 1 (Annual Meeting timing) and Issue 4 (Recording rights).
  • Respondent Prevails: On Issue 2 (Organizational meetings), Issue 3 (Meeting calls), and Issue 5 (Muting/Conduct).
  • Financial Reimbursement: The Association was ordered to reimburse the Petitioner $1,000 for his filing fees.
  • No Civil Penalty: The Judge determined that an additional civil penalty was not appropriate, as the reimbursement of fees served as a sufficient remedy.

Conclusion: Three Pillars of Better HOA Governance

The Artesian Ranch case provides a definitive set of guidelines for associations moving forward:

  1. Bylaws are Not Suggestions: Procedural rules regarding timing and elections must be followed strictly. A "technical violation" is a legal liability, regardless of whether a homeowner can prove "harm."
  2. Technology as a Tool, Not a Shield: Zoom features like the "mute" button should facilitate order, not serve as a weapon to shut down unpopular dialogue. Prioritizing aesthetics over safety concerns in a public forum is a recipe for toxic community relations.
  3. Transparency is a Statutory Right: The right to record is a cornerstone of Arizona law. Managers and boards must be educated on A.R.S. § 33-1804 to ensure they do not inadvertently infringe upon homeowner rights.

Boards and residents are encouraged to review their own governing documents and meeting protocols immediately to ensure alignment with Arizona law and prevent similar, costly litigation.

Case Participants

Petitioner Side

  • Senol Pekin (Petitioner)
    Appeared on behalf of himself
  • Shelley Nelson (Witness)
    Resident, testified on behalf of Petitioner
  • Sherry Swanson (Witness)
    Homeowner, testified on behalf of Petitioner
  • Julie Willowby (Witness)
    Testified on behalf of Petitioner

Respondent Side

  • Ashley N. Moscarello (Attorney)
    goodlaw.legal
    Appeared on behalf of Respondent Artesian Ranch Community Association
  • Mandy Rogers (Witness / Community Manager)
    AAM, LLC
    Employee of Respondent's Community Manager
  • Susanne Easterday Roskens (Witness / Board Director)
    Artesian Ranch Community Association
    Board President
  • Dennis Berger (Board Director)
    Artesian Ranch Community Association

Neutral Parties

  • Velva Moses-Thompson (Administrative Law Judge)
    Office of Administrative Hearings
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate

Senol Pekin v. Artesian Ranch Community Association

Posted on by

Case Summary

Case ID23F-H037-REL
Agency—
Tribunal—
Decision Date2023-04-10
Administrative Law JudgeVMT
Outcomecomplete
Filing Fees Refunded—
Civil Penalties—

Parties & Counsel

PetitionerSenol PekinCounselPro Se
RespondentArtesian Ranch Community AssociationCounselAshley N. Moscarello, Esq., Daniel S. Francom, Esq., Goodman Law Group

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

23F-H037-REL Decision – 1037672.pdf

Uploaded 2026-04-24T12:04:22 (49.3 KB)

23F-H037-REL Decision – 1041383.pdf

Uploaded 2026-04-24T12:04:28 (50.6 KB)

23F-H037-REL Decision – 1044671.pdf

Uploaded 2026-04-24T12:04:33 (166.9 KB)

23F-H037-REL Decision – 1044839.pdf

Uploaded 2026-04-24T12:04:38 (36.5 KB)

23F-H037-REL Decision – 1048179.pdf

Uploaded 2026-04-24T12:04:43 (105.1 KB)

23F-H037-REL Decision – 1054714.pdf

Uploaded 2026-04-24T12:04:47 (47.2 KB)

Briefing: Dispute and Resolution – Pekin vs. Artesian Ranch Community Association

Executive Summary

This briefing document summarizes the legal proceedings and administrative decisions regarding the dispute between Petitioner Senol Pekin and Respondent Artesian Ranch Community Association. The matter, involving consolidated dockets No. 23F-H034-REL and No. 23F-H037-REL, was heard before the Office of Administrative Hearings (OAH) on March 20, 2023, under the jurisdiction of Administrative Law Judge Velva Moses-Thompson.

The Petitioner alleged five distinct violations of the Association’s Bylaws and the Arizona Planned Communities Act (A.R.S. §§ 33-1801 to 33-1818). The Administrative Law Judge (ALJ) concluded that the Association violated its Bylaws by failing to hold its 2022 annual meeting on the prescribed date and violated state law by prohibiting members from recording open board sessions. Consequently, the Petitioner was deemed the prevailing party on these issues, and the Association was ordered to reimburse the $1,000 filing fee. Claims regarding the timing of organizational meetings, the authority of the HOA manager to schedule meetings, and the muting of members during Zoom calls were dismissed.

Detailed Analysis of Key Themes

1. Adherence to Governing Documents and Bylaws

A central theme of the dispute was the Association's failure to strictly follow its own Bylaws regarding meeting schedules.

  • Annual Meeting Requirement: Bylaws Article II, Section 2.3 requires the regular annual meeting to be held on the second Wednesday of April. In 2022, the Association held this meeting in May instead.
  • The "Technical Violation" Defense: The Association argued this was a "technical violation" with no harm to the Petitioner, citing A.R.S. § 10-3701(e). However, the ALJ ruled that while state statute may protect the validity of corporate actions taken during late meetings, it does not provide an exception for failing to adhere to the specific timing requirements set forth in the Bylaws.
2. Member Rights and Open Meeting Statutes

The case highlighted the tension between HOA management and member rights under A.R.S. § 33-1804.

  • Recording of Meetings: During an October 24, 2022, meeting, the Community Manager informed homeowners they could not record the session. The ALJ found this to be a direct violation of A.R.S. § 33-1804(A), which explicitly permits attendees to audiotape or videotape open portions of meetings.
  • Notice and Restrictions: The Association attempted to require advanced notice for recording, but the ALJ noted that the law prohibits boards from requiring such notice.
  • Participation and "Muting": The Petitioner alleged that the Association muted opposing viewpoints during Zoom meetings. The ALJ ruled in favor of the Association on this point, finding that the Petitioner was given several opportunities to speak and that the muting was a response to "generally aggressive" behavior rather than a systematic effort to silence dissent.
3. Governance and Administrative Authority

The proceedings clarified the roles of the Board versus the Community Manager (AAM, LLC).

  • Organizational Meetings: The Petitioner argued that officers must be elected in a separate, exclusively scheduled organizational meeting. The ALJ disagreed, noting that Bylaws do not require these meetings to be held separately from regular board meetings.
  • Managerial Agency: The Petitioner challenged the HOA Manager's authority to schedule board meetings. The ALJ ruled that a Community Manager, as an employee of the management firm (AAM, LLC), may act as an agent of the Board.
4. Evidentiary and Procedural Rulings
  • Subpoenas: The court managed multiple subpoenas for witnesses including Mandy Rogers, Susanne Roskens, and others. Notably, a subpoena for Dennis Berger was quashed, and the subpoena for Mandy Rogers was limited to her attendance, exempting her from producing documents.
  • Closure of Record: Following the March 20, 2023, hearing, the Petitioner attempted to file additional allegations and the Respondent filed a response. These were rejected by the ALJ as the record had officially closed at the conclusion of the hearing.

Important Quotes with Context

QuoteContext
"Subsequent regular annual meetings shall be held on the second Wednesday of April of each year."Found in the Respondent’s Bylaws (Article II, Section 2.3), this served as the basis for the finding that the Association was in violation by holding its meeting in May.
"The board of directors of the association shall not require advance notice of the audiotaping or videotaping…"A critical excerpt from A.R.S. § 33-1804(A) used by the ALJ to determine that the Association's prohibition on recording was unlawful.
"The section does not provide an exception to the adherence to Bylaws that require a set time for an annual meeting."The ALJ’s rebuttal to the Association’s defense that their late annual meeting was merely a "technical violation."
"Ms. Rogers explained that she placed Petitioner on mute because he was generally aggressive."Testimony regarding the Association's conduct during the October 24, 2022, Zoom meeting, which the ALJ accepted as a reasonable management of the meeting.
"Petitioner be deemed the prevailing party regarding issues 1 and 4… Respondent pay Petitioner his filing fee of $1,000."The final order regarding the financial consequences of the Association's violations.

Actionable Insights

For Homeowners' Association Boards
  • Strict Bylaw Compliance: Boards must treat the specific dates and procedures outlined in their Bylaws as mandatory. "Technical violations" regarding meeting dates are still legally actionable and can result in the Association paying the Petitioner's filing fees.
  • Recording Policy Update: Associations should immediately cease any policy requiring advance notice for recording open meetings. While boards can adopt "reasonable rules" for recording, they cannot preclude the act of recording itself unless the Association provides its own unedited recording to members.
  • Managerial Conduct: Community managers should be trained to clearly distinguish between closed (executive) and open sessions when communicating rules about recording and participation to avoid inadvertently violating state statutes.
Regarding Dispute Resolution
  • Record Integrity: Once a hearing concludes, no further evidence or allegations can be introduced. Parties must ensure all relevant documentation and testimony are presented during the scheduled hearing.
  • Rehearing Procedures: If a party is dissatisfied with an ALJ decision, the request for a rehearing must be filed with the Commissioner of the Arizona Department of Real Estate (ADRE) within 30 days, as the Office of Administrative Hearings (OAH) loses jurisdiction once a decision is rendered.
  • Conflict of Interest in Meetings: As noted in internal Association communications, if a Board member has filed a petition against the Association, they may be required to recuse themselves or log off during executive sessions where their specific legal matter is being discussed with the Association's attorney.

Study Guide: Pekin v. Artesian Ranch Community Association

This study guide provides a comprehensive overview of the administrative legal proceedings between Senol Pekin (Petitioner) and the Artesian Ranch Community Association (Respondent). It covers the legal framework, procedural history, specific allegations, and final rulings issued by the Office of Administrative Hearings (OAH).

I. Case Overview and Legal Framework

Jurisdiction and Authority

The matter was adjudicated by the Arizona Office of Administrative Hearings (OAH) under the authority of the Arizona Department of Real Estate (ADRE).

  • Governing Law: The proceedings are governed by Title 33, Chapter 16 of the Arizona Revised Statutes, known as the Planned Communities Act (A.R.S. §§ 33-1801 to 33-1818).
  • Adjudicator: Administrative Law Judge (ALJ) Velva Moses-Thompson.
Case Identification
  • Petitioner: Senol Pekin.
  • Respondent: Artesian Ranch Community Association.
  • Docket Numbers: 23F-H034-REL and 23F-H037-REL (Consolidated).

II. Procedural History and Significant Events

DateEventDescription
January 25, 2023Notice of HearingADRE sets the initial hearing dates.
February 28, 2023Consolidation OrderThe ALJ consolidates the two dockets and sets a single hearing for March 20, 2023.
February 28, 2023Subpoena IssuanceSubpoenas issued for Mandy Rogers, Susanne Roskens, Dennis Berger, Brock O’Neal, Julie Willoughby, Shelley Nelson, and Sherry Swanson.
March 13, 2023Order on SubpoenasDennis Berger's subpoena is quashed. Mandy Rogers' subpoena is limited to attendance (no document production). Other motions to quash are denied.
March 20, 2023Administrative HearingThe hearing convenes at 9:00 AM.
March 28, 2023Minute EntryThe ALJ refuses to consider documents filed after March 20, 2023, as the record was closed.
April 10, 2023Final DecisionThe ALJ issues the official Findings of Fact and Conclusions of Law.
May 8, 2023Rehearing RequestA request for rehearing is filed but forwarded to the ADRE as the OAH loses jurisdiction after a decision is rendered.

III. Summary of Allegations and Judgments

The Petitioner raised five specific issues regarding the Association's adherence to its Bylaws and Arizona law.

Issue 1: Annual Meeting Frequency
  • Allegation: The Association violated Bylaws Article II, Paragraph 2.3 by failing to hold its 2022 annual meeting on the second Wednesday of April.
  • Evidence: The Association held the meeting in May 2022 instead of April.
  • Ruling: Violation Found. While A.R.S. § 10-3701(e) protects the validity of corporate actions despite timing errors, it does not exempt the Association from adhering to its own Bylaws.
Issue 2: Organizational Meetings
  • Allegation: Officers were not elected in a timely or exclusively scheduled Organizational Meeting as required by Bylaws.
  • Evidence: The Board appointed officers during a regular board meeting in August 2022.
  • Ruling: No Violation. The Bylaws do not require the organizational meeting to be held separately from other board meetings.
Issue 3: Authority to Call Meetings
  • Allegation: A meeting on September 22, 2022, was organized by the HOA Manager, who Petitioner argued lacked the authority to call meetings.
  • Evidence: Board President Susanne Roskens requested Mandy Rogers (Community Manager) to organize the meeting to address a landscaping issue.
  • Ruling: No Violation. The Community Manager acts as an agent of the Board.
Issue 4: Recording Open Sessions
  • Allegation: The Association violated A.R.S. § 33-1804(A) by prohibiting the recording of the open session on October 24, 2022.
  • Evidence: Mandy Rogers informed homeowners they could not record without clarifying that the rule only applied to closed sessions and stated that the Board required advanced notice.
  • Ruling: Violation Found. State law explicitly allows audio and video recording of open meetings and forbids the Board from requiring advance notice.
Issue 5: Participant Participation (Muting)
  • Allegation: The Association muted opposing sides during a Zoom meeting on October 24, 2022, preventing them from speaking.
  • Evidence: The Petitioner was muted due to "aggressive" behavior, but evidence showed he still had multiple opportunities to speak.
  • Ruling: No Violation. Boards may place reasonable time and conduct restrictions on speakers.

IV. Short-Answer Practice Questions

  1. What is the "Preponderance of the Evidence" standard?
  • Answer: It is a standard of proof where the evidence must show that a contention is "more probably true than not," or has the "most convincing force."
  1. Which party bears the burden of proof in an OAH hearing regarding a planned community dispute?
  • Answer: The Petitioner (Senol Pekin) bears the burden of proof to establish violations.
  1. Why did the ALJ refuse to consider the documents filed on March 27 and March 28, 2023?
  • Answer: The evidentiary record was closed on the day of the hearing, March 20, 2023.
  1. According to A.R.S. § 33-1804, what are the rules regarding advanced notice for recording a meeting?
  • Answer: The board of directors shall not require advance notice of audiotaping or videotaping of open portions of meetings.
  1. What was the financial penalty imposed on the Respondent for the violations found?
  • Answer: The Association was ordered to pay the Petitioner's $1,000 filing fee. No other civil penalty was deemed appropriate.

V. Essay Prompts for Deeper Exploration

  1. The Intersection of Corporate Validity and Bylaw Adherence: Analyze the ALJ's reasoning in Issue 1. How does the decision balance A.R.S. § 10-3701(e) (which validates corporate actions despite timing errors) with the mandatory nature of Association Bylaws?
  2. Agency and Authority in HOA Management: Discuss the ruling on Issue 3 regarding the Community Manager's role. To what extent can a third-party management firm (like AAM, LLC) exercise the powers of the Board of Directors?
  3. Open Meeting Rights vs. Orderly Conduct: Using Issue 5 as a reference, explore the legal limits of a Board's power to "mute" or restrict participants in a digital meeting format. Where is the line between "reasonable time restrictions" and the suppression of "opposing sides"?

VI. Glossary of Important Terms

  • Administrative Law Judge (ALJ): An official who presides over an administrative hearing and serves as the trier of fact and law.
  • A.R.S. § 33-1804: The specific Arizona statute governing open meetings, the right to speak, and the right to record meetings within planned communities.
  • CAAM: Certified Arizona Association Manager (referencing the title of Mandy Rogers).
  • Consolidation: The legal process of joining two or more separate cases (dockets) into one when they involve common questions of law or fact.
  • Organizational Meeting: A meeting held within a reasonable time after directors take office to elect officers (e.g., President, Secretary).
  • Planned Communities Act: The section of Arizona law (Title 33, Chapter 16) that regulates the formation and management of HOAs.
  • Quash: A legal term meaning to nullify or void, specifically used here regarding a subpoena for Dennis Berger.
  • Respondent: The party against whom a petition is filed (in this case, the Artesian Ranch Community Association).

HOA Accountability in Action: Key Lessons from the Pekin vs. Artesian Ranch Ruling

In the complex ecosystem of Arizona planned communities, the relationship between homeowners and their Board of Directors often fractures when governance becomes opaque or rules are applied inconsistently. While many disputes are settled through internal grievance processes, some reach a boiling point where legal intervention is the only path to clarity.

The case of Senol Pekin vs. Artesian Ranch Community Association (No. 23F-H034-REL) stands as a significant real-world example of a homeowner successfully seeking recourse through the Arizona Office of Administrative Hearings (OAH). This ruling stands as a cautionary tale for Boards who treat Bylaws as optional and a roadmap for homeowners seeking to enforce statutory transparency.

The Core Allegations: A Five-Point Dispute

The Petitioner’s challenge centered on five specific allegations, asserting that the Association repeatedly failed to adhere to its own governing documents and Arizona law. According to the Findings of Fact, the dispute involved:

  • Failure to Hold Annual Meetings: Violation of Bylaws Article II, Paragraph 2.3 by failing to hold the 2022 annual meeting on the required date.
  • Improper Election Procedures: Failure to elect officers during an exclusively and timely scheduled Organizational Meeting.
  • Unauthorized Meeting Organization: Alleging a September 2022 board meeting was invalid because it was organized by the Community Manager rather than the Board.
  • Prohibition of Recording: Violation of A.R.S. § 33-1804 by prohibiting a member from recording an open session on October 24, 2022.
  • Muting of Participants: Alleging that muting the Petitioner during a Zoom-based meeting prevented "the opposing side" from being heard, in violation of state law.

Victory for Transparency: The Ruling on Recording and Bylaws

The Administrative Law Judge (ALJ) ruled in favor of the Petitioner on two critical issues, delivering a stern reminder that internal governing documents carry the weight of law.

Annual Meeting Violations

The Association’s Bylaws (Article II, Paragraph 2.3) explicitly mandate that regular annual meetings be held on the second Wednesday of April. In 2022, the Association unilaterally moved this meeting to May. The Association defended this as a "technical violation" that resulted in no harm, citing A.R.S. § 10-3701(e).

However, the ALJ rejected this defense with a nuance every Board must understand: while A.R.S. § 10-3701(e) protects the validity of corporate actions taken despite timing errors, it does not provide immunity from suit or an exception for associations to ignore their own Bylaws. Adherence to mandated timeframes is a requirement, not a suggestion.

The Right to Record

The most significant win for transparency involved the Board’s attempt to restrict meeting recordings.

STATUTORY PROTECTIONS: A.R.S. § 33-1804 Arizona law is clear: persons attending open board meetings may audiotape or videotape the proceedings. The Board of Directors cannot require advance notice for recording and cannot preclude it unless the Board itself provides its own unedited recordings to members upon request. Rules may be adopted to govern recording, but they cannot be used to effectively prohibit the practice.

The ALJ found the Association in direct violation after the Community Manager informed homeowners they could not record and falsely claimed the Board required advance notice.

Financial and Reputational Outcome

While the ALJ determined a civil penalty was not warranted, the Association was ordered to reimburse the Petitioner’s $1,000 filing fee. Beyond the dollar amount, the reputational cost of being declared the non-compliant party in a public ruling is a heavy burden for any Board.

The Limits of Claims: Where the Association Prevailed

The ruling also clarified the boundaries of Board authority, finding in favor of the Association on three counts:

  1. Organizational Meetings: The ALJ ruled that Bylaws do not require "organizational meetings" (where officers are elected) to be a standalone event; they may occur within the context of a regular board meeting.
  2. Management Agency: The Petitioner’s claim that a meeting was invalid because the HOA Manager organized it was dismissed. The evidence showed Board President Susanne Roskens specifically requested Manager Mandy Rogers (of AAM, LLC) to schedule the meeting to address urgent landscaping issues. The ALJ affirmed that management companies act as authorized agents of the Board.
  3. The "Muting" Threshold: Under A.R.S. § 33-1804, a Board must allow a "reasonable number of persons to speak on each side." While the Petitioner was muted during a Zoom session due to "aggressive behavior," the ALJ found no violation because the evidence showed Pekin still had several other opportunities to speak. Muting is not an automatic violation if the "opposing side" is still given a reasonable chance to be heard.

Procedural Reality Check: The Life Cycle of an HOA Dispute

This case illustrates the complex procedural hurdles involved in OAH litigation. For homeowners and boards alike, the timeline is everything:

  • February 28, 2023: The ALJ consolidated two separate dockets (23F-H034-REL and 23F-H037-REL) to streamline the hearing.
  • March 13, 2023: A significant discovery ruling occurred. The ALJ quashed the subpoena for Dennis Berger but maintained subpoenas for Susanne Roskens, Brock O’Neal, and others, demonstrating the limits of who can be compelled to testify.
  • March 20, 2023: The official Record Closing date. This is the "point of no return" for evidence.
  • March 27 & 28, 2023: The Petitioner attempted to file additional allegations and evidence. The ALJ issued a Minute Entry refusing to consider these filings, as they were submitted after the record had closed.
  • Post-Decision: After the final order in April, the Petitioner sought a rehearing. The OAH issued a Minute Entry stating it lost jurisdiction the moment the decision was rendered. Any further requests for rehearing must be directed to the Arizona Department of Real Estate (ADRE).

Essential Takeaways for Homeowners and Boards

  1. Bylaws are Not Suggestions: Even "technical" timing shifts regarding annual meetings are actionable violations. Boards cannot use A.R.S. § 10-3701(e) as a shield to ignore their own governing documents.
  2. Recording is a Statutory Right: Boards cannot impose arbitrary hurdles, such as mandatory advance notice, on members wishing to record open meetings. Transparency is a protected right under A.R.S. § 33-1804.
  3. The Record is Final: In an administrative hearing, the window for evidence is narrow. As seen with the rejected March 27/28 filings, late submissions—no matter how relevant they seem—will be ignored once the record is closed.

Conclusion: Seeking Harmony Through Compliance

The Pekin vs. Artesian Ranch ruling serves as a vital reminder: transparency is not just a best practice; in Arizona, it is a legal mandate. While the Association prevailed on internal management issues, their failure to respect recording rights and bylaw-mandated schedules resulted in a $1,000 reimbursement order and a public record of non-compliance. To maintain community harmony and avoid the costs of litigation, both homeowners and board members must anchor their actions in a strict reading of A.R.S. § 33-1804.

Case Participants

Petitioner Side

  • Senol Pekin (Petitioner)
    Testified on his own behalf
  • Julie Willoughby (Witness)
    Testified for Petitioner; also spelled Julie Willowby in hearing decision
  • Shelley Nelson (Witness)
    Testified for Petitioner; also spelled Shelly Nelson in hearing decision
  • Sherry Swanson (Witness)
    Testified for Petitioner

Respondent Side

  • Ashley N. Moscarello (Attorney)
    Goodman Law Group
    Appeared on behalf of Respondent Artesian Ranch Community Association
  • Daniel S. Francom (Attorney)
    Goodman Law Group
    Listed in service records for Respondent
  • Susanne Easterday Roskens (Director of Board / Witness)
    Artesian Ranch Community Association
    Testified for Respondent; Board President
  • Mandy Rogers (Community Manager Employee / Witness)
    AAM, LLC
    Employee of Respondent's Community Manager; organized meetings and testified

Neutral Parties

  • Velva Moses-Thompson (Administrative Law Judge)
    Office of Administrative Hearings
    Assigned judge who issued the decision and orders
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
    Received administrative copies of orders and decisions

Other Participants

  • Dennis Berger (Subpoenaed Individual)
    Subpoena was quashed
  • Brock O'Neal (Subpoenaed Individual)
    Motion to quash his subpoena was denied

Anthony T Horn v. Sun Lakes Homeowners Association #1, Inc.

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Case Summary

Case ID22F-H2221017-REL-RHG
AgencyADRE
TribunalOAH
Decision Date2022-08-22
Administrative Law JudgeVelva Moses-Thompson
Outcomeloss
Filing Fees Refunded$500.00
Civil Penalties$0.00

Parties & Counsel

PetitionerAnthony T HornCounsel—
RespondentSun Lakes Homeowners Association #1, Inc.CounselEmily H. Mann, Esq.

Alleged Violations

A.R.S. § 33-1804(F)

Outcome Summary

The Administrative Law Judge dismissed the Petitioner’s single-issue petition, finding that the Respondent HOA did not violate A.R.S. § 33-1804(F) regarding the July 6, 2021 board meeting, and alternatively, any potential violation was cured by the proper notice and vote taken at the November 9, 2021 board meeting.

Why this result: The ALJ concluded that the HOA properly notified members of the matter to be discussed at the July 6, 2021 meeting (tennis court upgrade/repair). Furthermore, any potential violation was cured by the explicit notice and second unanimous vote taken at the November 9, 2021 board meeting.

Key Issues & Findings

Open Meetings/Notice/Ability to Speak (July 6, 2021 Board Meeting)

Petitioner alleged the HOA violated ARS 33-1804(F) because the July 6, 2021 agenda item ‘Tennis Courts Upgrade & Repair’ did not adequately disclose the conversion of one tennis court into four pickleball courts. The ALJ found the initial notice was sufficient, and alternatively, any violation was cured by a subsequent November 9, 2021 meeting with explicit notice and a second vote.

Orders: The Administrative Law Judge concluded that the Respondent did not violate A.R.S. § 33-1804(F) with respect to the July 6, 2021 board meeting. Petitioner’s petition was dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:
  • ARS 33-1804(F)

Analytics Highlights

Topics: HOA Open Meeting Violation, Notice and Agenda Requirement, Cure Doctrine, Tennis Court Conversion, Pickleball
Additional Citations:
  • A.R.S. § 33-1804(F)
  • A.R.S. § 32-2199(B)
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 33-1803

Video Overview

Audio Overview

Decision Documents

22F-H2221017-REL Decision – 964044.pdf

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22F-H2221017-REL Decision – 970320.pdf

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22F-H2221017-REL Decision – 974011.pdf

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22F-H2221017-REL Decision – 982006.pdf

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22F-H2221017-REL Decision – 982097.pdf

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22F-H2221017-REL Decision – 994010.pdf

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22F-H2221017-REL Decision – 948254.pdf

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Briefing Document: Horn v. Sun Lakes Homeowners Association #1, Inc.

Executive Summary

This document synthesizes the legal dispute, procedural history, and final judgment in the case of Anthony T. Horn (Petitioner) versus Sun Lakes Homeowners Association #1, Inc. (Respondent), adjudicated by the Arizona Office of Administrative Hearings. The core of the dispute centers on the petitioner’s allegation that the respondent violated Arizona Revised Statutes (A.R.S.) § 33-1804(F) by failing to provide adequate notice for its July 6, 2021, Board of Directors meeting.

The petitioner claimed that the agenda item “Tennis Courts Upgrade & Repair” was insufficient to inform members of the board’s plan to convert a tennis court into four pickleball courts, a decision that “blindsided” affected homeowners. In response, the HOA maintained a two-pronged defense: first, that the notice was legally sufficient, and second, that any potential procedural error was “unequivocally cured” by a subsequent board meeting on November 9, 2021, which featured an explicit agenda item detailing the conversion and at which the petitioner was present.

Following an initial dismissal and a subsequent rehearing, Administrative Law Judge Velva Moses-Thompson strictly limited the scope of the proceedings to the single alleged statutory violation. Ultimately, the judge dismissed the petition, issuing a definitive two-part ruling: 1) the notice for the July 6, 2021, meeting did comply with state law, and 2) even if it had not, the violation was cured by the actions taken for the November 9, 2021, meeting.

Case Overview

Parties Involved

Name / Entity

Petitioner

Anthony T. Horn

Respondent

Sun Lakes Homeowners Association #1, Inc.

Respondent Counsel

Emily H. Mann, Esq.

Presiding Judge

Administrative Law Judge Velva Moses-Thompson

Case Chronology

• July 6, 2021: The HOA Board of Directors holds an open meeting and unanimously approves “Motion 3: Tennis Courts Upgrade & Repair,” which includes the conversion of one tennis court to four pickleball courts.

• August 2021: Petitioner Anthony T. Horn files a dispute regarding the meeting.

• October 13, 2021: The Arizona Department of Real Estate receives Horn’s formal petition alleging a violation of A.R.S. § 33-1804(F).

• November 9, 2021: The HOA holds a second board meeting to vote again on the conversion. The agenda explicitly details the plan, and the board unanimously re-approves it. Horn attends this meeting.

• February 15, 2022: The Administrative Law Judge (ALJ) grants the HOA’s motion for summary judgment and dismisses the petition due to a lack of response from the petitioner.

• Post-February 15, 2022: Horn files a timely request for a rehearing.

• May 26, 2022: A telephonic pre-hearing conference is held to clarify issues and the scope of the rehearing.

• July 6, 2022: The ALJ issues an order limiting the rehearing to the single alleged violation concerning the July 6, 2021, meeting, while allowing the HOA’s “cure” defense related to the November 9 meeting.

• August 1, 2022: The evidentiary rehearing is conducted.

• August 22, 2022: The ALJ issues a final decision dismissing the petitioner’s petition.

Core Legal Dispute: A.R.S. § 33-1804(F)

The central legal question revolved around compliance with A.R.S. § 33-1804(F), which establishes the state’s policy on open meetings for planned communities. The statute requires that:

“…notices and agendas be provided for those meetings that contain the information that is reasonably necessary to inform the members of the matters to be discussed or decided and to ensure that members have the ability to speak after discussion of agenda items, but before a vote of the board of directors or members is taken.”

The statute further mandates that its provisions be construed “in favor of open meetings.”

Petitioner’s Position and Arguments (Anthony T. Horn)

Primary Allegation: Insufficient Notice

The petitioner’s case was predicated on the argument that the agenda for the July 6, 2021, meeting was misleading. The motion was described as: Motion 3: Tennis Courts Upgrade & Repair – Fiscal Impact $76,439 from the Reserve Fund. Horn contended that this language failed to inform homeowners of the board’s intent to make a “major change” by converting a tennis court to pickleball courts.

• Key Quote: During the rehearing, Horn described his reaction at the July 6 meeting: “We were shocked. Just a complete uh something coming from the left field. We had no idea that anything like this was planned.”

Argument Against the “Cure” Defense

Horn argued that the November 9, 2021, meeting should not be considered a valid cure because it only occurred as a direct result of his formal dispute. He framed this as an unfair “catch 22.”

• Key Quote: In his closing argument, Horn stated: “The only reason that November 9th meeting and that motion ever showed up there was because of my dispute. So, it’s kind of a catch 22. Uh you in other words, I file a dispute and then they just change the language and then my dispute is nullified and I just lose my $500 and go away. That ain’t fair.”

Ancillary Issues Ruled Out of Scope

Throughout the proceedings, Horn attempted to introduce several related grievances, which the ALJ consistently ruled were outside the narrow scope of his single-issue petition. These included:

• Allegations of discrimination, claiming pickleball members were included in vendor discussions while tennis club members were excluded.

• Concerns about the HOA’s method of communication, arguing that “eblasts” are inappropriate for a senior community and that mail or hand delivery should be used.

• Disagreement with the soundness of the board’s decision itself.

Respondent’s Position and Defense (Sun Lakes HOA)

Defense of the July 6 Meeting

The HOA, through its counsel Emily Mann and witness Kelly Haynes, argued that the notice for the July 6 meeting was fully compliant with the statute. The term “upgrade and repair” was deemed sufficient to encompass the conversion. They presented the petitioner’s own attendance at the meeting as prime evidence that the notice was effective in informing members that tennis courts would be a topic of discussion.

Affirmative Defense of “Cure”

The HOA’s primary defense was that, even assuming a procedural flaw in the first meeting’s notice, the error was “unequivocally cured” by the November 9, 2021, meeting. The notice for that meeting was explicit: Motion #3 – Clarification of Motion 3 of the July 6, 2021 Board Meeting – Conversion of Court 1 to four Permanent Pickleball Courts. The petitioner attended, members were given the opportunity to speak, and the board voted again, removing any ambiguity.

Characterization of Petitioner’s Motive

Respondent’s counsel portrayed the petition as being driven by dissatisfaction with the board’s decision rather than a genuine concern for procedural integrity. It was noted that the association had spent thousands of dollars defending the petition and had twice offered to pay Horn $500—the maximum penalty available—to resolve the matter, both of which he rejected.

• Key Quote: In her opening statement, counsel stated: “This hearing today is about Mr. Horn seeking revenge against the association for the tennis court conversion. He couldn’t stop the conversion from taking place. So punishing the association by filing a meritless petition was the next best thing.”

Final Decision and Rationale

In the final decision dated August 22, 2022, ALJ Velva Moses-Thompson dismissed the petition. The ruling was based on a two-part conclusion that fully supported the respondent’s position.

1. The July 6 Notice Was Sufficient: The ALJ concluded that the “preponderance of the evidence” showed the notice provided the “information that was reasonably necessary.” The decision explicitly states: “Sun Lakes was not required to specify the method of upgrade: a conversion to pickleball courts.”

2. The Violation, If Any, Was Cured: The decision further established that, even if the first notice had been deficient, the HOA rectified the situation. “Even if Sun Lakes had violated A.R.S. § 33-1804(F) with respect to the July 6, 2021, Sun Lakes cured the violation when it provided timely notice that the tennis court conversion would be discussed and voted on at the November 9, 2021 board meeting.”

Based on these findings, the order was issued: “IT IS ORDERED that Petitioner Anthony T. Horn’s petition against Sun Lakes Homeowners Association #1, Inc., is dismissed.”

Study Guide: Horn v. Sun Lakes Homeowners Association #1, Inc.

This guide provides a detailed review of the administrative case between Petitioner Anthony T. Horn and Respondent Sun Lakes Homeowners Association #1, Inc. It includes a quiz to test comprehension, essay questions for deeper analysis, and a glossary of key terms found within the case documents.

Short-Answer Quiz

Answer the following questions in 2-3 sentences each, based solely on the provided source documents.

1. What was the specific statute and section that Petitioner Anthony T. Horn alleged the Sun Lakes HOA violated?

2. Describe the central disagreement over the agenda for the July 6, 2021, board meeting.

3. What was the Respondent’s primary legal defense, arguing that even if a violation occurred, it was later corrected?

4. Why was Mr. Horn’s initial petition dismissed in February 2022, leading to a request for a rehearing?

5. What ruling did the Administrative Law Judge make during the pre-hearing conference regarding Mr. Horn’s desire to introduce evidence of discrimination?

6. According to testimony, what methods did the Sun Lakes HOA use to provide notice of its board meetings to the membership?

7. What key difference existed between the agenda for the July 6, 2021 meeting and the agenda for the November 9, 2021 meeting?

8. During the August 1, 2022 rehearing, what was the fate of subpoenas that had been issued for the original, vacated hearing?

9. What was the Administrative Law Judge’s final conclusion in the August 22, 2022 decision regarding the alleged violation?

10. What did the Respondent’s counsel, Emily Mann, suggest was Mr. Horn’s true motivation for pursuing the petition?

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Answer Key

1. The petitioner, Anthony T. Horn, alleged that the Sun Lakes Homeowners Association #1, Inc. had violated Arizona Revised Statutes (A.R.S.) § 33-1804(F). This statute pertains to the policy of open meetings and the requirement that notices and agendas contain information reasonably necessary to inform members of matters to be discussed.

2. The central disagreement was whether the agenda item “Motion 3: Tennis Courts Upgrade & Repair” provided sufficient notice that the board would be discussing and voting on the conversion of a tennis court into four pickleball courts. Mr. Horn argued this description was misleading and withheld critical information, while the HOA contended it was adequate.

3. The Respondent’s primary defense was that any potential procedural error or lack of clarity in the July 6, 2021 meeting notice was “unequivocally cured.” They argued this cure was accomplished through a subsequent board meeting on November 9, 2021, which had a more explicit agenda item about the court conversion.

4. The initial petition was dismissed because the Petitioner, Anthony T. Horn, did not file a response to the Respondent’s Motion for Summary Judgment, Motion to Dismiss, and Motion for Summary Disposition. The Administrative Law Judge granted these motions, leading Mr. Horn to file for a rehearing.

5. The judge ruled that the issue of alleged discrimination was a separate legal matter from the alleged violation of A.R.S. § 33-1804(F). To include the discrimination claim, Mr. Horn would have to file a separate petition and pay an additional $500 filing fee.

6. General Manager Kelly Haynes testified that the HOA provided notice via e-blasts to members who signed up for them, posting on monitors in the clubhouse, inclusion in the monthly newsletter (“The Laker”), and posting on the association’s website.

7. The agenda for the July 6 meeting listed “Tennis Courts Upgrade & Repair.” In contrast, the agenda for the November 9 meeting provided a much more specific item: “Clarification of Motion 3 of the July 6, 2021 Board Meeting – Conversion of Court 1 to four Permanent Pickleball Courts.”

8. The Administrative Law Judge informed Mr. Horn that the subpoenas issued for the original hearing would not apply to the new rehearing. To compel witness testimony, Mr. Horn was required to request and serve new subpoenas, which would be a significant additional expense.

9. The ALJ concluded that the Sun Lakes HOA did not violate A.R.S. § 33-1804(F) with respect to the July 6, 2021 board meeting. The decision further stated that even if a violation had occurred, it was cured by the proper notice and subsequent vote at the November 9, 2021 board meeting.

10. The Respondent’s counsel stated that Mr. Horn’s petition was not about seeking justice or ensuring compliance with statutes, but was an act of “revenge against the association for the tennis court conversion.” She argued that since he could not stop the conversion, he filed a “meritless petition” to punish the association.

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Essay Questions

The following questions are designed for longer-form analysis. Formulate your answers based on a comprehensive review of the case details and legal arguments presented in the source documents.

1. Analyze the legal arguments presented by both the Petitioner and the Respondent regarding the interpretation of A.R.S. § 33-1804(F). Discuss how each party applied the statute’s requirement for “information that is reasonably necessary to inform the members” to the facts of the case.

2. Trace the procedural history of the case from the initial petition filing in 2021 to the final decision in August 2022. Identify at least three key procedural moments or rulings and explain their significance to the case’s progression and ultimate outcome.

3. Discuss the legal concept of a “cure” as it applied in this administrative hearing. Evaluate the strength of the Respondent’s argument that the November 9, 2021 meeting cured any potential defects from the July 6, 2021 meeting, and explain how the Petitioner attempted to rebut this defense.

4. The scope of the hearing was a contentious issue. Explain how the Administrative Law Judge limited the scope of the case and excluded certain topics, such as alleged discrimination and the soundness of the board’s business decision. Why are such limitations important in legal proceedings?

5. Based on the testimony and arguments presented in the August 1, 2022 rehearing, compare and contrast the remedies sought by the Petitioner with the relief available in the administrative hearing venue. What does this reveal about the limitations of this specific legal process for a homeowner’s grievances?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions in disputes involving government agencies. In this case, Judge Velva Moses-Thompson from the Office of Administrative Hearings (OAH).

A.R.S. (Arizona Revised Statutes)

The collection of laws passed by the Arizona state legislature. The specific statute at issue was A.R.S. § 33-1804, which governs open meetings for planned communities.

A legal concept where a party corrects a prior procedural error or violation. In this case, the Respondent argued that any deficiency in the July 6 meeting notice was corrected, or “cured,” by holding the November 9 meeting with a more explicit agenda.

Motion to Dismiss

A formal request made by a party to a court or tribunal to dismiss a case. The Respondent filed this motion, which was initially granted.

Motion for Summary Judgment

A request made by a party for a decision on the merits of a case before a full hearing, arguing that there are no genuine disputes as to material facts and that the party is entitled to judgment as a matter of law.

Motion for Summary Disposition

A request, similar to a motion for summary judgment, asking the tribunal to rule in a party’s favor without a full hearing.

Petitioner

The party who initiates a legal action or files a petition. In this matter, Anthony T. Horn was the Petitioner.

Preponderance of the Evidence

The standard of proof in most civil and administrative cases. It requires the party with the burden of proof to convince the trier of fact that their contention is more probably true than not.

Rehearing

A second hearing of a case, granted after an initial decision has been made. Mr. Horn was granted a rehearing after his petition was initially dismissed.

Respondent

The party against whom a petition is filed. In this matter, Sun Lakes Homeowners Association #1, Inc. was the Respondent.

Sua Sponte Order

An order made by a judge on their own initiative, without a request from either party. The order to continue the rehearing to August 1, 2022, was a sua sponte order due to the judge’s jury duty.

Subpoena

A legal order compelling a person to attend a hearing to give testimony. The Petitioner had to request new subpoenas for the rehearing as the original ones were no longer valid.

Your HOA Did What? 4 Shocking Lessons from One Homeowner’s Fight Over a Tennis Court

Introduction: The Notice on the Bulletin Board

Anyone who lives in a planned community is familiar with the official notices from their Homeowners Association (HOA). Often tacked onto a bulletin board or sent in a mass email, these communications can be models of bureaucratic brevity, full of formal language that is both vague and oddly specific. It’s easy to glance at an agenda item and assume you know what it means. But what happens when you’re wrong?

This was the situation faced by Anthony T. Horn, a homeowner in Sun Lakes, Arizona. In 2021, he filed a formal dispute against his HOA over a meeting notice he believed was deceptive, kicking off a year-long legal battle. His story provides a rare look “under the hood” of HOA procedures and power dynamics. Here are four surprising and impactful takeaways from his fight that every homeowner should understand.

1. A Notice for “Repairs” Can Mean a Total Transformation

The dispute began simply enough. The HOA posted a notice for a July 6, 2021 board meeting with a specific agenda item: “Motion 3: Tennis Courts Upgrade & Repair – Fiscal Impact $76,439 from the Reserve Fund.”

Mr. Horn, an active tennis player, attended the meeting expecting a discussion about much-needed repairs to the community’s dangerous and unplayable courts. Instead, he testified that he was “shocked” when the board announced that the “upgrade” included permanently converting one tennis court into four pickleball courts.

His core legal argument was that this notice failed to provide information “reasonably necessary to inform the members” of the true matter being decided, a requirement under Arizona statute A.R.S. § 33-1804(F). The final ruling from the Administrative Law Judge, however, was counter-intuitive.

Sun Lakes was not required to specify the method of upgrade: a conversion to pickleball courts.

This decision reveals a critical gap between a homeowner’s plain-language understanding and the law’s procedural interpretation. The ruling effectively places the burden on homeowners to be deeply skeptical of vague agenda items and to anticipate the broadest possible definition of terms like “upgrade.” As this case demonstrates, the law may not protect a resident’s more intuitive and narrow reading of a notice.

2. An HOA Can Get a “Mulligan” on Procedural Errors

After Mr. Horn filed his petition with the Arizona Department of Real Estate, the HOA board pursued a powerful defense strategy: a do-over. The board scheduled a second meeting for November 9, 2021.

The notice for this second meeting was far more specific. Its purpose was explicitly stated as a “Clarification of Motion 3 of the July 6, 2021 Board Meeting – Conversion of Court 1 to four Permanent Pickleball Courts.” At this meeting, the board held the vote again, and it passed again.

Legally, this is known as “curing” a potential violation. The HOA argued that even if their first notice was flawed (which they did not concede), this second, properly-noticed meeting made the original issue moot. The judge agreed.

Even if Sun Lakes had violated A.R.S. § 33-1804(F) with respect to the July 6, 2021, Sun Lakes cured the violation when it provided timely notice that the tennis court conversion would be discussed and voted on at the November 9, 2021 board meeting.

This reveals that “curing” is not just a simple correction; it is a powerful strategic tool for an HOA board. It creates a nearly risk-free path to test the limits of procedural compliance. A board can issue a vague notice, and only if a homeowner is willing to invest the time and money to file a formal complaint does the board need to “cure” the potential error with a more specific follow-up. This dynamic shifts the entire risk and cost of ensuring compliance onto the individual homeowner.

3. Fighting on Multiple Fronts Can Be Cost-Prohibitive

During the legal process, Mr. Horn wanted to introduce other arguments. He alleged discrimination against tennis players and claimed the board had ignored other viable locations for new pickleball courts.

The judge, however, repeatedly shut down these lines of argument. The hearing was strictly limited to the single issue identified in the original petition: the alleged violation of the open meeting notice statute. The reason for this limitation was procedural and financial. In the Arizona Department of Real Estate’s dispute system, each separate allegation requires its own petition and, crucially, a separate $500 filing fee.

This creates a significant financial barrier for the homeowner, as Mr. Horn explained during the hearing.

And I probably have five, six or seven of them inaccuracies and misstatements and what so would be $500 each.

This rule exposes a stark asymmetry of resources. The individual homeowner must pay out-of-pocket for each separate alleged violation, forcing them to pick only their single strongest—or most affordable—argument. The HOA, by contrast, defends itself using a legal fund paid for by the entire community, including the very homeowner who is filing the dispute.

4. You Can Win the Argument, Lose the Case, and Still Pay for It

The ultimate outcome presented a paradox, which Mr. Horn articulated in his closing argument. He laid out a sequence of events that created a frustrating “Catch-22” for the homeowner:

1. He identified what he believed was a clear procedural violation at the July 6th meeting.

2. He paid a $500 filing fee to formally dispute it.

3. His dispute directly caused the HOA to hold the second, more specific, and legally “cured” meeting on November 9th.

4. The HOA then used that very “cured” meeting as the legal basis to have his petition dismissed.

He saw it as a no-win situation where his own action to seek accountability provided the HOA with the tool to defeat his claim.

The only reason that November 9th meeting and that motion ever showed up there was because of my dispute. So, it’s kind of a catch 22. …I file a dispute and then they just change the language and then my dispute is nullified and I just lose my $500 and go away. That ain’t fair.

This outcome reveals the ultimate procedural paradox. It is a system where a homeowner’s successful action—forcing the HOA to correct its error—becomes the very instrument of their legal defeat. The legal system, in this context, prioritized the correction of a procedural flaw over the merits of the original grievance or the fairness of the outcome for the individual who forced the correction.

Conclusion: Knowledge is Power

The story of one homeowner’s fight over a tennis court reveals that the nuances of HOA law are complex and can often favor the established procedures of the board. From the broad interpretation of “reasonable notice” to the board’s ability to “cure” its own mistakes, the system contains mechanisms that can be challenging for an individual resident to overcome.

This case is not about taking sides on the issue of tennis versus pickleball. It is a valuable case study in the realities of community governance. It underscores the importance for homeowners to understand not just the rules, but the procedures that enforce them. This leads to a final, critical question for every member of an HOA to consider:

Given the systems in place, how can an individual homeowner ensure their voice is truly heard when the stakes feel this high?

Case Participants

Petitioner Side

  • Anthony T. Horn (petitioner)
    Homeowner and member of Sun Lakes HOA
  • Ralph Howlen (witness / homeowner)
    Spelled Howland in some transcript passages.
  • Felicia Kuba (potential witness / homeowner)
    Potential witness regarding court injury/conditions.
  • Ed Campy (former tennis club president)
    Notified Horn of the November meeting.
  • Robert Miller (homeowner)
    Former tennis club member who asked a question at the July 6 meeting.

Respondent Side

  • Emily H. Mann (HOA attorney)
    Phillips, Maceyko and Battock, PLLC
  • Chris Johnston (HOA representative / Account Manager)
    USI Insurance Services LLC
    Senior Account Manager; listed as point of contact for Respondent
  • Kelly Haynes (general manager / witness)
    Sun Lakes Homeowners Association #1, Inc.
  • Janice Cornoyer (HOA president / witness)
    Sun Lakes Homeowners Association #1, Inc.
  • Jimmy Burns (facilities maintenance manager / witness)
    Sun Lakes Homeowners Association #1, Inc.
  • Emily Jones (HOA employee)
    Sun Lakes Homeowners Association #1, Inc.
    Employee who works with computers in the HOA office.
  • Steve Howell (board member)
    Sun Lakes Homeowners Association #1, Inc.
    Read in the motion at the July 6 meeting.

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    OAH
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
  • Miranda Alvarez (Legal Secretary)
    OAH/ADRE
    Transmitted documents.
  • c. serrano (Transmitting Agent)
    OAH/ADRE
    Transmitted documents.
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Listed as email recipient/attn.
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Listed as email recipient/attn.
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Listed as email recipient/attn.
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Listed as email recipient/attn.
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Listed as email recipient/attn.

Other Participants

  • Dennis Anderson (observer)
    Joined hearing via Google Meet.
  • Mark Gotman (observer)
    Joined hearing via Google Meet.

Sam & Pipper O’ Shaughnessy Stangl v. Sabino Vista Townhouse

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Case Summary

Case ID22F-H2221009-REL-RHG
AgencyADRE
TribunalOAH
Decision Date2022-04-25
Administrative Law JudgeVelva Moses-Thompson
Outcomefull
Filing Fees Refunded$500.00
Civil Penalties$0.00

Parties & Counsel

PetitionerSam & Pipper O’ Shaughnessy StanglCounsel—
RespondentSabino Vista Townhouse AssociationCounselNathan Tennyson

Alleged Violations

Article VI of the CC&Rs

Outcome Summary

The Administrative Law Judge deemed Petitioners the prevailing party. Respondent HOA violated Article VI of the CC&Rs by failing to maintain and remove rubbish from the natural desert area within the Common Area up to the exterior building lines, as the Board’s determination not to maintain the area lacked proper authority without a CC&R amendment. The Respondent was ordered to comply with the CC&Rs and refund the Petitioners’ filing fee.

Key Issues & Findings

HOA maintenance obligations for common area up to exterior building lines

Petitioners alleged the HOA failed to maintain and otherwise manage all property up to the exterior building lines and patio enclosures, specifically a natural desert area within the Common Area. The ALJ found that the CC&Rs require the Association to maintain and remove all rubbish within its property up to the exterior building lines, and the Board lacked the authority to refuse maintenance of the natural desert area without amending the CC&Rs.

Orders: Respondent is ordered to comply with the requirements of Article VI of the CC&Rs going forward and must pay Petitioners their filing fee of $500.00 within thirty (30) days.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:
  • Article VI of the CC&Rs
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Analytics Highlights

Topics: HOA Maintenance, CC&R Interpretation, Common Area Maintenance, Filing Fee Refund, Prevailing Party
Additional Citations:
  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Video Overview

Audio Overview

Decision Documents

22F-H2221009-REL Decision – 959583.pdf

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22F-H2221009-REL Decision – 964651.pdf

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22F-H2221009-REL Decision – 964655.pdf

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22F-H2221009-REL Decision – 927714.pdf

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22F-H2221009-REL Decision – 927747.pdf

Uploaded 2026-04-24T11:39:19 (37.5 KB)

Stangl v. Sabino Vista Townhouse Association: A Dispute Over Common Area Maintenance

Executive Summary

This briefing document synthesizes the key facts, arguments, and legal decisions in the administrative case of Sam & Pipper O’ Shaughnessy Stangl versus the Sabino Vista Townhouse Association. The central conflict revolves around the Association’s legal obligation, as defined by its Covenants, Conditions, and Restrictions (CC&Rs), to maintain a common area behind the Petitioners’ property.

The Petitioners alleged that the Association violated Article 6 of its CC&Rs by failing to maintain this area for over two decades, resulting in the accumulation of rubbish and the creation of a habitat for pests. The Association countered that the area in question was designated “natural desert” to serve as a buffer, and that maintaining it was not required and would be cost-prohibitive.

An initial hearing in November 2021 resulted in a decision in favor of the Petitioners. The Association was granted a rehearing, which took place in April 2022. Despite new arguments from the Association regarding budget constraints, historical precedent, and alleged interference by the Petitioners, the Administrative Law Judge (ALJ) upheld the original decision.

The final ruling on April 25, 2022, found that the language of CC&R Article 6 is unambiguous and requires the Association to maintain “all property up to the exterior building lines.” The ALJ concluded that the Board of Directors does not have the authority to unilaterally designate a common area as “unmaintained” without formally amending the CC&Rs. Consequently, the Association was ordered to comply with Article 6 and reimburse the Petitioners’ filing fee.

Case Overview

Case Name

Sam & Pipper O’ Shaughnessy Stangl, Petitioners, vs. Sabino Vista Townhouse Association, Respondent.

Case Numbers

22F-H2221009-REL (Initial Hearing)
22F-H2221009-REL-RHG (Rehearing)

Adjudicating Body

Arizona Office of Administrative Hearings

Administrative Law Judge

Velva Moses-Thompson

Key Dates

Petition Filed: August 6, 2021
Initial Hearing: November 8, 2021
Initial Decision: November 29, 2021
Rehearing: April 4, 2022
Final Decision: April 25, 2022

The Central Allegation: Violation of CC&R Article 6

The dispute is founded on the interpretation of Article 6 of the Sabino Vista Townhouse Association’s CC&Rs concerning “Common Maintenance.”

Key Provisions of Article 6:

• Maintenance Obligation: “The Association, or its duly authorized representative, shall maintain and otherwise manage all property up to the exterior building lines and patio enclosures including but not limited to the landscaping… roofs, common elements, decorative walls, drainage… and be responsible for the rubbish removal of all areas within the common properties.”

• Standard of Care: “The Board of Directors of the Association shall use a reasonably high standard of care in providing for the repair, management and maintenance of said property, so that said townhouse project will reflect high pride of ownership.”

Petitioners’ Core Claim: Filed on August 6, 2021, the petition alleged that the Association violated Article 6 by failing to maintain the property behind their townhome unit. They asserted this neglect had persisted for the approximately 24 years they had lived there, leading to overgrowth and pest infestations.

The First Hearing and Decision (November 2021)

Summary of Arguments

• Petitioners (Sam & Pipper O’ Shaughnessy Stangl):

◦ Alleged observing only 12 hours of landscaping work in their immediate back area over 24 years.

◦ Claimed the accumulated rubbish and overgrowth served as a habitat for pests, specifically mentioning “a pack rat for rattlesnakes.”

◦ Submitted a photograph of a rattlesnake skin found in their backyard as evidence.

• Respondent (Sabino Vista Townhouse Association):

◦ Testimony was provided by Charles Taylor Ostermeyer, secretary of the Board of Directors.

◦ Argued the area in question is a “natural desert area and underbrush” that begins 30 to 40 feet behind the homes.

◦ Initially claimed the Board had adopted a rule limiting maintenance to just 4 feet behind residences, citing Board meeting minutes. However, when pressed by the ALJ, Ostermeyer conceded that believing a formal rule was adopted “would be conjecture on my part.”

◦ Asserted it would be too costly to clear the entire region.

◦ Contended that the decision not to maintain the open desert area was a valid exercise of the “business judgment rule” applicable to non-profit organizations.

November 29, 2021 Decision

The ALJ, Velva Moses-Thompson, ruled in favor of the Petitioners.

• Finding: The preponderance of the evidence showed the Respondent failed to maintain the property as required by the unambiguous language of Article 6.

• Reasoning: The Respondent provided “no evidence of an Amendment to Article VI” and “no evidence of a rule properly adopted by the Board that would limit the common area to be maintained.”

• Order: The Petitioners were deemed the prevailing party, and the Association was ordered to reimburse their $500 filing fee and comply with Article 6 going forward.

The Rehearing and Final Decision (April 2022)

The Association’s request for a rehearing was granted, with the new hearing held on April 4, 2022. The Association was represented by Nathan Tennyson, Esq., and presented testimony from John Polasi, a Board member and Chairman of the Landscape Committee.

Rehearing Testimony and Arguments

Petitioner Arguments (Sam O’ Shaughnessy Stangl)

Respondent Arguments (John Polasi, HOA Board)

Core Issue is Deflection: Argued the Association’s narrative was a “deflection from the main issue.” Stated the HOA focused on irrelevant topics to circumvent the court’s correct original ruling.

Area is a “Natural Buffer”: The unmaintained area has existed since 1974 and serves as a natural buffer from Tanque Verde Creek, keeping wildlife out and preventing hikers/bikers from wandering into the neighborhood.

Tree Trimming Incident: Claimed the HOA falsely accused him of “singlehandedly” stopping all tree trimming. Clarified a December 2021 interaction with a contractor (Leon’s Tree Service) lasted only 30 seconds, where he refused permission to cut three shade branches in his private front courtyard.

Petitioner Hindrance: Alleged the Petitioners actively hindered tree trimming in December 2021 by refusing the contractor entry into their courtyard and blocking their driveway with an SUV to prevent the trimming of a low-hanging branch.

Pest Infestations: Maintained that pests are a significant problem, citing a recent rattlesnake sighting on his birthday (March 21) and his personal removal of “252 packrats in the last three years.”

Pest Control is Managed: Stated the HOA contracts “Mr. Packrat” to inspect the entire property quarterly. Polasi testified he had been chairman for a year and had “never heard of a single pack rider or rattlesnake anywhere.”

Misuse of Common Area: Dismissed accusations of misusing the common area as “pure deflection.” He stated his use (grilling, sitting outdoors) was adjudicated in court 18 years prior and found to be in compliance with CC&Rs.

Petitioner Misuse of Common Area: Accused the Petitioners of violating CC&Rs by placing personal items (barbecue, smoker, tables, chairs) in the common area and cutting a hole in their patio wall for water and electric lines.

Developer’s Intent: Cited a statement from Dale Chastine, the original developer, asserting the CC&Rs were written to “strictly forbid any unfettered wild growth” and require all common areas to be maintained in the same manner.

Board Authority and Historical Precedent: Cited 2020 Board Minutes that formally designated the area “35 ft to the south of southern homeowner rear wall” as “unmaintained natural desert landscape.” Referenced 1999 minutes indicating a 4-foot maintenance rule was previously in place.

New Issues: Attempted to introduce new evidence regarding a “complete drainage channel that… is now buried under debris and soil,” but the ALJ did not admit it as it was a new allegation not in the original petition.

Budgetary Constraints: Argued that maintaining the entire two-to-four-acre area would be excessively expensive. He noted the HOA had recently spent $15,000 on front-area tree trimming and $10,000 on tree repairs, and had other costs like a new pool pump.

April 25, 2022 Final Decision

The ALJ again ruled in favor of the Petitioners, affirming the initial decision.

• Core Conclusion: “Although the Board determined that it would not maintain the natural desert, the Board does not have authority under its CC&Rs to refuse to maintain any of the area of its property up to the exterior building lines.”

• Legal Reasoning: The CC&Rs are unambiguous and require the Association to maintain and remove rubbish from all property within its boundaries, including the area designated as “natural desert.”

• Path Forward for HOA: The ALJ explicitly stated, “If the Association does not want to maintain any area within its property up to the exterior building lines, the Association should amend its CC&Rs.”

• Final Order: The order from the November 29, 2021 decision was reiterated: Petitioners were deemed the prevailing party, the Respondent was ordered to pay the $500 filing fee, and the Respondent was directed to comply with Article VI of the CC&Rs.

Stangl v. Sabino Vista Townhouse Association: A Case Study Guide

This study guide provides a comprehensive review of the administrative case between homeowners Sam & Pipper O’ Shaughnessy Stangl and the Sabino Vista Townhouse Association. It includes a short-answer quiz with a corresponding answer key, a set of essay questions for deeper analysis, and a glossary of key terms found within the case documents.

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Short Answer Quiz

Instructions: Answer the following questions in 2-3 sentences, using only information provided in the source documents.

1. What was the central violation alleged by the Petitioners in their August 6, 2021, petition?

2. According to Article 6 of the CC&Rs, what is the Sabino Vista Townhouse Association’s responsibility regarding property maintenance?

3. In the first hearing on November 8, 2021, what was the Respondent’s primary argument for not maintaining the area behind the Petitioners’ home?

4. What was the outcome of the first Administrative Law Judge Decision issued on November 29, 2021?

5. Who testified for the Respondent at the April 4, 2022, rehearing, and what were his roles within the Association?

6. What two historical documents did the Respondent present at the rehearing to support its maintenance policy for the area in question?

7. Describe the Respondent’s accusation against the Petitioners regarding the tree trimming service in December 2021.

8. What strategic reasons did the Respondent’s witness, John Polasi, give for leaving the desert area unmaintained?

9. In the final decision of April 25, 2022, why did the Administrative Law Judge rule against the Association despite its evidence of a board-approved maintenance plan?

10. What specific orders were issued to the Respondent in the final court decision?

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Answer Key

1. The Petitioners alleged that the Sabino Vista Townhouse Association violated Article 6 of its Covenants, Conditions, and Restrictions (CC&Rs). Specifically, they claimed the Association failed to maintain and otherwise manage all property up to the exterior lines and patio enclosures, focusing on the unkempt two-acre area behind their townhome.

2. Article 6 requires the Association to “maintain and otherwise manage all property up to the exterior building lines and patio enclosures.” This includes landscaping, common elements, and rubbish removal, and mandates that the Board of Directors use a “reasonably high standard of care” so the project reflects a high pride of ownership.

3. In the first hearing, the Respondent argued that it had applied the “business judgment rule” applicable to non-profit organizations. The Association contended it would be too costly to clear out the entire region, which it described as an open desert area with many trees and weeds.

4. The Administrative Law Judge (ALJ) found the Petitioners to be the prevailing party. The ALJ ordered the Respondent to comply with Article 6 of the CC&Rs going forward and to pay the Petitioners their filing fee of $500.00.

5. John Polasi testified for the Respondent at the rehearing. He was identified as a member of the Respondent’s Board of Directors and the Chairman of the Landscaping Committee.

6. The Respondent presented minutes from a Board Meeting in February 1999, which stated that only 4 feet behind residences were maintained, with the remainder left natural. They also presented minutes from a 2020 Board Meeting that revised this policy, designating an area 35 feet from the southern homeowner walls as the maintenance boundary.

7. The Respondent alleged that the Petitioners interfered with and prevented a tree trimming project conducted by Leon’s Tree Service. The witness claimed the Petitioners refused entry into their front patio to trim overhanging limbs and moved a vehicle into their driveway to block the work.

8. John Polasi testified that the unmaintained desert area serves as a “natural buffer.” He stated it keeps animals from the adjacent Tanque Verde Creek area from coming onto homeowner property and also prevents bikers and hikers from wandering into the neighborhood.

9. The ALJ ruled that although the Board had determined it would not maintain the natural desert area, the Board does not have the authority under its CC&Rs to refuse maintenance. The judge concluded that the CC&Rs require the Association to maintain all property up to the exterior lines and that if the Association wishes to change this, it must formally amend its CC&Rs.

10. The final order deemed the Petitioners the prevailing party and directed the Respondent to pay the Petitioners’ $500.00 filing fee within thirty days. It further ordered the Respondent to comply with the requirements of Article VI of the CC&Rs going forward.

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Essay Questions

Instructions: The following questions are designed for essay-length responses to encourage a deeper analysis of the case. Answers are not provided.

1. Analyze the legal reasoning of the Administrative Law Judge in both the initial and final decisions. Why was Article 6 of the CC&Rs consistently interpreted as unambiguous, and how did this interpretation override the Respondent’s “business judgment” defense and subsequent board resolutions?

2. Compare and contrast the evidence and arguments presented by the Respondent in the first hearing versus the rehearing. How did the Association’s defense strategy evolve, and what new evidence did it introduce in the second hearing?

3. Discuss the concept of “preponderance of the evidence” as defined in the case documents. Using specific examples from the testimony and exhibits, explain how the Petitioners met this burden of proof and why the Respondent’s affirmative defenses failed to meet the same standard in both hearings.

4. Examine the tension between a homeowners’ association’s governing documents (like CC&Rs) and the operational decisions made by its Board of Directors. How does this case illustrate the limits of a Board’s authority to interpret or modify its responsibilities without formally amending the core documents?

5. Evaluate the various pieces of evidence introduced during the rehearing, such as the Board Minutes from 1999 and 2020, the letter from Leon’s Tree Service, and the attempted introduction of the developer’s affidavit. What role did each piece of evidence play in shaping the arguments, and why was some evidence given more weight or deemed inadmissible by the judge?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings, makes findings of fact, and issues decisions and orders. In this case, the ALJ was Velva Moses-Thompson.

Affidavit

A written statement confirmed by oath or affirmation, for use as evidence in court. An affidavit from the original developer, Dale Chastain, was presented but not admitted into evidence.

Affirmative Defense

A defense in which the defendant introduces evidence that, if found to be credible, will negate liability, even if it is proven that the defendant committed the alleged acts.

Arizona Dept. of Real Estate

The state agency authorized by statute to receive and decide Petitions for Hearings from members of homeowners’ associations in Arizona.

Business Judgment Rule

A legal principle that grants directors of a corporation (or non-profit association) immunity from liability for losses incurred in corporate transactions if the directors acted in good faith. This was used as a defense by the Respondent in the first hearing.

Covenants, Conditions, and Restrictions. These are the governing legal documents that set up the rules for a planned community or subdivision. The interpretation of Article 6 of the CC&Rs was the central issue of the case.

Common Area

Property in a planned community that is owned by the homeowners’ association and intended for the use and enjoyment of all members. The dispute centered on the maintenance of a common area behind the Petitioners’ home.

Conjecture

An opinion or conclusion formed on the basis of incomplete information. A witness for the Respondent admitted his belief about a maintenance rule was “conjecture.”

Evidentiary Hearing

A formal proceeding where parties present evidence and testimony before a judge to resolve a disputed issue.

Homeowners’ Association (HOA)

An organization in a subdivision, planned community, or condominium building that makes and enforces rules for the properties and its residents. In this case, the Sabino Vista Townhouse Association.

Office of Administrative Hearings

An independent state agency in Arizona where evidentiary hearings are conducted by Administrative Law Judges.

Petitioners

The party that files a petition to initiate a legal proceeding. In this case, Sam & Pipper O’ Shaughnessy Stangl.

Preponderance of the Evidence

The standard of proof in most civil cases, defined as “such proof as convinces the trier of fact that the contention is more probably true than not.” The Petitioners had the burden of proving their case by this standard.

Rehearing

A second hearing of a case, granted upon request, to reconsider the original decision. The April 4, 2022, hearing was a rehearing, treated as a “complete and new hearing.”

Respondent

The party against whom a petition is filed. In this case, the Sabino Vista Townhouse Association.

Restrictive Covenant

A provision in a deed or other legal document that limits the use of real property. The court noted that unambiguous restrictive covenants are enforced to give effect to the intent of the parties.

Riparian Area

An area of land adjacent to a river or stream. The Respondent’s witness described the community as being in a riparian area next to Tanque Verde Creek.

He Sued His HOA Over Landscaping and Won. They Demanded a Do-Over. He Won Again. Here Are the Lessons.

Introduction: The David vs. Goliath Tale of a Homeowner and His HOA

For many homeowners, dealing with a Homeowners Association (HOA) can feel like a constant struggle. Disputes over rules, maintenance, and responsibilities are common frustrations. But what happens when a homeowner believes their HOA is fundamentally failing to uphold its end of the bargain?

This is the story of Sam O’ Shaughnessy Stangl, a homeowner who took his HOA to court over its failure to maintain a common area behind his home. The outcome was surprising enough: he won. But when the HOA was granted a complete “do-over” hearing to re-argue the case from scratch, he won a second time.

This case, Stangl vs. Sabino Vista Townhouse Association, offers a powerful case study in the hierarchy of governing documents and the legal principle of plain language in contract law. Here are the surprising and powerful lessons from the repeated legal victory that every homeowner should know.

1. An HOA Board Vote Can’t Override Its Own Founding Documents

The HOA’s core defense was that its Board of Directors had made a decision to leave the area behind the homes as an “unmaintained natural desert.” This argument, however, proved legally insufficient across two separate hearings.

In the first hearing, board secretary Charles Taylor Ostermeyer testified that the board had decided to limit maintenance. However, when pressed by the judge, he admitted that claiming this decision was a formal “rule” would be “conjecture on my part.” For the rehearing, the association presented board member John Polaski, who formalized the argument, claiming the unmaintained area served as a “natural buffer.” To support this, they presented minutes from a 2020 board meeting, arguing that the board’s decision recorded in those minutes effectively created a new policy for that common area.

In both instances, the Administrative Law Judge delivered a decisive counter-ruling. The judge found that the association’s primary governing documents—the Covenants, Conditions, and Restrictions (CC&Rs)—were the superior legal authority. A simple board vote recorded in meeting minutes could not nullify the binding requirements of the CC&Rs. The judge’s final order from the rehearing was unequivocal:

Although the Board determined that it would not maintain the natural desert, the Board does not have authority under its CC&Rs to refuse to maintain any of the area of its property up to the exterior building lines. … If the Association does not want to maintain any area within its property up to the exterior building lines, the Association should amend its CC&Rs.

This is a critical lesson for every homeowner. The CC&Rs function as a legally binding contract between the association and its members. A simple board resolution, a new rule, or a long-standing “tradition” cannot legally contradict the foundational covenants.

2. When the Contract is Clear, “All” Simply Means All

The entire case ultimately hinged on a single sentence in Article VI of the Sabino Vista Townhouse Association CC&Rs. This piece of text was so clear and powerful that the judge cited it as the deciding factor in both the original hearing and the rehearing. The language stated:

“The Association, or its duly authorized representative, shall maintain and otherwise manage all property up to the exterior building lines and patio enclosures including but not limited to the landscaping…”

The HOA attempted to argue around this plain language. Its representatives claimed that maintaining the entire area was too costly, that it had been unmaintained since the community was built in 1974, and that it was a “riparian area” (land adjacent to a river or stream) that should be left wild.

In both hearings, the judge rejected these arguments. The word “all” was not open to interpretation. The language of the CC&Rs was unambiguous and therefore had to be enforced as it was written. This illustrates a fundamental legal principle: when contract language is clear, arguments about convenience, cost, or past practice often fail when pitted against the plain text of a governing legal document.

3. Facts are Stubborn, Even in a “Complete New Hearing”

In a highly unusual procedural twist, after losing the first hearing in November 2021, the HOA was granted a “re-hearing” in April 2022. This was not an appeal, which reviews an original decision for errors, but a complete strategic reset. The judge explained its legal significance:

“And this is a re-hearing. So it is a complete and new hearing. … as if the first hearing didn’t happen.”

The HOA used this second chance to launch a new strategy. While the first hearing’s defense centered on cost and a vague, unwritten policy, the second hearing featured a new witness and a new, two-pronged approach: formalizing the “natural buffer” argument and adding an ad hominem strategy that attempted to portray Mr. Stangl as an uncooperative resident who had personally interfered with tree trimming.

But while the HOA’s tactics shifted, the central fact of the case could not be changed. The text of the CC&Rs was the same in April 2022 as it was in November 2021. The final outcome was identical to the first. The judge once again ruled in favor of the homeowner, ordering the HOA to comply with its own CC&Rs and to reimburse Mr. Stangl’s $500 filing fee.

This demonstrates a key legal reality: while procedural tactics can create new opportunities for argument, they cannot alter the foundational text of a contract. The HOA’s strategy shifted, but the CC&Rs—the central fact of the case—remained immutable.

Conclusion: A Final Takeaway for Every Homeowner

The case of Stangl vs. Sabino Vista Townhouse Association offers three profound takeaways for homeowners: the CC&Rs are supreme over board decisions, the plain language of those documents is incredibly powerful, and a fact-based argument is resilient. It serves as a potent reminder that an association’s governing documents are not just suggestions—they are enforceable contracts.

The next time you question an HOA policy, will you stop at their latest newsletter, or will you go back to the source?

Case Participants

Petitioner Side

  • Sam O’ Shaughnessy Stangl (petitioner)
  • Pipper O’ Shaughnessy Stangl (petitioner)
  • Dale Chastine (developer/witness)
    Original developer who provided an affidavit supporting petitioners
  • Lisa Chastine (witness)
    Signed father’s affidavit as a witness

Respondent Side

  • Blake R. Johnson (HOA attorney)
    The Brown Law Group, PLLC
  • Nathan Tennyson (HOA attorney)
    The Brown Law Group, PLLC
    Appeared for rehearing; also referred to as Nathan Henderson in transcript
  • Charles Taylor Ostermeyer (board member)
    Sabino Vista Townhouse Association
    Secretary of Board; testified at original hearing
  • John Polasi (board member)
    Sabino Vista Townhouse Association
    Chairman of the Landscaping Committee; testified at rehearing
  • Leon (contractor)
    Leon’s Tree Service
    Tree trimmer hired by HOA; provided a signed statement/testimony

Neutral Parties

  • Velva Moses-Thompson (ALJ)
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Email recipient
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Email recipient
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Email recipient
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Email recipient
  • c. serrano (clerk)
    Transmitted order
  • Miranda Alvarez (clerk)
    Transmitted order

Other Participants

  • Barbara Barski (property manager)
    Former manager of the association

Nicole Armsby (NICDON 10663 LLC) v. Desert Mountain Master

Posted on by

Case Summary

Case ID21F-H2121055-REL-RHG
AgencyADRE
TribunalOAH
Decision Date2022-01-31
Administrative Law JudgeVelva Moses-Thompson
Outcomeloss
Filing Fees Refunded$500.00
Civil Penalties$0.00

Parties & Counsel

PetitionerNicole Armsby (NICDON 10663 LLC)Counsel—
RespondentDesert Mountain Master AssociationCounselMark K. Sahl, Esq.

Alleged Violations

No violations listed

Outcome Summary

The Administrative Law Judge vacated the hearing from the docket because the Petitioner voluntarily withdrew.

Why this result: The Petitioner voluntarily withdrew the request for hearing, leading to the matter being vacated from the docket.

Key Issues & Findings

statute

The party requesting the hearing voluntarily withdrew the matter.

Orders: The matter was vacated from the docket of the Office of Administrative Hearings.

Filing fee: $500.00, Fee refunded: Yes

Disposition: respondent_win

Analytics Highlights

Topics: voluntary withdrawal, vacated hearing, continuance granted

Video Overview

Audio Overview

Decision Documents

21F-H2121055-REL Decision – 934279.pdf

Uploaded 2026-04-24T11:36:13 (49.2 KB)

21F-H2121055-REL Decision – 934302.pdf

Uploaded 2026-04-24T11:36:18 (8.1 KB)

21F-H2121055-REL Decision – 942918.pdf

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21F-H2121055-REL Decision – 909217.pdf

Uploaded 2026-04-24T11:36:25 (113.1 KB)

This summary focuses on the procedural history and final administrative disposition of the matter, Case No. 21F-H2121055-REL-RHG, before the Office of Administrative Hearings (OAH).

Key Facts and Parties

The case involved Petitioner Nicole Armsby (NICDON 10663 LLC) and Respondent Desert Mountain Master Association. The proceedings were conducted under the authority of the OAH, with Administrative Law Judge Velva Moses-Thompson presiding over the entries.

Hearing Proceedings and Main Issues

The primary procedural actions documented are two Minute Entries concerning the scheduling and eventual removal of the case from the docket.

  1. Granting Continuance (December 22, 2021): The OAH issued a minute entry granting a continuance of the scheduled hearing, noting that good cause appearing. The matter was reset for February 23, 2022, at 9:00 AM. The hearing was scheduled to be conducted either by video conferencing or telephone participation through Google Meet, though parties retained the option to appear in person at the OAH in Phoenix if they advised the office seven days prior. In-person attendance required adherence to social distancing and masking guidelines.
  1. Vacating Hearing (January 31, 2022): Before the continued hearing date, a subsequent Minute Entry was filed vacating the hearing from the OAH docket.

Outcome and Legal Points

The most significant legal outcome was the termination of the proceedings at the administrative level. The matter was vacated because “The party requesting the hearing has voluntarily withdrawn”. This voluntary withdrawal by the petitioner rendered the scheduled hearing unnecessary and led to the closure of the case on the OAH docket.

Questions

Question

Can my HOA refuse to provide records if I am currently suing them?

Short Answer

Yes, the HOA may withhold records if they relate to pending litigation between the homeowner and the association.

Detailed Answer

Under Arizona law, an association is permitted to withhold books and records if the disclosure relates to pending litigation. In this decision, the ALJ ruled that the HOA could withhold documents regarding a keyless entry system because it related to an ongoing lawsuit regarding short-term rental restrictions (since the entry system controlled renter access).

Alj Quote

Therefore, the Administrative Law Judge concludes that Respondent was permitted to withhold documentation and communication related to the keyless entry program from Petitioner, due to pending litigation regarding the CC&Rs amendment that prohibits short-term rentals.

Legal Basis

A.R.S. § 33-1805(B)(2)

Topic Tags

  • records request
  • pending litigation
  • withholding records

Question

Who has to prove that the HOA violated the law during a hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

The homeowner filing the petition is responsible for proving that the HOA violated the statutes or governing documents. They must prove this by a ‘preponderance of the evidence’.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated Section 5.10 of the Association’s CC&Rs, Article III, Section 1 of the Association’s Bylaws, and A.R.S. § 33-1805 by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2)

Topic Tags

  • burden of proof
  • legal standards
  • procedure

Question

How much evidence do I need to win a case against my HOA?

Short Answer

You need a ‘preponderance of the evidence,’ meaning your claim is more likely true than not.

Detailed Answer

The standard of proof in these administrative hearings is ‘preponderance of the evidence.’ This is defined as evidence that makes a contention ‘more probably true than not’ or carries the greater weight of convincing force.

Alj Quote

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

Legal Basis

Arizona Law of Evidence

Topic Tags

  • evidence
  • legal standards

Question

How long does the HOA have to respond to my request to inspect records?

Short Answer

The HOA has 10 business days to fulfill a request.

Detailed Answer

Arizona statute mandates that an association must make financial and other records reasonably available for examination within ten business days of a request.

Alj Quote

The association shall have ten business days to fulfill a request for examination.

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • records request
  • timelines
  • HOA obligations

Question

Can the HOA charge me for copies of the records I request?

Short Answer

Yes, they can charge a fee for copies.

Detailed Answer

While the association cannot charge a member for making material available for review, they may charge a fee for providing actual copies of the records. The statute caps this fee.

Alj Quote

An association may charge a fee for making copies of not more than fifteen cents per page.

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • records request
  • fees
  • HOA obligations

Question

What specific types of information can an HOA legally keep private?

Short Answer

The HOA can withhold privileged attorney communications, pending litigation records, closed meeting minutes, and personal or employee information.

Detailed Answer

The law lists specific categories of records that do not have to be disclosed. These include attorney-client privilege, pending litigation, minutes from executive sessions, personal/health/financial records of members or employees, and records related to employee job performance or complaints.

Alj Quote

Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to any of the following: 1. Privileged communication… 2. Pending litigation… 3. Meeting minutes… of a board meeting that is not required to be open… 4. Personal, health or financial records… 5. Records relating to the job performance…

Legal Basis

A.R.S. § 33-1805(B)

Topic Tags

  • privacy
  • exemptions
  • records request

Question

Does a records request have to be directly about the lawsuit to be denied?

Short Answer

Not necessarily directly, but it must ‘relate to’ the pending litigation.

Detailed Answer

In this case, the homeowner requested records about a security entry system. Even though the lawsuit was about short-term rentals, the ALJ found the records could be withheld because the entry system controlled renter access, making the records related to the litigation.

Alj Quote

The evidence presented at hearing shows that the keyless entry program controls renters’ access to Desert Mountain. Therefore, the Administrative Law Judge concludes that Respondent was permitted to withhold documentation and communication related to the keyless entry program… due to pending litigation regarding the CC&Rs amendment that prohibits short-term rentals.

Legal Basis

A.R.S. § 33-1805(B)(2)

Topic Tags

  • pending litigation
  • records request
  • scope of discovery

Case

Docket No
21F-H2121055-REL
Case Title
Nicole Armsby (NICDON 10663 LLC) vs. Desert Mountain Master Association
Decision Date
2021-09-07
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Questions

Question

Can my HOA refuse to provide records if I am currently suing them?

Short Answer

Yes, the HOA may withhold records if they relate to pending litigation between the homeowner and the association.

Detailed Answer

Under Arizona law, an association is permitted to withhold books and records if the disclosure relates to pending litigation. In this decision, the ALJ ruled that the HOA could withhold documents regarding a keyless entry system because it related to an ongoing lawsuit regarding short-term rental restrictions (since the entry system controlled renter access).

Alj Quote

Therefore, the Administrative Law Judge concludes that Respondent was permitted to withhold documentation and communication related to the keyless entry program from Petitioner, due to pending litigation regarding the CC&Rs amendment that prohibits short-term rentals.

Legal Basis

A.R.S. § 33-1805(B)(2)

Topic Tags

  • records request
  • pending litigation
  • withholding records

Question

Who has to prove that the HOA violated the law during a hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

The homeowner filing the petition is responsible for proving that the HOA violated the statutes or governing documents. They must prove this by a ‘preponderance of the evidence’.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated Section 5.10 of the Association’s CC&Rs, Article III, Section 1 of the Association’s Bylaws, and A.R.S. § 33-1805 by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2)

Topic Tags

  • burden of proof
  • legal standards
  • procedure

Question

How much evidence do I need to win a case against my HOA?

Short Answer

You need a ‘preponderance of the evidence,’ meaning your claim is more likely true than not.

Detailed Answer

The standard of proof in these administrative hearings is ‘preponderance of the evidence.’ This is defined as evidence that makes a contention ‘more probably true than not’ or carries the greater weight of convincing force.

Alj Quote

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

Legal Basis

Arizona Law of Evidence

Topic Tags

  • evidence
  • legal standards

Question

How long does the HOA have to respond to my request to inspect records?

Short Answer

The HOA has 10 business days to fulfill a request.

Detailed Answer

Arizona statute mandates that an association must make financial and other records reasonably available for examination within ten business days of a request.

Alj Quote

The association shall have ten business days to fulfill a request for examination.

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • records request
  • timelines
  • HOA obligations

Question

Can the HOA charge me for copies of the records I request?

Short Answer

Yes, they can charge a fee for copies.

Detailed Answer

While the association cannot charge a member for making material available for review, they may charge a fee for providing actual copies of the records. The statute caps this fee.

Alj Quote

An association may charge a fee for making copies of not more than fifteen cents per page.

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • records request
  • fees
  • HOA obligations

Question

What specific types of information can an HOA legally keep private?

Short Answer

The HOA can withhold privileged attorney communications, pending litigation records, closed meeting minutes, and personal or employee information.

Detailed Answer

The law lists specific categories of records that do not have to be disclosed. These include attorney-client privilege, pending litigation, minutes from executive sessions, personal/health/financial records of members or employees, and records related to employee job performance or complaints.

Alj Quote

Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to any of the following: 1. Privileged communication… 2. Pending litigation… 3. Meeting minutes… of a board meeting that is not required to be open… 4. Personal, health or financial records… 5. Records relating to the job performance…

Legal Basis

A.R.S. § 33-1805(B)

Topic Tags

  • privacy
  • exemptions
  • records request

Question

Does a records request have to be directly about the lawsuit to be denied?

Short Answer

Not necessarily directly, but it must ‘relate to’ the pending litigation.

Detailed Answer

In this case, the homeowner requested records about a security entry system. Even though the lawsuit was about short-term rentals, the ALJ found the records could be withheld because the entry system controlled renter access, making the records related to the litigation.

Alj Quote

The evidence presented at hearing shows that the keyless entry program controls renters’ access to Desert Mountain. Therefore, the Administrative Law Judge concludes that Respondent was permitted to withhold documentation and communication related to the keyless entry program… due to pending litigation regarding the CC&Rs amendment that prohibits short-term rentals.

Legal Basis

A.R.S. § 33-1805(B)(2)

Topic Tags

  • pending litigation
  • records request
  • scope of discovery

Case

Docket No
21F-H2121055-REL
Case Title
Nicole Armsby (NICDON 10663 LLC) vs. Desert Mountain Master Association
Decision Date
2021-09-07
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Nicole Armsby (petitioner)
    NICDON 10663 LLC
    Appeared on behalf of herself, also referred to as Nikki,
  • Jon Dessaules (petitioner attorney)
    Armsby’s attorney, referred to as ‘Dom’,
  • Matthew Hoxsie (petitioner attorney)
    Greenberg Traurig, LLP
    Associate, Armsby’s attorney
  • Jordan (related party)
    Party referenced in communications between counsel regarding conditional approval to speak,

Respondent Side

  • Mark Sahl (HOA attorney)
    Carpenter Hazlewood Delgado & Bolen, LLP
  • Kevin C. Pollock (Executive Director)
    Desert Mountain Master Association
    Also referred to as community manager
  • Curtis Ekmark (HOA attorney)
    Respondent’s attorney, listed as Curtis S. Ekmark in later filing
  • Stephen Prall (witness)
    Desert Mountain Master Association (implied)
    Presented testimony for Respondent
  • Carlotta L. Turman (HOA attorney)
    Carpenter Hazlewood Delgado & Bolen, LLP

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Commissioner as of September 7, 2021
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
    Commissioner as of December 22, 2021
  • c. serrano (administrative clerk)
    OAH/ADRE (transmittal)
    Signed transmittal notices,,

Lee & Kim Edwards v. Scottsdale Embassy Condominium Association

Posted on by

Case Summary

Case ID21F-H2120028-REL-RHG
AgencyADRE
TribunalOAH
Decision Date2021-07-28
Administrative Law JudgeVelva Moses-Thompson
Outcomeloss
Filing Fees Refunded$0.00
Civil Penalties$0.00

Parties & Counsel

PetitionerLee & Kim EdwardsCounselTerry Foster, Esq.
RespondentScottsdale Embassy Condominium AssociationCounsel—

Alleged Violations

A.R.S. § 33-1255

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to prove by a preponderance of the evidence that the Respondent violated its CC&Rs, Bylaws, or A.R.S. § 33-1255, ruling that the statute was inapplicable due to the specific provisions in the Declaration regarding the 1/26 assessment calculation.

Why this result: Petitioner failed to meet the burden of proof, and the ALJ determined A.R.S. § 33-1255 was superseded by the Declaration, which mandated assessments based on the undivided 1/26 interest in the common elements.

Key Issues & Findings

Assessment calculation based on undivided interest in common areas

Petitioner challenged the Association’s decision to change assessments from a historical square footage basis to a 1/26 interest calculation, arguing that this method violates A.R.S. § 33-1255 by charging for limited common elements (patios/parking).

Orders: The petition of Lee & Kim Edwards is dismissed; Respondent is deemed the prevailing party.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:
  • A.R.S. § 33-1255
  • Declaration Article I, Section 5
  • Declaration Article II, Section 5
  • Declaration Article II, Section 7
  • Declaration Article IV, Section 4
  • Declaration Article VI, Section 9

Analytics Highlights

Topics: condominium, assessment, cc&r, statutory interpretation, common elements, limited common elements
Additional Citations:
  • A.R.S. § 32-2199(1)
  • A.R.S. § 33-1255
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • Vazanno v. Superior Court, 74 Ariz. 369
  • Powell v. Washburn, 211 Ariz. 553
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70

Video Overview

Audio Overview

Decision Documents

21F-H2120028-REL Decision – 899379.pdf

Uploaded 2026-04-24T11:32:11 (123.6 KB)

21F-H2120028-REL Decision – 856603.pdf

Uploaded 2026-04-24T11:32:19 (98.1 KB)

Assessment Methodology Dispute: Edwards v. Scottsdale Embassy Condominium Association

Executive Summary

This document provides a comprehensive analysis of the legal dispute between homeowners Lee & Kim Edwards (Petitioners) and the Scottsdale Embassy Condominium Association (Respondent) concerning a change in the methodology for calculating homeowner assessments. The core of the conflict was the Association’s decision to shift from a historical practice of assessments based on unit square footage to a uniform rate where each of the 26 units pays an equal 1/26 share of the common expenses.

The dispute was adjudicated by an Administrative Law Judge (ALJ) in two separate hearings. In both instances, the ALJ ruled in favor of the Association, dismissing the petitions filed by the Edwards.

Key Takeaways:

• Change in Methodology: The Association’s Board, acting on legal advice received in January 2020, concluded that its 40-year practice of using a square-footage-based assessment violated the community’s Covenants, Conditions, and Restrictions (CC&Rs). The Board subsequently implemented a 1/26 equal-share assessment method after a majority of homeowners selected this option.

• Initial Ruling on “Uniform Rate”: In the first hearing in February 2021, the Petitioners argued that the historical square footage method was a “uniform rate” and that the Association had waived its right to change the long-standing practice. The ALJ rejected this, finding that the new 1/26 rate complied with the CC&Rs’ requirement for a “uniform rate” (Article VI, Section 9) and aligned with each unit’s specified 1/26 undivided interest in the common elements (Article VI, Section 4(d)).

• Rehearing Ruling on State Statute: The Petitioners were granted a rehearing in July 2021, where they argued that the 1/26 method violated Arizona statute A.R.S. § 33-1255 by improperly charging all owners for “limited common elements” like patios and parking spaces. The ALJ again ruled against the Petitioners, concluding that the state statute did not apply. The ruling was based on a key provision in the statute: “Unless otherwise provided for in the declaration.” The judge found that the Association’s Declaration did provide otherwise by defining patios and parking as general common elements and explicitly mandating that costs be shared based on each unit’s 1/26 interest.

• Final Outcome: The petition was definitively dismissed after the rehearing, making the ALJ’s order binding. The Association’s adoption of the 1/26 assessment rate was upheld as compliant with its governing documents.

——————————————————————————–

Background of the Dispute

The legal conflict originated from a single-issue petition filed on November 20, 2020, by Lee and Kim Edwards, owners of unit 6937 in the Scottsdale Embassy Condominium development. The petition, filed with the Arizona Department of Real Estate, alleged that the Scottsdale Embassy Condominium Association had violated its CC&Rs, specifically Article VI, Section 9, and Article IV, Section 1.

The central issue was the Association Board’s decision to change the long-standing method of calculating homeowner assessments. For over 40 years, assessments had been based on the square footage of each unit. In 2020, the Board implemented a new system where the Association’s annual budget was divided equally among the 26 units, with each owner paying a 1/26 share. The Petitioners sought to enforce the historical calculation method unless and until the CC&Rs were properly amended.

Chronology of the Assessment Change

• Historical Practice: For more than four decades, the Association calculated and charged member assessments based on the square footage of each condominium unit.

• Legal Consultation (January 2020): Two members of the Association’s Board consulted with an attorney regarding the legality of the historical assessment method.

• Attorney Recommendation (January 24, 2020): The attorney advised the Association that, to ensure compliance with the CC&Rs, it should calculate assessments based on each homeowner’s 1/26 interest in the common areas. The attorney’s letter stated:

• Homeowner Consultation: Following the legal advice, the Board informed homeowners that the prior square-footage method violated the CC&Rs. The Board sought input on three potential assessment methods: the 1/26 rate, a variable blended rate, or continuing with the square footage rate. A majority of homeowners selected the 1/26 rate. The Board noted that any method other than the 1/26 rate would require a formal amendment to the CC&Rs.

• Implementation (September 26, 2020): The Board officially notified homeowners that it would begin charging assessments based on the 1/26 rate and that an amendment to the CC&Rs was not necessary to implement this change.

Initial Hearing and Decision (February 2021)

An evidentiary hearing was held on February 9, 2021, before Administrative Law Judge Velva Moses-Thompson.

Arguments Presented

Petitioners (Edwards)

1. The historical square footage rate qualified as a “uniform rate” and was compliant with the CC&Rs.
2. By using the square footage rate for over 40 years, the Association had waived its right to enforce a different method like the 1/26 rate.

Respondent (Association)

1. The plain language of the CC&Rs requires that each homeowner pay an assessment based on the 1/26 rate.
2. It is not legally possible to waive a mandatory CC&R requirement through past practice.

On February 19, 2021, the ALJ issued a decision dismissing the petition. The judge’s conclusions of law were based on a direct interpretation of the CC&Rs:

• Uniform Rate Compliance: The ALJ determined that the “preponderance of the evidence” showed that the Association’s 1/26 rate was a uniform rate that complied with Article VI, Section 9 of the CC&Rs.

• Burden of Proof: The Petitioners failed to meet their burden to prove that the Association had violated its governing documents.

• Outcome: The Association was deemed the prevailing party, and the petition was dismissed.

Rehearing and Final Decision (July 2021)

The Petitioners filed a request for a rehearing on March 30, 2021, which was granted. The rehearing was held on July 8, 2021. The Respondent did not appear at this hearing, as its counsel had withdrawn from representation without formally notifying the tribunal.

In the rehearing, the Petitioners introduced a new argument, alleging that the 1/26 assessment method violated Arizona state law, specifically A.R.S. § 33-1255.

• The core of this argument was that the 1/26 rate improperly included charges for “limited common elements,” such as patios and assigned parking spaces.

• The Petitioners contended that this forced all homeowners to pay for the maintenance of elements that were assigned to and benefited fewer than all units, in direct violation of the statute.

On July 28, 2021, the ALJ issued a final decision, once again dismissing the petition. The ruling hinged on the precise wording of both the state statute and the Association’s Declaration.

• Applicability of A.R.S. § 33-1255: The judge found that the statute did not apply to this matter. The relevant section of the law, A.R.S. § 33-1255(C), begins with the critical phrase: “Unless otherwise provided for in the declaration…”

• Supremacy of the Declaration: The ALJ concluded that the Association’s Declaration did provide otherwise. The CC&Rs explicitly:

◦ Define “Common Elements” broadly to include patios and parking areas (Article I, Section 3).

◦ Establish that each unit has an “undivided interest in the general common areas” of 1/26 (Article I, Section 5).

◦ Mandate that each unit’s share of costs for repair and maintenance of common areas is the “same as its undivided interest in the common elements” (Article IV, Section 4(d)).

• Final Outcome: Because the Declaration’s specific provisions overrode the general terms of the state statute, the Association was found to be in compliance. The petition was dismissed, and the order was deemed binding on the parties.

Key Legal Principles and Definitions

Concept

Definition / Application in Case

Burden of Proof

The Petitioners were required to establish their claim by a “preponderance of the evidence.”

Preponderance of the Evidence

Defined as “proof as convinces the trier of fact that the contention is more probably true than not.” The ALJ found the Petitioners failed to meet this standard in both hearings.

Restrictive Covenants

Arizona law requires that unambiguous restrictive covenants be enforced to give effect to the parties’ intent and be interpreted as a whole. The ALJ’s decisions were based on a direct interpretation of the CC&Rs’ language.

Common Elements (per CC&Rs)

A broad definition including multifamily structures, land, roofs, ceilings, foundations, storage spaces, patios, parking areas, recreational facilities, lawns, pipes, and conduits.

Unit (per CC&Rs)

A freehold estate consisting of the interior space of an apartment. The definition explicitly states that common elements are not part of the unit.

Undivided Interest (per CC&Rs)

Article I, Section 5 clearly establishes that “The undivided interest in the general common areas… which shall be conveyed with each respective units shall be 1/26.” This provision was central to the final ruling.

Study Guide: Edwards v. Scottsdale Embassy Condominium Association

This study guide provides a comprehensive review of the administrative case between Lee & Kim Edwards and the Scottsdale Embassy Condominium Association, based on the provided legal decisions. It includes a short-answer quiz, an answer key, suggested essay questions, and a detailed glossary of key terms.

Short-Answer Quiz

Answer the following questions in two to three sentences each, based on the information provided in the case documents.

1. What was the central conflict between the Petitioners (Lee & Kim Edwards) and the Respondent (Scottsdale Embassy Condominium Association)?

2. For over 40 years, how did the Association historically calculate assessments for homeowners?

3. What specific event in January 2020 prompted the Association’s Board to change the assessment method?

4. In the first hearing on February 9, 2021, what were the two main arguments presented by Mr. Edwards?

5. What was the Administrative Law Judge’s conclusion regarding the “uniform rate” requirement from CC&Rs Article VI, Section 9 in the initial decision?

6. Upon what new legal grounds did the Petitioners base their March 30, 2021, request for a re-hearing?

7. According to the CC&Rs, what is the defined undivided interest in the general common areas for each unit?

8. Why did the Administrative Law Judge ultimately conclude that Arizona Revised Statutes (A.R.S.) § 33-1255 did not apply in this case?

9. What legal standard of proof did the Petitioners need to meet to successfully prove their case?

10. What was the final, binding outcome of the re-hearing held on July 8, 2021?

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Answer Key

1. The central conflict concerned the method for calculating homeowner assessments. The Petitioners argued for the historical method based on unit square footage, while the Respondent implemented a new method where each of the 26 units paid an equal share (1/26 rate) of the Association’s costs.

2. For over 40 years, the Association historically calculated assessments based on the square footage of each condominium unit. This practice was changed by the Board in 2020.

3. In January 2020, two Board members met with an attorney who advised that to comply with the CC&Rs, the Association should charge assessments based on each homeowner’s 1/26 interest in the common areas, not on square footage.

4. Mr. Edwards argued that the historical square footage rate was a “uniform rate” that complied with the CC&Rs. He also contended that by using this method for 40 years, the Association had waived its right to enforce a different assessment method like the 1/26 rate.

5. The Judge concluded that the Respondent’s assessment method, based on a uniform rate of 1/26 of the Association’s costs for each unit, did comply with Article VI, Section 9. Therefore, the Petitioners failed to prove the Association had violated the CC&Rs.

6. The Petitioners based their request for a re-hearing on the new allegation that the Respondent had violated Arizona Revised Statutes (A.R.S.) § 33-1255. They argued the 1/26 rate improperly required members to pay for limited common elements, such as patios and parking spaces, not assigned to them.

7. According to Article I, Section 5 of the Declaration (CC&Rs), the undivided interest in the general common areas established and conveyed with each respective unit is 1/26.

8. The Judge concluded that A.R.S. § 33-1255 did not apply because the statute itself contains an exception: “Unless otherwise provided for in the declaration.” In this case, the Association’s Declaration explicitly required that each member be charged an assessment equivalent to their 1/26 interest in the total costs, which included patios and parking areas.

9. The Petitioners bore the burden of proof to establish their claims by a “preponderance of the evidence.” This standard requires proof that convinces the trier of fact that a contention is more probably true than not.

10. Following the re-hearing, the Administrative Law Judge again ordered that the petition of Lee & Kim Edwards be dismissed. The Respondent was deemed the prevailing party, and the order was declared binding on the parties.

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Essay Questions

The following questions are designed for longer, essay-style responses. Answers are not provided.

1. Trace the evolution of the Petitioners’ legal strategy from the initial petition filed on November 20, 2020, to the arguments made during the re-hearing on July 8, 2021. How did their core arguments change, and what new evidence or legal statutes were introduced?

2. Analyze the concept of a “uniform rate” as required by Article VI, Section 9 of the CC&Rs. Discuss how both the Petitioners and the Respondent interpreted this phrase to support their respective assessment methods (square footage vs. 1/26 rate).

3. Explain in detail the role of A.R.S. § 33-1255 in the re-hearing. Why did the Petitioners believe it supported their case, and what specific language in both the statute and the Association’s Declaration led the Administrative Law Judge to rule that it did not apply?

4. Evaluate the actions taken by the Association’s Board of Directors in 2020. Consider their consultation with an attorney, their communication with homeowners, and their final decision to implement the 1/26 rate. Discuss whether these actions were consistent with the powers and obligations outlined in the CC&Rs.

5. Discuss the legal argument of “waiver” raised by Mr. Edwards in the first hearing. Explain what he meant by this and why the Association’s 40-year history of using a square-footage-based assessment was central to this claim. Why did this argument ultimately fail?

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Glossary of Key Terms

Definition

1/26 Rate

The assessment method where the Association’s annual budget is divided 26 ways, with each unit responsible for paying an equal portion. This is based on each unit’s 1/26 undivided interest in the common areas as specified in the CC&Rs.

Administrative Law Judge (ALJ)

The independent judicial officer who presides over administrative hearings, hears evidence, and issues a decision. In this case, the ALJ was Velva Moses-Thompson.

A.R.S. § 32-2199(1)

The Arizona Revised Statute that permits a condominium unit owner to file a petition with the Department of Real Estate for a hearing regarding alleged violations of the Condominium Act.

A.R.S. § 33-1255

The Arizona Revised Statute concerning common expenses. It states that unless the declaration provides otherwise, expenses for a limited common element shall be assessed against the units to which it is assigned, and expenses benefitting fewer than all units shall be assessed exclusively against the units benefitted.

Arizona Department of Real Estate

The state agency authorized by statute to receive and decide Petitions for Hearings from members of condominium associations in Arizona.

Burden of Proof

The obligation on a party in a legal proceeding to establish its claims by a required standard of evidence. In this case, the Petitioners bore the burden of proof.

CC&Rs (Covenants, Conditions, and Restrictions)

The governing legal documents that set up the guidelines for a planned community or condominium. Also referred to as the “Declaration” in the provided documents.

Common Area / Common Elements

As defined in Article I, Section 3 of the CC&Rs, this includes the multifamily structure (except for the units), land, air space, bearing walls, roofs, storage spaces, patios, recreational facilities, lawns, pipes, and other premises designed for common use.

Declaration

Another term for the Covenants, Conditions, and Restrictions (CC&Rs).

Lee & Kim Edwards

The Petitioners in the case and owners of unit 6937 in the Scottsdale Embassy Condominium development.

Office of Administrative Hearings

An independent state agency to which the Department of Real Estate refers petitions for evidentiary hearings.

Petitioners

The party that initiates a legal action or petition. In this case, Lee & Kim Edwards.

Preponderance of the Evidence

The evidentiary standard required to be met by the Petitioners. It is defined as proof that convinces the trier of fact that a contention is “more probably true than not.”

Respondent

The party against whom a petition is filed. In this case, the Scottsdale Embassy Condominium Association.

Restricted Common Area

As defined in Article I, Section 3(b) of the CC&Rs, this refers to a separately designed and exclusive parking area for each unit as assigned by the Board of Directors.

Scottsdale Embassy Condominium Association

The Respondent in the case; the condominium unit owners’ association for the development.

Square Footage Rate

The historical method of calculating assessments for over 40 years, where each unit’s assessment was based on its square footage.

Uniform Rate

A requirement from Article VI, Section 9 of the CC&Rs that states both regular and special assessments must be fixed at a uniform rate for all units. The interpretation of this term was central to the dispute.

As defined in Article I, Section 4 of the CC&Rs, a separately designated freehold estate consisting of the space bounded by the interior surfaces of the perimeter walls, floors, ceilings, windows, and floors of each apartment. It does not include common elements.

Waiver

A legal argument made by the Petitioners that because the Association had charged assessments based on square footage for 40 years, it had relinquished or “waived” its right to enforce a different method.

4 Shocking Lessons from an HOA Lawsuit That Could Upend How You See Your Fees

Introduction: The 40-Year Mistake

If you live in a condominium or a community governed by a Homeowners Association (HOA), you likely operate under a simple assumption: the way things have always been done is the correct and legal way. Monthly fees, maintenance schedules, and community rules that have been in place for decades feel permanent and unassailable. But what if they aren’t?

This was the central question in the case of Lee & Kim Edwards versus the Scottsdale Embassy Condominium Association. For over 40 years, the Association calculated homeowner fees based on the square footage of each unit—a practice that seemed fair and logical, and one that was never questioned by residents.

Then came the twist. In January 2020, after consulting with an attorney, the HOA board announced a shocking revelation: their 40-year-old assessment method was a direct violation of the community’s own governing documents. The board presented the legal findings to the community and sought their input on how to proceed. After being given the choice between the old method, a blended rate, or a new flat-rate fee that complied with the rules, most homeowners voted for the compliant flat-rate system for every single unit, regardless of its size.

Homeowners sued to keep the old method, sparking a legal battle that went all the way to an administrative court. The resulting decisions offer surprising and crucial lessons for every homeowner paying HOA dues. Here are the four most impactful takeaways from the case that could change how you view your own community’s rules.

1. “Past Practice” Means Nothing if It Violates the Rules

The primary argument made by the petitioners, Mr. and Mrs. Edwards, was that the Association had “waived its right” to change the assessment method. After all, by using the square-footage calculation for four decades, hadn’t they established an unbreakable precedent? It seemed like a common-sense argument rooted in history and consistency.

The court, however, completely rejected this line of reasoning. The Administrative Law Judge’s decision was not based on historical practice but on the clear, written rules found in the community’s Covenants, Conditions, and Restrictions (CC&Rs). The Association argued that it’s “not possible to waive the CC&R requirement,” and the court agreed.

The Lesson: This case powerfully demonstrates that tradition or “how things have always been done” cannot override the explicit language of an HOA’s governing documents. The CC&Rs are a contract. The lesson is clear: if your HOA’s practice contradicts its documents, the practice is invalid. The board has a fiduciary duty to follow the written rules, not a 40-year-old mistake.

2. Your CC&Rs Are a Binding Contract—Read Them

Throughout the legal proceedings, the Administrative Law Judge consistently referred back to the specific text of the CC&Rs to make a final decision. The entire case ultimately hinged on the interpretation of a few key sentences written decades ago.

The most critical passage, which decided the outcome, was from Article VI, Section 4(d) of the community’s governing documents:

“Each unit’s share shall be the same as its undivided interest in the common elements of the total amount determined under the subparagraphs (a), (b), (c), and (d) above.” —Scottsdale Embassy Condominium Association CC&Rs, Article VI, Section 4(d)

This single sentence was the linchpin. It explicitly linked each unit’s assessment share to its “undivided interest in the common elements.” Another section of the document, Article I, Section 5, had already established that interest as an equal 1/26 for all 26 units.

The Lesson: This is a classic example of legal cross-referencing in a contract. Section 4(d) provided the instruction (base fees on “undivided interest”), while Article I, Section 5 provided the specific value (1/26). With both parts present and unambiguous, the court had no choice but to enforce them exactly as written, leaving no room for interpretations based on fairness or history. The contract was the contract.

3. A “Uniform Rate” Might Not Mean What You Think

One of the central points of contention was the term “uniform rate.” Article VI, Section 9 of the CC&Rs required that all assessments “must be fixed at a uniform rate for all units.”

The homeowners argued that the square footage rate was, in fact, a “uniform rate”—a consistent price per square foot applied to every unit. It’s an interpretation many of us might find reasonable.

However, the HOA Board and the court had a different interpretation. The judge found that the flat 1/26 rate was the correct interpretation of a “uniform rate” because it was uniformly applied to every unit’s established 1/26 interest in the common areas. In the court’s view, the “rate” being applied uniformly was the 1/26 fraction of the total budget. The fact that this resulted in different dollar amounts for square-footage fees was irrelevant; the legal share was what had to be uniform.

The Lesson: Common-sense terms like “uniform” can have very specific legal meanings within the context of your governing documents. The true definition is found not in a dictionary, but in how the term is defined and applied by the rest of the document’s provisions.

4. Your HOA’s Rules Can Sometimes Override State Law

In a final attempt to overturn the decision, the petitioners filed for a re-hearing. This time, they cited a specific Arizona state law, A.R.S. 33-1255. This statute says that expenses for “limited common elements”—things like assigned patios or parking spaces that only benefit specific units—should be assessed only against those units that benefit from them. The homeowners argued that the new 1/26 flat fee unfairly forced them to pay for their neighbors’ patios and parking spots, a direct violation of state law.

Surprisingly, this argument also failed. The reason is found in the crucial introductory clause of the state law itself: “Unless otherwise provided for in the declaration…”

Because the Scottsdale Embassy’s Declaration did provide otherwise—by explicitly rolling all general and restricted common area costs into the total budget before calculating each unit’s 1/26 share—the community’s own rules legally superseded the default state statute. The judge concluded that the state law “does not apply to this matter because the Declaration requires” a different method.

The Lesson: This is perhaps the most counter-intuitive lesson of all. This demonstrates a key principle of contract law and planned community governance: state statutes often provide a “default” rule for situations a community’s documents don’t address. However, they also grant communities the power to create their own specific rules, which, if legally permissible, will take precedence. Homeowners cannot assume that a state law automatically protects them if their community’s own governing documents have a more specific rule in place.

Conclusion: Are You Sure You Know What You Agreed To?

The central message from the Scottsdale Embassy case is undeniable: in an HOA, the written word is law. The CC&Rs and other governing documents are a binding contract that dictates the rules, regardless of 40 years of history, common-sense assumptions, or even some default state laws. What you believe is fair or standard practice is irrelevant if the document you agreed to upon purchase says otherwise.

This case was decided by a few sentences written decades ago. When was the last time you read your community’s governing documents from cover to cover?

Case Participants

Petitioner Side

  • Lee Edwards (petitioner, witness)
  • Kim Edwards (petitioner)
  • Teresa H. Foster (petitioner attorney)
    Ellis & Baker, P.C.
    Also referred to as Terri Foster and Terry Foster

Respondent Side

  • Lauren Vie (respondent attorney)
    Appeared for initial hearing; later noted as withdrawn
  • Caleb Koch (board president, witness)
    Scottsdale Embassy Condominium Association
  • Mary Edinburgh (board member, witness)
    Scottsdale Embassy Condominium Association
  • Beth Mulcahy (respondent attorney)
    Mulcahy Law Firm, PC
    Recipient of transmission; noted as withdrawn counsel prior to rehearing

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    OAH
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate
  • LDettorre (ADRE staff)
    Arizona Department of Real Estate
    Electronic transmission recipient
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Electronic transmission recipient
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Electronic transmission recipient
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Electronic transmission recipient
  • ncano (ADRE staff)
    Arizona Department of Real Estate
    Electronic transmission recipient

Other Participants

  • Miranda Alvarez (unknown)
    Associated with transmission for petitioner’s attorney

Thomas J Van Dan Elzen v. Carter Ranch Homeowners Association

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Case Summary

Case ID19F-H1919071-REL-RHG
AgencyADRE
TribunalOAH
Decision Date2020-01-30
Administrative Law JudgeVelva Moses-Thompson
Outcomeloss
Filing Fees Refunded$0.00
Civil Penalties$0.00

Parties & Counsel

PetitionerThomas J. Van Dan ElzenCounsel—
RespondentCarter Ranch Homeowners AssociationCounselAugustus H. Shaw IV, Esq.

Alleged Violations

A.R.S. § 33-1808

Outcome Summary

The Administrative Law Judge dismissed the Petitioner’s case, finding that the Petitioner failed to meet the burden of proof to establish that the Respondent HOA violated A.R.S. § 33-1808 or improperly adopted its Flag Display Rule.

Why this result: Petitioner failed to establish a violation of A.R.S. § 33-1808 and failed to prove that the HOA’s Flag Display Rule was inconsistent with or improperly adopted under the CC&Rs.

Key Issues & Findings

Flags and Sings

Petitioner Thomas J. Van Dan Elzen filed a petition arguing that the HOA violated A.R.S. § 33-1808 after being notified he violated Association Rules by displaying a “Trump 2020” flag. He argued the HOA’s Flag Display Rule was invalid because the CC&Rs only defined SIGNS (DCC&R 3.14) and had no reference to Flags whatsoever, thus the rule was inconsistent with the CC&Rs.

Orders: Petitioner Thomas J. Van Dan Elzen’s petition is dismissed. Respondent is deemed to be the prevailing party.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:
  • A.R.S. § 33-1808
  • A.A.C. R2-19-119
  • BLACK’S LAW DICTIONARY 1182 (6th ed. 1990)
  • 4 United States Code sections 4 through 10
  • ARIZ. REV. STAT. section 32-2199.02(B)
  • ARIZ. REV. STAT. section 12-904(A)

Analytics Highlights

Topics: Flag Display, Political Sign, CC&Rs, Rules & Regulations
Additional Citations:
  • A.R.S. § 33-1808
  • A.A.C. R2-19-119
  • 4 United States Code sections 4 through 10

Video Overview

Audio Overview

Decision Documents

19F-H1919071-REL Decision – 767071.pdf

Uploaded 2026-04-24T11:21:58 (69.0 KB)

19F-H1919071-REL Decision – 741807.pdf

Uploaded 2026-04-24T11:22:08 (78.9 KB)

Administrative Hearing Briefing: Van Dan Elzen v. Carter Ranch HOA

Executive Summary

This document provides a comprehensive analysis of the Administrative Law Judge (ALJ) Decision in the case of Thomas J. Van Dan Elzen versus the Carter Ranch Homeowners Association (HOA), case number 19F-H1919071-REL-RHG. The dispute centered on the HOA’s prohibition of a “Trump 2020” flag displayed by Mr. Van Dan Elzen at his property. The petitioner alleged this prohibition violated Arizona state law.

The ALJ ultimately dismissed the petition, ruling in favor of the Carter Ranch HOA. The decision was based on the petitioner’s failure to prove by a preponderance of the evidence that the HOA’s “Flag Display Rule” was inconsistent with its foundational Covenants, Conditions, and Restrictions (CC&Rs) or that the rule was improperly adopted. Crucially, the ALJ found that the petitioner had not sufficiently alleged a direct violation of the relevant state statute, A.R.S. § 33-1808. The ruling effectively upholds the HOA’s authority, granted by its CC&Rs, to regulate the display of flags not explicitly protected by Arizona law.

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I. Case Overview

• Case Name: Thomas J. Van Dan Elzen, Petitioner, vs. Carter Ranch Homeowners Association, Respondent.

• Case Number: 19F-H1919071-REL-RHG

• Adjudicating Body: Arizona Office of Administrative Hearings

• Presiding Judge: Administrative Law Judge Velva Moses-Thompson

• Hearing Date: January 10, 2020

• Decision Date: January 30, 2020

• Subject of Dispute: The validity of an HOA rule prohibiting the display of a “Trump 2020” political flag, which the petitioner claimed violated A.R.S. § 33-1808.

II. Chronology of Key Events

• May 21, 2019: Carter Ranch HOA notifies petitioner Thomas J. Van Dan Elzen that his “Trump 2020” flag violates Association Rules.

• June 14, 2019: Mr. Van Dan Elzen files a petition with the Arizona Department of Real Estate, alleging the HOA violated A.R.S. § 33-1808.

• November 18, 2019: The Department of Real Estate issues an order setting the matter for a rehearing.

• January 10, 2020: The rehearing is held before an Administrative Law Judge.

III. Petitioner’s Position (Thomas J. Van Dan Elzen)

Mr. Van Dan Elzen’s case was predicated on the argument that the HOA’s rules regarding flags were inconsistent with its own governing documents, specifically the Covenants, Conditions, and Restrictions (CC&Rs).

• Core Allegation: The HOA’s enforcement action violated A.R.S. § 33-1808, which governs flags and signs.

• Primary Argument: Mr. Van Dan Elzen contended that the HOA’s “Flag Display Rule” was invalid because the CC&Rs do not explicitly mention the word “flag.” He argued that the relevant section of the governing documents, DCC&R 3.14, only defines “SIGNS.”

• Direct Quotation from Petition: The petition stated the following, highlighting the perceived discrepancy:

IV. Respondent’s Position (Carter Ranch HOA)

The Carter Ranch HOA maintained that its “Flag Display Rule” was valid, properly enacted, and did not violate state law or its own governing documents.

• The “Flag Display Rule”: The HOA’s rules explicitly prohibit flying any flag other than those on an approved list, which includes:

◦ The American Flag

◦ Official flags of the U.S. Army, Navy, Air Force, Marine Corps, or Coast Guard

◦ A POW/MIA flag

◦ An Arizona Indian National flag

◦ The Arizona State flag

◦ The Gadsden Flag

• Authority to Regulate: The HOA asserted its authority to create this rule stemmed from Article V, Section 5.3 of its CC&Rs. This section grants the Board the power to adopt, amend, and repeal rules pertaining to “the health, safety or welfare of the owners… or restrictions on the use of Lots.” It also specifies that such rules are “enforceable in the same manner” as the CC&Rs themselves.

• Defense Arguments: The HOA contended that the petition should be dismissed because:

1. The Flag Display Rule was not inconsistent with the CC&Rs.

2. The rule was properly adopted under the authority granted in the CC&Rs.

3. The petitioner failed to allege that the HOA had actually violated a specific statute or provision of its governing documents.

V. Analysis of Governing Law: A.R.S. § 33-1808

This Arizona Revised Statute was central to the dispute. It places specific limitations on an HOA’s ability to regulate the display of certain flags and political signs.

Provision

Description of Regulation

Subsection A: Protected Flags

An HOA cannot prohibit the outdoor display of: The American flag (if displayed consistent with federal code), official U.S. military flags, the POW/MIA flag, the Arizona state flag, an Arizona Indian nations flag, or the Gadsden flag.

Subsection C: Political Signs

An HOA cannot prohibit the display of political signs on a member’s property, but may regulate them. Permissible regulations include:
• Time: Prohibiting display earlier than 71 days before an election and later than 3 days after an election.
• Size & Number: Regulations must be no more restrictive than applicable city/county ordinances. If no such ordinance exists, the HOA cannot limit the number of signs, but can cap the maximum aggregate dimensions at nine square feet.

• Definition of “Political Sign”: The statute defines a political sign as “a sign that attempts to influence the outcome of an election.”

VI. Administrative Law Judge’s Decision and Order

The ALJ concluded that the petitioner failed to meet the required burden of proof, which is to prove a violation by a preponderance of the evidence.

1. Rule Consistency: The ALJ concluded that the “Petitioner has not established that the Flag Display Rule was inconsistent with the CC&Rs.”

2. Rule Adoption: The ALJ found that the “Petitioner has not established that the Association improperly adopted the Flag Display Rule under its CC&Rs.”

3. Failure to Allege Violation: The judge noted that the “Petitioner has not alleged that Carter Ranch violated A.R.S. § 33-1808.” This indicates a failure in the petition’s framing to connect the HOA’s actions to a specific statutory prohibition.

4. Final Determination: Based on these conclusions, the judge determined that “Mr. Van Dan Elzen’s petition should be dismissed and the Respondent be deemed to be the prevailing party in this matter.”

• Dismissal: “IT IS ORDERED that Petitioner Thomas J. Van Dan Elzen’s petition is dismissed.”

• Binding Nature: The order is binding on the parties as it resulted from a rehearing.

• Appeal Rights: Any appeal must be filed with the superior court within 35 days from the date the order was served.

Study Guide: Van Dan Elzen v. Carter Ranch Homeowners Association

This study guide provides a detailed review of the Administrative Law Judge Decision in the case of Thomas J. Van Dan Elzen versus the Carter Ranch Homeowners Association (No. 19F-H1919071-REL-RHG). The guide includes a short-answer quiz with an answer key, a set of essay questions for deeper analysis, and a comprehensive glossary of key terms found within the legal decision.

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Quiz: Test Your Understanding

Answer the following questions in two to three sentences each, based on the information in the provided source text.

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

2. What specific action taken by Thomas J. Van Dan Elzen initiated the dispute with the Carter Ranch Homeowners Association?

3. What was Mr. Van Dan Elzen’s central argument for why the HOA’s Flag Display Rule was invalid?

4. On what authority did the Carter Ranch HOA claim it had the right to create and enforce its Flag Display Rule?

5. According to the HOA’s “Flag Display Rule,” which specific flags are homeowners permitted to fly?

6. What is the legal standard of proof the petitioner was required to meet in this hearing, and how is it defined in the decision?

7. What protection does Arizona Revised Statutes (A.R.S.) § 33-1808(C) provide for “political signs”?

8. What were the two key failures of the petitioner’s case, as identified in the Administrative Law Judge’s conclusions of law?

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

10. What are the next steps for a party wishing to challenge the Administrative Law Judge’s order?

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Quiz Answer Key

1. The primary parties were the Petitioner, Thomas J. Van Dan Elzen, who brought the complaint, and the Respondent, Carter Ranch Homeowners Association, which was defending its actions. Mr. Van Dan Elzen represented himself, while the HOA was represented by its attorney, Augustus H. Shaw IV, Esq.

2. The dispute began on or about May 21, 2019, when the Carter Ranch HOA notified Mr. Van Dan Elzen that he had violated its rules by displaying a “Trump 2020” flag in his front yard. This notice of violation prompted Mr. Van Dan Elzen to file a petition with the Arizona Department of Real Estate.

3. Mr. Van Dan Elzen’s central argument was that the Flag Display Rule was inconsistent with the community’s Covenants, Conditions and Restrictions (CC&Rs). He contended that because CC&R section 3.14 only defines “SIGNS” and makes no reference to “Flags,” the HOA had no basis in the CC&Rs to regulate his flag.

4. The Carter Ranch HOA asserted its authority based on Article V, Section 5.3 of its CC&Rs. This section grants the HOA Board the power to adopt, amend, and repeal rules and regulations pertaining to the health, safety, or welfare of the owners and restrictions on the use of Lots.

5. The HOA’s Flag Display Rule prohibits flying any flag other than the American Flag, an official replica of a U.S. military flag (Army, Navy, Air Force, Marine Corps, or Coast Guard), a POW/MIA flag, an Arizona Indian National flag, the Arizona State flag, and the Gadsden Flag.

6. The petitioner was required to prove his case by a “preponderance of the evidence.” The decision defines this as “Evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”

7. A.R.S. § 33-1808(C) prevents an HOA from prohibiting the display of political signs on a member’s property, although it allows for regulation. An HOA cannot prohibit political signs earlier than 71 days before an election or later than three days after, and its rules on size and number can be no more restrictive than applicable city or county ordinances.

8. The Judge concluded that the petitioner failed to establish that the Flag Display Rule was improperly adopted or inconsistent with the CC&Rs. Furthermore, the Judge concluded that the petitioner had not actually alleged that Carter Ranch violated the specific statute he cited, A.R.S. § 33-1808.

9. The final Order was that Petitioner Thomas J. Van Dan Elzen’s petition is dismissed. The Judge also deemed the Respondent, Carter Ranch HOA, to be the prevailing party in the matter.

10. A party wishing to appeal the order must seek judicial review by filing an appeal with the superior court. This appeal must be filed within thirty-five days from the date the order was served upon the parties, as prescribed by state statutes.

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Essay Questions for Deeper Analysis

The following questions are designed to encourage a more in-depth analysis of the case. No answers are provided.

1. Analyze the petitioner’s argument that the Flag Display Rule was invalid because the word “flag” does not appear in the CC&Rs. Why was this argument ultimately unconvincing to the Administrative Law Judge?

2. Explain the legal distinction between a “flag” and a “political sign” as presented in A.R.S. § 33-1808. How might the petitioner’s case have differed if he had argued his “Trump 2020” flag was a “political sign” instead of a flag?

3. Discuss the authority granted to the Carter Ranch HOA Board by Article V, Section 5.3 of its CC&Rs. How did the HOA use this section to justify its Flag Display Rule, and why was this justification accepted by the court?

4. Evaluate the Administrative Law Judge’s conclusion that the petitioner “has not alleged that Carter Ranch violated A.R.S. § 33-1808.” How can this be true when the petitioner’s initial filing explicitly cited this statute?

5. Based on the provided text of A.R.S. § 33-1808, under what specific circumstances could a homeowner in Carter Ranch successfully challenge the HOA’s rules on outdoor displays?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

A judge who presides over administrative hearings. In this case, Velva Moses-Thompson served as the ALJ in the Office of Administrative Hearings.

A.R.S. (Arizona Revised Statutes)

The codified collection of laws for the state of Arizona. The case centered on an alleged violation of A.R.S. § 33-1808.

CC&Rs (Covenants, Conditions and Restrictions)

The governing legal documents that set up the guidelines for a planned community or subdivision. The Carter Ranch CC&Rs grant the HOA Board the authority to adopt rules and regulations.

Department

Refers to the Arizona Department of Real Estate, the state agency authorized to receive and decide petitions from members of homeowners’ associations.

Flag Display Rule

The specific rule created by the Carter Ranch HOA that prohibits flying any flag other than the American, military, POW/MIA, Arizona Indian National, Arizona State, and Gadsden flags.

Homeowners’ Association (HOA)

An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents. The Carter Ranch Homeowners Association is the Respondent in this case.

Petitioner

The party who files a petition or brings a legal action against another party. In this case, the petitioner is Thomas J. Van Dan Elzen.

Political Sign

Defined by A.R.S. § 33-1808(C) as “a sign that attempts to influence the outcome of an election.” HOAs are restricted in their ability to prohibit the display of such signs.

Preponderance of the evidence

The burden of proof required in this proceeding. It is defined as “Evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it,” meaning the fact is more probable than not.

Prevailing Party

The party who wins the legal case. The Administrative Law Judge deemed the Respondent (Carter Ranch HOA) to be the prevailing party.

Rehearing

A second hearing of a case to reconsider the issues. This case was decided as a result of a rehearing held on January 10, 2020.

Respondent

The party against whom a petition is filed; the party who must respond to the complaint. In this case, the respondent is the Carter Ranch Homeowners Association.

He Fought the HOA Over a Political Flag—And Lost. Here Are 3 Surprising Reasons Why.

Introduction: The Pride and the Problem

Imagine this: You want to display a flag on your own property to support a political candidate. It feels like a fundamental right, an expression of free speech on your home turf. But then, a letter arrives from your Homeowners Association (HOA) citing you for a violation. This exact scenario happened to Thomas J. Van Dan Elzen, who displayed a “Trump 2020” flag and promptly received a violation notice from the Carter Ranch HOA in Arizona.

Believing the HOA was overstepping its authority, Mr. Van Dan Elzen took them to court. He lost. The outcome might seem counter-intuitive, but the court’s decision reveals crucial lessons for any homeowner living under an HOA. Here are the three surprising legal reasons why the HOA won.

1. The Power of the Fine Print: Why a “Loophole” Wasn’t Enough

Mr. Van Dan Elzen built his case on a clever textual argument. He alleged that the HOA’s rule against his flag was invalid because the section of the master community documents—the Covenants, Conditions, and Restrictions (CC&Rs)—he believed it was based on only regulated “SIGNS” and made no mention of “FLAGS.” He argued that since the document didn’t explicitly prohibit flags, the rule against his was unenforceable.

This seemingly logical “loophole” argument failed. The HOA countered by pointing to a different, much broader clause in their CC&Rs. Article V, Section 5.3, gave the HOA board expansive power to create new rules.

The Board may, from time to time, adopt, amend and repeal rules and regulations pertaining to: … (iii) the health, safety or welfare of the owners, Lessees and Residence, or (iv) restrictions on the use of Lots…

This general power to create rules for the “welfare of the owners” was enough to give the HOA the legal authority to regulate flags, even if the word “flag” wasn’t in the specific section the homeowner cited. The broad power to govern trumped the narrow, semantic argument.

2. A Flag Is Not a Sign (At Least, Not According to the Law)

While the homeowner’s flag was political in nature, it did not receive the legal protections granted to “political signs” under Arizona law. This distinction proved fatal to his case.

The relevant statute, A.R.S. § 33-1808, is highly specific about which flags an HOA is forbidden from prohibiting. The protected list includes: the American flag, official military branch flags, the POW/MIA flag, the Arizona state flag, Arizona Indian nations flags, and the Gadsden flag. Critically, the Carter Ranch HOA’s own Flag Display Rule mirrored this state-approved list exactly, demonstrating they had aligned their regulations with the law. A political campaign flag, like “Trump 2020,” is not on this protected list.

The same law does protect political signs, but it defines them very precisely:

“political sign” means a sign that attempts to influence the outcome of an election, including supporting or opposing the recall of a public officer or supporting or opposing the circulation of a petition for a ballot measure, question or proposition or the recall of a public officer.

The key takeaway is that the law treats a political flag differently from a political sign. Because the “Trump 2020” item was a flag and not on the state’s protected flag list, the HOA was well within its rights to restrict its display based on its own community rules.

3. A Critical Misstep: Arguing the Wrong Point

The most decisive reason for the loss was not a procedural error, but a substantive legal failure. Mr. Van Dan Elzen filed his petition with the state on the grounds that the HOA had violated a specific state law, A.R.S. § 33-1808, which governs flags and political signs.

However, his entire case was built on arguing that the HOA’s internal rules were inconsistent with its own CC&Rs—the “sign” versus “flag” argument. This was the wrong legal target. To win, he had to prove that the HOA had violated the state statute. But the statute explicitly allows an HOA to regulate any flag not on the protected list. By regulating his “Trump 2020” flag, the HOA was doing exactly what the state law permitted. His argument about internal documents, even if correct, did not add up to a violation of the state law he sued under.

The Administrative Law Judge recognized this fundamental flaw, concluding that the homeowner hadn’t actually made a case for a statutory violation at all.

Moreover, Petitioner has not alleged that Carter Ranch violated A.R.S. § 33-1808.

This is a crucial lesson: it’s not enough to feel wronged. Your argument must directly prove that the specific law you cite in your complaint has actually been broken. The homeowner’s claim was dismissed because his central argument was irrelevant to the law he needed to prove was violated.

Conclusion: Know Your Rights, and Your Rules

The case of the “Trump 2020” flag is a powerful illustration for homeowners everywhere. It highlights three critical realities of living in an HOA: the broad rule-making power granted by community documents can override perceived loopholes; state laws make very specific and narrow distinctions between protected items like signs and flags; and a sound legal strategy is paramount.

This case is a stark reminder that in an HOA, your property rights are defined not by what you feel is right, but by what is written down. Before you make a stand, are you certain you’re fighting the right battle on the right legal ground?

Case Participants

Petitioner Side

  • Thomas J. Van Dan Elzen (petitioner)
    Appeared and testified on his own behalf

Respondent Side

  • Augustus H. Shaw IV (attorney)
    Shaw & Lines LLC
    Appeared for Carter Ranch Homeowners Association

Neutral Parties

  • Velva Moses-Thompson (ALJ)
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate

Other Participants

  • Dustin Snow (property manager)
    SNOW PROPERTY SERVICES
    Recipient of order transmission