The ALJ found that the Respondents violated the CC&Rs by operating a business that created traffic and parking. The Respondents were ordered to cease business operations and pay a $500.00 civil penalty. The Petitioner's request for a refund of its filing fee was denied.
Why this result: Petitioner's request for refund of the filing fee was denied because they cited no authority showing that the refund was within the tribunal’s authority.
Key Issues & Findings
Violation of Residential Use covenant prohibiting traffic/parking generation by business
The Petitioner HOA alleged that the Respondents, co-owners of the unit, violated CC&Rs Article 3, section 3.1 by operating a payroll processing company out of the unit. The ALJ found that the business required two employees to drive to the unit daily, thereby creating traffic and parking, which clearly and unambiguously violates the CC&R provision prohibiting non-residential use that creates traffic or parking.
Orders: Respondents were ordered to cease business operations at the unit (720 E. North Lane, Unit 1) within thirty-five days to comply with CC&R Article 3, section 3.1, and pay a civil penalty of $500.00 to the Department of Real Estate within sixty days. The Petitioner's request for refund of the filing fee was denied.
Filing fee: $0.00, Fee refunded: No, Civil penalty: $500.00
Disposition: petitioner_win
Cited:
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
19F-H1918009-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2019-03-04
Administrative Law Judge
Velva Moses-Thompson
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Rogelio A. Garcia
Counsel
—
Respondent
Villagio at Tempe Homeowners Association
Counsel
Nathan Tennyson
Alleged Violations
ARIZ. REV. STAT. section 33-1242
Outcome Summary
The Administrative Law Judge dismissed the petition based on a rehearing, concluding that the Petitioner failed to prove the HOA violated A.R.S. § 33-1242 because the Petitioner's failure to respond by certified mail within 21 days meant the HOA's duties to provide further information or notice of the right to petition ADRE were never triggered.
Why this result: The Petitioner failed to carry the burden of proof to show that the Respondent committed the alleged violation of A.R.S. § 33-1242. The HOA was deemed not obligated to provide the specific statutory disclosures because the Petitioner did not respond to the notices of violation by certified mail within 21 calendar days.
Key Issues & Findings
Alleged violation of HOA notice requirements
Petitioner alleged Respondent violated A.R.S. § 33-1242 by failing to provide specific information (observer name, notice of ADRE petition right) and restricting the 21-day response period in violation notices concerning short term lease provisions. The ALJ found that because the Petitioner did not respond by certified mail within 21 days, the HOA was not required to provide the information under A.R.S. § 33-1242(C) or the notice of administrative hearing option under A.R.S. § 33-1242(D).
Orders: Petitioner’s petition is dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. section 33-1242
ARIZ. REV. STAT. section 32-2199.01
ARIZ. REV. STAT. section 32-2199.02
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
Analytics Highlights
Topics: HOA, notice of violation, statutory interpretation, right to respond, administrative hearing
Administrative Hearing Briefing: Garcia vs. Villagio at Tempe HOA
Executive Summary
This briefing document synthesizes the findings, arguments, and conclusions from two administrative law judge decisions concerning a dispute between homeowner Rogelio A. Garcia and the Villagio at Tempe Homeowners Association (“Villagio”). The core of the dispute was Mr. Garcia’s allegation that Villagio violated Arizona Revised Statute (A.R.S.) § 33-1242 in its handling of violation notices related to an alleged breach of short-term rental policies.
The Administrative Law Judge ultimately dismissed Mr. Garcia’s petition in both an initial hearing and a subsequent rehearing, finding that he failed to meet the burden of proof. The decisions consistently hinged on a critical point: Mr. Garcia did not respond to Villagio’s violation notices by certified mail within the 21-day period prescribed by the statute. This failure meant that the HOA’s subsequent obligations under the statute—specifically, to provide the name of the violation’s observer and to give notice of the right to a state administrative hearing—were never triggered. Villagio successfully argued that by including its own internal appeal process in the violation notices, it had fulfilled its legal requirements under the circumstances. The final ruling deemed Villagio the prevailing party, with the decision after rehearing being binding on both parties.
Background of the Dispute
The case, No. 19F-H1918009-REL, was adjudicated by Administrative Law Judge Velva Moses-Thompson within the Arizona Office of Administrative Hearings, following a petition filed by Mr. Garcia with the Arizona Department of Real Estate.
Timeline of Notices and Fines
Villagio issued a series of notices to Mr. Garcia alleging that his unit was being rented in violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs) regarding short-term leases.
Date of Notice
Allegation / Action Taken
Instructions Provided to Homeowner
March 8, 2018
Alleged violation of short-term lease provisions.
“If you wish to contest this notice… file an appeal with the Board of Directors… Requests for an appeal must be received within 10 days of receipt of this notice.”
March 22, 2018
A fine of $1,000 posted to Mr. Garcia’s account for the ongoing violation.
Same instructions to appeal within 10 days. The notice also included the phrase, “Please bring this issue into compliance within 10 days of this notice.”
April 5, 2018
A fine of $2,000 posted to Mr. Garcia’s account for the ongoing violation.
Same instructions to appeal within 10 days.
Procedural History
1. Violation Notices: Villagio sent the three notices in March and April 2018.
2. Homeowner Inaction (Statutory): Mr. Garcia did not respond to any of the notices by sending a certified letter within the 21-day period allowed by A.R.S. § 33-1242(B).
3. Homeowner Action (Internal): Mr. Garcia did eventually file an appeal with Villagio regarding the violation and fines, but the HOA did not change its position.
4. Petition Filed: On or about August 17, 2018, Mr. Garcia filed a petition with the Arizona Department of Real Estate, alleging Villagio violated state statutes.
5. Initial Hearing: An evidentiary hearing was held on October 30, 2018.
6. First Decision: On November 19, 2018, the Administrative Law Judge (ALJ) issued a decision dismissing Mr. Garcia’s petition.
7. Rehearing Granted: Mr. Garcia requested a rehearing, which was granted and scheduled.
8. Rehearing: The rehearing was held on February 12, 2019, with testimony from Mr. Garcia and Tom Gordon, Villagio’s Community Manager.
9. Final Decision: On March 4, 2019, the ALJ issued a final decision again dismissing Mr. Garcia’s petition. This order was declared binding and appealable only to the superior court.
Core Legal Arguments and Statutory Interpretation
The case centered on the interpretation and application of A.R.S. § 33-1242, which governs the process for notifying and responding to violations of condominium documents.
Statutory Framework: A.R.S. § 33-1242
• Section (B): A unit owner receiving a violation notice may provide the association with a written response via certified mail within 21 calendar days of the notice date.
• Section (C):If the owner sends a response as described in Section (B), the association must then respond within 10 business days with specific information, including the name of the person who observed the violation and the process to contest the notice.
• Section (D): An association must give a unit owner written notice of their option to petition for a state administrative hearing unless the information regarding the contest process (required in Section C, paragraph 4) is already provided in the initial violation notice.
Petitioner’s Position (Rogelio A. Garcia)
Mr. Garcia argued that Villagio violated A.R.S. § 33-1242 on several grounds:
• The violation letters did not allow him to respond by certified mail within 21 days.
• The notices failed to include the first and last name of the person(s) who observed the violation.
• The notices failed to inform him of his right to petition for an administrative hearing with the state real estate department.
• During the rehearing, he contended that Villagio effectively prevented him from using the 21-day statutory response period. He claimed the rapid succession of notices (14 days apart) and the language demanding compliance “within 10 days” led him to believe he “would only be 10 days before he would acquire another violation.”
Respondent’s Position (Villagio at Tempe HOA)
Villagio disputed all of Mr. Garcia’s allegations, arguing that its actions were fully compliant with the statute:
• The obligation to provide the observer’s name under Section (C) is only triggered after the homeowner first submits a timely certified mail response, which Mr. Garcia failed to do.
• The obligation to provide notice of the right to a state administrative hearing under Section (D) was not applicable because Villagio did provide its internal process for contesting the notice in every letter sent.
• They did not prevent Mr. Garcia from responding. At the rehearing, Mr. Garcia admitted under cross-examination that he was not prohibited by any court order from sending a response.
• Villagio’s Community Manager, Tom Gordon, testified that while the HOA’s policy gives homeowners 10 days to contest internally, the association does not restrict them from also using the 21-day statutory response period.
• As a further defense in the rehearing, Villagio argued that A.R.S. § 33-1242 was not applicable at all, asserting the statute addresses violations concerning the “condition of the property,” whereas Mr. Garcia’s violation concerned the “use of his property.”
Administrative Law Judge’s Findings and Decision
The Administrative Law Judge’s decisions in both the initial hearing and the rehearing were consistent, ruling decisively in favor of the Respondent, Villagio.
Burden of Proof
In both decisions, the Judge established that Mr. Garcia, as the petitioner, bore the burden of proof to show that a violation occurred. The standard of proof required was a “preponderance of the evidence,” defined as evidence with the “most convincing force.”
Key Conclusions of Law
1. Homeowner’s Failure to Respond Was Decisive: The Judge found it was “undisputed” that Mr. Garcia did not respond to any of the three notices within the 21-day period via certified mail. This failure was the central reason his petition was dismissed.
2. HOA Obligations Were Not Triggered: Because Mr. Garcia did not initiate the process described in A.R.S. § 33-1242(B), Villagio’s corresponding obligation under Section (C) to provide the observer’s name was never activated.
3. Internal Appeal Process Satisfied Statutory Requirement: The Judge concluded that because Villagio included instructions on how to contest the notice (i.e., appeal to the Board of Directors) in its letters, it was not required under Section (D) to provide separate notice of the right to a state administrative hearing.
4. No Evidence of Prevention: The Judge found that Mr. Garcia “provided no evidence to establish that Villagio prevented him from responding.” The issuance of subsequent notices and fines before the 21-day period had lapsed was not found to constitute a legal barrier that prevented Mr. Garcia from exercising his statutory right to respond.
5. Final Order: Mr. Garcia failed to establish that Villagio violated A.R.S. § 33-1242. His petition was ordered to be dismissed, and Villagio was deemed the prevailing party. The order issued after the rehearing on March 4, 2019, is binding on the parties and can only be appealed by seeking judicial review in the superior court within 35 days of service.
Study Guide – 19F-H1918009-REL-RHG
Study Guide: Garcia v. Villagio at Tempe Homeowners Association
Answer the following ten questions in 2-3 sentences each, based on the provided source documents.
1. What was the initial violation alleged by the Villagio at Tempe Homeowners Association (Villagio) against Rogelio A. Garcia?
2. According to ARIZ. REV. STAT. § 33-1242(B), what specific action must a unit owner take after receiving a violation notice to trigger the association’s obligations under subsection C?
3. Who bears the burden of proof in this type of administrative hearing, and what is the standard of proof required?
4. Why did the Administrative Law Judge rule that Villagio was not required to provide Mr. Garcia with the name of the person who observed the violation?
5. What was Mr. Garcia’s primary argument during the February 12, 2019 rehearing for why he felt he was prevented from responding to the violation notices?
6. What argument did Villagio present at the rehearing distinguishing between the “condition” of a property and the “use” of a property?
7. What two fines were imposed on Mr. Garcia’s account, and on what dates were the notices sent?
8. Why did the Judge conclude that Villagio was not obligated to inform Mr. Garcia of his right to petition for an administrative hearing with the state real estate department?
9. What was the testimony of Tom Gordon, the Community Manager for Villagio, regarding the association’s policy for contesting a notice?
10. What was the final outcome of both the initial hearing on October 30, 2018, and the rehearing on February 12, 2019?
——————————————————————————–
Answer Key
1. What was the initial violation alleged by the Villagio at Tempe Homeowners Association (Villagio) against Rogelio A. Garcia? The initial violation alleged by Villagio was that Mr. Garcia’s unit was being rented in violation of the short-term lease provisions located in Villagio’s Covenants, Conditions, and Restrictions (CC&Rs). The first notice of this violation was mailed to Mr. Garcia on March 8, 2018.
2. According to ARIZ. REV. STAT. § 33-1242(B), what specific action must a unit owner take after receiving a violation notice to trigger the association’s obligations under subsection C? To trigger the association’s obligations, a unit owner who receives a written notice of violation must provide the association with a written response. This response must be sent by certified mail within twenty-one calendar days after the date of the notice.
3. Who bears the burden of proof in this type of administrative hearing, and what is the standard of proof required? The petitioner, Mr. Garcia, bears the burden of proof to show that the respondent committed the alleged violation. The standard of proof is a “preponderance of the evidence,” which is defined as evidence with the most convincing force that is sufficient to incline a fair and impartial mind to one side of the issue.
4. Why did the Administrative Law Judge rule that Villagio was not required to provide Mr. Garcia with the name of the person who observed the violation? The judge ruled that Villagio was not required to provide the observer’s name because that obligation is only triggered after a unit owner responds to the violation notice in writing by certified mail within 21 days. It is undisputed that Mr. Garcia did not respond to the notices within the 21-day period, so Villagio’s obligation was never activated.
5. What was Mr. Garcia’s primary argument during the February 12, 2019 rehearing for why he felt he was prevented from responding to the violation notices? Mr. Garcia argued that Villagio prevented him from responding by certified mail within 21 days because it failed to wait 21 days before issuing additional notices and imposing fines. He stated that the notices’ language requiring compliance within 10 days made him believe he would acquire another violation before the 21-day statutory response period had passed.
6. What argument did Villagio present at the rehearing distinguishing between the “condition” of a property and the “use” of a property? Villagio contended that A.R.S. § 33-1242 does not apply to this case at all because the statute addresses violations related to the “condition” of the property. Villagio argued that it notified Mr. Garcia that the “use” of his property violated its short-term rental policy, not that a physical condition of the property was in violation.
7. What two fines were imposed on Mr. Garcia’s account, and on what dates were the notices sent? A fine of $1,000 was posted to Mr. Garcia’s account, with the notice being sent on March 22, 2018. Subsequently, a $2,000 fine was posted to his account for the same violation, and that notice was sent on April 5, 2018.
8. Why did the Judge conclude that Villagio was not obligated to inform Mr. Garcia of his right to petition for an administrative hearing with the state real estate department? The Judge concluded that Villagio was not obligated to provide this information because A.R.S. § 33-1242(D) only requires it if the association fails to provide the unit owner with the process for contesting the notice. Villagio’s notices all contained instructions on how to contest the violation, specifically by filing an appeal with the Board of Directors via a provided website.
9. What was the testimony of Tom Gordon, the Community Manager for Villagio, regarding the association’s policy for contesting a notice? Tom Gordon testified that homeowners are provided with 10 days to contest a notice with Villagio, pursuant to Villagio’s short-term rental policy. When asked if Villagio would have abided by “this statute” (A.R.S. § 33-1242) if Mr. Garcia had responded in twenty-one days, Mr. Gordon replied, “No.”
10. What was the final outcome of both the initial hearing on October 30, 2018, and the rehearing on February 12, 2019? In both the initial hearing and the rehearing, the Administrative Law Judge found that Mr. Garcia failed to establish that Villagio violated A.R.S. § 33-1242. Consequently, Mr. Garcia’s petition was dismissed in both instances, and Villagio was deemed the prevailing party.
——————————————————————————–
Essay Questions
Develop detailed essay-format answers to the following prompts, drawing evidence and examples exclusively from the provided source documents.
1. Analyze the central arguments presented by both Rogelio A. Garcia and the Villagio at Tempe Homeowners Association regarding the application of ARIZ. REV. STAT. § 33-1242. How did the Administrative Law Judge interpret the statute in relation to these arguments in the final decision?
2. Discuss the concept of “burden of proof” and “preponderance of the evidence” as applied in this case. Explain how Mr. Garcia’s failure to meet this burden led to the dismissal of his petition in both the initial hearing and the rehearing.
3. Trace the timeline of events from the first notice sent by Villagio on March 8, 2018, to the final order on March 4, 2019. Explain how Mr. Garcia’s actions, or lack thereof, at key moments influenced the legal obligations of the association and the ultimate outcome of the case.
4. Evaluate Villagio’s argument that A.R.S. § 33-1242 applies only to the “condition” of a property and not its “use.” Although the judge’s decision did not ultimately hinge on this point, discuss the potential implications of this distinction in homeowner association disputes.
5. Explain the two distinct procedural paths available to a unit owner after receiving a violation notice as outlined in this case: the association’s internal appeal process and the statutory process under A.R.S. § 33-1242. Why did the path Mr. Garcia chose fail to trigger the statutory protections he sought?
——————————————————————————–
Glossary
Definition
Administrative Law Judge (ALJ)
The official who presides over the administrative hearing and rehearing, evaluates evidence, and issues a decision. In this case, Velva Moses-Thompson.
ARIZ. REV. STAT. (A.R.S.)
The abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona that regulate condominiums and planned communities.
Arizona Department of Real Estate (Department)
The state agency that has authority over homeowner association disputes and with which homeowners may petition for a hearing.
Burden of Proof
The obligation of a party in a legal proceeding to prove their allegations. In this case, Mr. Garcia bore the burden of proof.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing documents of the Villagio at Tempe Homeowners Association, which contain the short-term lease provisions Mr. Garcia was alleged to have violated.
Office of Administrative Hearings
The venue where the evidentiary hearing and rehearing for this matter were held.
Petitioner
The party who initiates a legal action by filing a petition. In this case, Rogelio A. Garcia.
Preponderance of the Evidence
The standard of proof required in this matter, defined as “The greater weight of the evidence…that has the most convincing force…sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
Rehearing
A second hearing on a matter, granted in this case at Mr. Garcia’s request after the initial Administrative Law Judge Decision was issued.
Respondent
The party against whom a petition is filed and who must respond to the allegations. In this case, Villagio at Tempe Homeowners Association.
Blog Post – 19F-H1918009-REL-RHG
He Fought His HOA and Followed Their Rules. Here’s Why He Still Lost.
1.0 Introduction: The Dreaded Letter
For many homeowners, it’s a familiar and unwelcome sight: a crisp envelope from the Homeowners Association (HOA) containing a formal, intimidating violation notice. Your first instinct is to act, to follow the instructions, and to fight back against what feels like an unfair accusation. You read the letter, see a process for an appeal, and dutifully follow it, believing you are protecting your rights. But what if the process outlined in the letter isn’t the one that truly matters under the law?
This isn’t a theoretical warning. It’s the hard lesson learned by a real homeowner in Arizona, Rogelio A. Garcia, who took on his HOA, Villagio at Tempe. He believed the association had violated his rights, and unlike many homeowners, he didn’t ignore the notices—he took action. He filed an appeal with the HOA, just as their letter instructed. Yet, he lost his case, not because he was wrong on the facts, but because he fell into a subtle procedural trap, following the HOA’s internal process while missing a separate, more powerful one defined by state law.
This article breaks down the top three legal takeaways from that court decision. It reveals how taking the wrong action can be just as costly as taking no action at all, offering crucial strategic insights for any homeowner facing a dispute with their association.
2.0 Takeaway 1: Your Rights Often Have an ‘On’ Switch You Must Flip First
Mr. Garcia’s primary complaint was that the HOA failed to provide him with the name of the person who reported his alleged violation—a requirement under Arizona statute A.R.S. § 33-1242. On the surface, this seems like a clear-cut right afforded to homeowners.
However, the court revealed a counter-intuitive legal reality. The HOA’s legal obligation to provide the reporter’s name was not automatic. That right only became active—the obligation was only triggered—if the homeowner first took a specific, formal step: sending a written response to the violation notice via certified mail within 21 calendar days. The record was clear that Mr. Garcia did not send such a response to the March 8, March 22, or April 5 notices. This single procedural failure was fatal to his claim.
The judge’s finding on this point was direct and unambiguous:
“Because Mr. Garcia did not respond in the 21 day period, Villagio was not required to provide Mr. Garcia with the first and last name of the person or persons who observed the violation.”
This illustrates a critical principle: your most important legal rights may exist in state law, but they often lie dormant. To activate them, you must flip the “on” switch by taking the precise action required by statute, which may be entirely different from the process described in the HOA’s notice.
3.0 Takeaway 2: An Internal Process Can Legally Replace—and Distract From—a State-Level One
So why would an engaged homeowner like Mr. Garcia, who went so far as to file an appeal, neglect to send the critical 21-day certified letter? The answer lies in the second key takeaway: the HOA’s violation notice offered its own, separate appeal process with a much shorter deadline, creating a critical and costly distraction.
Mr. Garcia’s second major argument was that Villagio violated the law by not informing him of his right to petition for an administrative hearing with the state real estate department. Again, the law contained a crucial nuance. Under A.R.S. § 33-1242(D), an HOA is only required to notify a homeowner of the state hearing option if it fails to provide its own process for contesting the notice. Villagio’s letters did include a process: the homeowner could “file an appeal with the Board of Directors… within 10 days of receipt of this notice.”
Court records show Mr. Garcia followed this path and “filed an appeal with Villagio.” By doing so, he engaged with the HOA on their terms, likely focusing all his energy on meeting that urgent 10-day deadline. Because Villagio provided this internal process, the judge concluded it had met its legal obligation and was not required to inform Mr. Garcia about the alternative state-level hearing. This created a procedural trap: the HOA satisfied its legal requirement by offering an internal process that simultaneously diverted the homeowner’s attention from the more powerful, but less obvious, 21-day statutory deadline that would have unlocked his other rights.
4.0 Takeaway 3: Conflicting Deadlines Can Create a Legal Minefield
During a rehearing, Mr. Garcia argued that the HOA’s communication style effectively “prevented” him from using his full 21-day statutory response window. The notices demanded compliance within 10 days and were sent every 14 days with escalating fines. He felt the rapid succession of notices created a pressure cooker, making it impossible to properly exercise his rights.
The court flatly rejected this argument, highlighting a harsh legal truth. The judge found no evidence that Villagio had explicitly told Mr. Garcia he could not respond or had physically prevented him from sending a certified letter. The issuance of a second notice with a demanding 10-day timeline did not legally nullify the 21-day window he had to respond to the first. When asked directly if he was prohibited by a court order from sending a response, Mr. Garcia answered, “No.”
This reveals a common tactic, whether intentional or not, in HOA disputes. The violation notices contained two conflicting timelines: a prominent, urgent “10 days to comply” demand and the less obvious, but legally superior, 21-day statutory right to respond. This conflict creates confusion and pressure, causing homeowners to focus on the immediate threat (the 10-day deadline) while missing the most important legal one. The court, however, places the burden squarely on the homeowner to navigate this minefield, as feeling pressured is not a legal defense for failing to meet a statutory deadline.
5.0 Conclusion: Know the Rules Before You Play the Game
The case of Mr. Garcia versus the Villagio at Tempe HOA is a powerful reminder that successfully challenging an HOA is not about being “right,” or even about taking action. It is about taking the correct, procedurally perfect action defined by law.
Mr. Garcia was not passive; he engaged and appealed the violation. His case was lost because he followed the path laid out for him by the HOA, not the one laid out for him by state statute. This crucial distinction—between an association’s internal process and the homeowner’s statutory rights—can mean the difference between victory and defeat. Before you act on any violation notice, you must first understand the precise rules of engagement, which may not be written in the notice itself.
If you received a violation notice today, would you know whether the appeal process in the letter is your only option, or a potential distraction from the legal first step required to truly protect your rights?
Case Participants
Petitioner Side
Rogelio A. Garcia(petitioner) Appeared on behalf of himself
Respondent Side
Nathan Tennyson(HOA attorney) Brown Olcott, PLLC
Tom Gordon(community manager) Villagio / AAMAZ Testified as witness for Villagio
Amanda Shaw(property manager/agent) AAM LLC Listed as agent for Villagio at Tempe Homeowners Association
Neutral Parties
Velva Moses-Thompson(ALJ) Office of Administrative Hearings
Judy Lowe(ADRE Commissioner) Arizona Department of Real Estate
The Administrative Law Judge denied the petition, finding that the HOA Board had the authority under the CC&Rs and related documents to remove non-Board ARC members and appoint itself to perform the functions of the ARC, thus validating its approval of the homeowner's detached garage application.
Why this result: The Petitioner failed to establish by a preponderance of the evidence that the Respondent violated CC&Rs §§ 3.2 or 7.7. The Board, having assumed the developer's rights, was authorized to remove and appoint ARC members.
Key Issues & Findings
Alleged violation of CC&Rs regarding ARC dissolution and architectural approval authority.
Petitioner alleged that the HOA Board violated CC&Rs §§ 3.2 and 7.7 by dissolving the ARC and then acting as the ARC to approve a modification (detached garage) for a homeowner.
Orders: Petitioner's petition was denied because he failed to establish that CC&Rs §§ 3.2 or 7.7 prohibited the Respondent HOA from replacing non-Board ARC members, appointing its own members to act as the ARC, or approving the detached garage application.
Administrative Law Judge Decision Briefing: Dwight vs. Whisper Mountain HOA
Executive Summary
This document summarizes the Administrative Law Judge (ALJ) decision in case number 19F-H1918027-REL, concerning a dispute between homeowner N. Wayne Dwight, Jr. (“Petitioner”) and the Whisper Mountain Homeowners Association (“Respondent”). The Petitioner alleged that the HOA Board violated the community’s Covenants, Conditions, and Restrictions (CC&Rs) by suspending the Architectural Review Committee (ARC) and subsequently approving a homeowner’s construction application.
The ALJ denied the petition in its entirety, finding that the HOA Board acted within its authority. The decision established that upon the departure of the original developer (the “Declarant”), the Board inherited the Declarant’s full rights and responsibilities, including the power to both appoint and remove members of the ARC. The Judge explicitly rejected the Petitioner’s argument that ARC members held lifetime appointments, deeming such an interpretation contrary to the democratic principles of HOA governance. Consequently, the Board’s decision to remove the non-Board ARC members and appoint itself to serve as the ARC was ruled a valid exercise of its powers, and its subsequent approval of the construction application was not a violation of the CC&Rs.
Case Overview
Entity
Petitioner
N. Wayne Dwight, Jr. (Homeowner and former ARC member)
Respondent
Whisper Mountain Homeowners Association (HOA)
Adjudicator
Administrative Law Judge Diane Mihalsky
Case Number
19F-H1918027-REL
Hearing Date
January 14, 2019
Decision Date
January 29, 2019
Core Allegation
The Petitioner alleged that the Respondent’s Board violated two sections of the CC&Rs:
1. § 7.7 (Improvements and Alterations): By approving a homeowner’s application to build a detached garage on September 19, 2018, without the approval of a properly constituted ARC.
2. § 3.2 (Appeal): By creating a situation where the body making an architectural decision (the Board acting as the ARC) is the same body that would hear an appeal of that decision, rendering the appeal process meaningless.
This was based on the Petitioner’s central claim that the Board’s action on August 6, 2018, to “dissolve” or “suspend” the ARC was a violation of the governing documents.
Key Factual Background & Timeline
• Prior to 2015: The developer, VIP Homes (“Declarant”), establishes the ARC as required by the CC&Rs.
• 2015: The Declarant turns over control of the HOA to the resident-elected Board of Directors.
• March 15, 2016: The Board adopts an ARC Charter, which explicitly states: “The right to appoint and remove all appointed [ARC] members at any time is hereby vested solely in the Board.” The Petitioner is appointed as one of three non-Board members to the ARC.
• 2017 or 2018: A proposed amendment to the CC&Rs to formally replace references to “Declarant” with “Board” or “Association” is not adopted by the general membership.
• July 17, 2018: The ARC meets to consider a detached garage application from homeowners Mark and Connie Wells. The meeting is contentious, with the Petitioner expressing doubts about the ARC’s authority to grant a variance from city setback requirements. The meeting adjourns abruptly after the applicant allegedly “verbally threatened the committee.”
• August 6, 2018: The HOA Board meets and passes a motion “to suspend the ARC committee for 60 days until guidelines/expectations are clarified.” The motion states that in the interim, the Board will review and approve all ARC submissions.
• August 24, 2018: The Board sends a letter to the non-Board ARC members, including the Petitioner, informing them of the 60-day suspension.
• September 17, 2018: The Board meets and approves a revised application from the Wells, which now aligns with City of Mesa code.
• September 19, 2018: The Board, formally acting as the ARC, reviews and approves the Wells’ revised application.
• October 22, 2018: The Petitioner files his complaint with the Arizona Department of Real Estate.
• November 19, 2018: The Board adopts a “Resolution Regarding the ARC” to clarify its position. The resolution states the Board had “(i) temporarily removed the current members of the [ARC] (via a suspension) and (ii) chose to act and serve as the current [ARC].” It also formally ratifies the approval of the Wells’ garage.
Central Arguments Presented
Petitioner’s Position (N. Wayne Dwight, Jr.)
• Limited Board Authority: The CC&Rs (§ 3.4) grant the Declarant the “sole right to appoint and remove” ARC members. After the Declarant’s departure, this section states that members “shall be appointed by the Board.” The Petitioner argued this only conferred the power to appoint, not to remove.
• Failed Amendment: The failure of the membership to amend the CC&Rs to explicitly grant the Board the Declarant’s powers proves that the Board does not possess the power of removal.
• Lifetime Appointments: The Petitioner argued that once appointed, ARC members could only be removed for specific cause (e.g., moving out of the community, incapacitation) and were otherwise entitled to serve for life.
• Improper ARC Suspension: The Board’s action to suspend the committee was a violation of the CC&Rs, as the Board lacked the authority to do so.
• Invalid Approval: Because the ARC was improperly suspended, the Board’s subsequent approval of the Wells’ application violated § 7.7, which requires ARC approval for all alterations.
• Meaningless Appeals: If the Board can act as the ARC, the appeal process outlined in § 3.2, which allows a homeowner to appeal an ARC decision to the Board, becomes an “exercise in futility.”
Respondent’s Position (Whisper Mountain HOA)
• Inherited Powers: Upon the Declarant’s departure, the Board assumed all of its rights and responsibilities under the CC&Rs, including the power to both appoint and remove ARC members.
• Authority from ARC Charter: The ARC Charter, adopted in 2016, explicitly grants the Board the sole right to remove ARC members at any time.
• Intent of the Board: The Board’s intent was not to abolish the ARC, but to address concerns about the committee’s conduct, including its “way of questioning applicants” and a need for more civility, fairness, and consistency.
• Clarification of “Suspension”: The use of the word “suspend” in communications by the management company (Mariposa Group) was “unfortunate and inaccurate.” The Board’s true action, clarified in its November 19 resolution, was to remove the non-Board members and appoint its own members to serve as the ARC.
• Valid Approval: The Board was legitimately acting as the ARC when it approved the Wells’ application; therefore, § 7.7 was not violated.
Administrative Law Judge’s Analysis and Conclusions
Interpretation of Governing Documents
The ALJ concluded that restrictive covenants must be construed as a whole and interpreted to give effect to the intent of the parties. The Judge found the Petitioner’s interpretation of the CC&Rs to be unpersuasive and ultimately harmful to the community.
• The Judge stated that the Petitioner’s interpretation “elevates non-elected members of ARC above elected Board members, abrogates any community control over ARC, and does not serve the underlying purposes of the CC&Rs.”
• This “unelected lifetime appointment” concept was found to be contrary to the “democratic principles underlying HOA law in Arizona.”
On the Board’s Authority
The ALJ affirmed the HOA’s authority to manage the ARC as it did.
• Assumption of Powers: The decision concludes that “When Declarant turned Respondent HOA over to its Board, the Board assumed all of Declarant’s rights and responsibilities under the CC&Rs and related documents.” This included the power to remove ARC members.
• ARC Charter: The Judge noted that the ARC Charter also “expressly provided that the Board had the power to remove as well as to appoint members of the ARC.”
• Legitimacy of Actions: The Board was found to have acted within its authority in August 2018 when it “removed the three non-Board members of the ARC and appointed itself to perform the functions of the ARC.”
On the Alleged Violations
Based on the finding that the Board acted within its authority, the ALJ concluded that no violations occurred.
• Conclusion on CC&R § 7.7 (ARC Approval): The petition failed on this point because the Board was legitimately acting as the ARC when it approved the Wells’ application in September 2018.
• Conclusion on CC&R § 3.2 (Appeals): The petition failed on this point because the CC&Rs do not prohibit Board members from acting as the ARC. While acknowledging that appealing a decision to the same body “may be an exercise in futility,” the Judge noted that under the CC&Rs, the Board is not required to hear appeals in any event.
Final Order and Implications
Order: The petition filed by N. Wayne Dwight, Jr. was denied. The Judge found he had not established that the HOA violated CC&Rs §§ 3.2 or 7.7.
Implications: This decision establishes a strong precedent for interpreting HOA governing documents in a manner that favors functional, democratic governance over literal interpretations that could lead to impractical or absurd outcomes. It affirms that an HOA Board generally inherits the full operational powers of the original developer unless explicitly restricted, and that a Board can act to reform or reconstitute committees to ensure they serve the community’s best interests.
Study Guide – 19F-H1918027-REL
Study Guide: Dwight v. Whisper Mountain Homeowners Association
This study guide provides a comprehensive review of the Administrative Law Judge Decision in the case of N. Wayne Dwight, Jr. vs. Whisper Mountain Homeowners Association (No. 19F-H1918027-REL). It includes a quiz to test factual recall, essay questions for deeper analysis, and a glossary of key terms as defined within the context of the legal document.
Short-Answer Quiz
Answer each of the following questions in two to three sentences, drawing exclusively from the provided source document.
1. What were the two specific allegations made by the Petitioner, N. Wayne Dwight, Jr., in his petition filed on October 22, 2018?
2. Identify the key parties in this case and describe their respective roles or relationships to the dispute.
3. What was the purpose and outcome of the ARC meeting held on July 17, 2018, regarding the Wells’ property?
4. Explain the actions taken by the Respondent’s Board of Directors during its meeting on August 6, 2018, regarding the Architectural Review Committee (ARC).
5. What was the Petitioner’s interpretation of CC&R § 3.4 regarding the removal of ARC members, and what was the potential consequence of this interpretation as noted by the Administrative Law Judge?
6. According to the Respondent’s Board president, Greg Robert Wingert, what were the primary reasons for removing the non-Board members of the ARC?
7. Describe the role of the Mariposa Group LLC in this case and explain how its communications created confusion.
8. How did the Board clarify its actions and ratify its decisions in the November 19, 2018 Resolution?
9. What is the legal standard of proof the Petitioner was required to meet, and how is it defined in the case documents?
10. What was the final ruling of the Administrative Law Judge, and what was the core reasoning behind the decision regarding CC&Rs §§ 3.2 and 7.7?
——————————————————————————–
Answer Key
1. The Petitioner alleged that the Respondent’s Board violated Covenants, Conditions, and Restrictions (CC&Rs) §§ 3.2 and 7.7. The specific violations cited were the dissolution or suspension of the Architectural Review Committee (ARC) on August 6, 2018, and the subsequent approval of an application from two members to build a detached garage on September 19, 2018.
2. The key parties are N. Wayne Dwight, Jr. (the “Petitioner”), a property owner and former ARC member, and the Whisper Mountain Homeowners Association (the “Respondent”). The case also involves Greg Robert Wingert, the President of the Respondent’s Board, and Mark and Connie Wells, the homeowners who applied to build a detached garage. The dispute centers on the Respondent’s authority over the ARC, of which the Petitioner was a member.
3. The purpose of the July 17, 2018, meeting was for the ARC, including the Petitioner, to consider Mark and Connie Wells’ application for a detached garage. The meeting was abruptly adjourned after the applicant allegedly threatened the committee, and no formal vote was conducted at that time. However, a letter dated July 30, 2018, later informed the Wells that the ARC had approved their request.
4. At the August 6, 2018, meeting, the Board of Directors discussed the need for more consistency and guidelines for the ARC. Citing these reasons and safety concerns from a prior meeting, the Board passed a motion to “suspend the ARC committee for 60 days” and announced that in the interim, the Board itself would review and approve all ARC submissions.
5. The Petitioner argued that CC&R § 3.4 only allowed the Board to appoint, not remove, ARC members. He contended that once appointed, members could only be removed for cause and were otherwise entitled to serve for life. The Judge noted this interpretation would elevate unelected ARC members above the elected Board and abrogate community control.
6. Greg Robert Wingert testified that the Board removed the non-Board ARC members due to concerns about the “manner in which questioning was done in a public forum.” The Board’s intent was not to eliminate the ARC, but to continue the review process while making it more civil, fair, consistent, and transparent.
7. The Mariposa Group LLC was the Respondent’s management company. Its employees, such as Ed Ericksen, were responsible for drafting official communications like minutes and letters. These communications used inaccurate words like “suspend” and “dissolve” to describe the Board’s actions regarding the ARC, which Mr. Wingert testified was an “unfortunate and inaccurate” choice of words that did not reflect the Board’s true intent.
8. The November 19, 2018, Resolution clarified that the Board had removed the existing ARC members and appointed itself to act and serve as the ARC, as was its right under CC&R § 3.4. The resolution explicitly stated that the Board members were the current members of the ARC and ratified all prior architectural decisions made by the Board while serving in this capacity, including the approval of the garage on Lot 18.
9. The Petitioner was required to prove his case by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that a contention is more probably true than not, representing the greater weight of evidence that is sufficient to incline a fair and impartial mind to one side of the issue.
10. The Administrative Law Judge denied the Petitioner’s petition. The Judge concluded that the Board acted within its authority when it removed the non-Board ARC members and appointed itself to perform ARC functions, meaning it did not violate CC&R § 7.7 by approving the Wells’ application. The Judge also found no violation of CC&R § 3.2, noting that the CC&Rs do not prohibit Board members from acting as the ARC.
——————————————————————————–
Essay Questions
The following questions are designed for longer-form analysis. Formulate a comprehensive response based solely on the facts and legal interpretations presented in the source document.
1. Analyze the Administrative Law Judge’s interpretation of the CC&Rs, particularly § 3.4. How does this interpretation address the transfer of power from the “Declarant” to the Board, and how does it counter the Petitioner’s argument for lifetime appointments?
2. Discuss the concept of an “appeal” as outlined in CC&R § 3.2. Evaluate the potential conflict of interest and the issue of futility raised when the Board of Directors also serves as the Architectural Review Committee.
3. Trace the timeline of events surrounding the Wells’ application for a detached garage. How did this specific application serve as the catalyst for the broader conflict between the Petitioner and the Respondent’s Board?
4. Examine the role of communication and language in this dispute. How did the specific wording used by the management company in official documents (e.g., “suspend”) differ from the Board’s stated intent, and how did this discrepancy fuel the conflict?
5. Based on the evidence presented, evaluate the argument that the Board’s actions were a necessary measure to ensure a “civil, fair, consistent, and transparent” architectural review process versus the argument that the Board overstepped its authority as defined by the CC&Rs.
——————————————————————————–
Glossary of Key Terms
Definition within the Source Context
Administrative Law Judge (ALJ)
An independent judicial officer (Diane Mihalsky) from the Office of Administrative Hearings tasked with conducting an evidentiary hearing and rendering a decision on the petition.
Architectural Review Committee (ARC)
A committee established to review and approve or deny any improvements, alterations, or other work that alters the exterior appearance of a property. Per the CC&Rs, its decisions are final unless appealed to the Board.
ARC Charter
A document adopted by the Respondent’s Board on March 15, 2016, which provided that the ARC would consist of up to four members appointed by the Board and that the Board vested itself with the sole right to appoint and remove all appointed ARC members at any time.
Board of Directors (Board)
The elected body that conducts the affairs of the Whisper Mountain Homeowners Association. The document presumes they are elected by members to specific terms.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing documents for the Whisper Mountain planned community, recorded on September 7, 2016. They outline the rules for property use, the structure of the HOA, and the functions of bodies like the ARC.
Declarant
The original developer who built the planned community, identified as VIP Homes. The Declarant initially held the sole right to appoint and remove ARC members, a right that transferred to the Board after the developer was no longer involved.
Mariposa Group LLC
The management company employed by the Respondent HOA. Its employees, such as Douglas Egan and Ed Ericksen, were responsible for drafting official communications like meeting minutes and approval letters.
Office of Administrative Hearings (OAH)
An independent state agency to which the Department of Real Estate referred the petition for an evidentiary hearing.
Petitioner
N. Wayne Dwight, Jr., a property owner in the Whisper Mountain development and a former member of the ARC. He filed the petition alleging the HOA violated its CC&Rs.
Preponderance of the Evidence
The standard of proof required for the Petitioner to win the case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
Respondent
The Whisper Mountain Homeowners Association (“HOA”), the governing body for the development. The Respondent was represented by its Board and legal counsel.
Blog Post – 19F-H1918027-REL
Select all sources
685758.pdf
No emoji found
Loading
19F-H1918027-REL
1 source
The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between a homeowner, N. Wayne Dwight, Jr. (Petitioner), and the Whisper Mountain Homeowners Association (Respondent). The Petitioner alleged that the HOA’s Board violated the community’s Covenants, Conditions, and Restrictions (CC&Rs) by dissolving or suspending the Architectural Review Committee (ARC) and subsequently approving an application for a detached garage. The decision details the background, evidence presented at the hearing, and the Administrative Law Judge’s (ALJ) findings and conclusions of law. Ultimately, the ALJ denied the petition, finding that the Board acted within its authority under the governing documents to remove non-Board ARC members and appoint itself to fulfill the ARC’s functions. The ALJ concluded that the Petitioner failed to prove the HOA violated the specified CC&Rs.
Based on 1 source
Case Participants
Petitioner Side
N. Wayne Dwight, Jr.(petitioner) Appeared on his own behalf; former ARC member; testified on his own behalf
Respondent Side
Troy B. Stratman(attorney) Stratman Law Firm, PLC Represented Whisper Mountain Homeowners Association
Greg Robert Wingert(board member/witness) Whisper Mountain Homeowners Association Board President; Chairman of the ARC; testified for Respondent
Pam Cohen(board member) Whisper Mountain Homeowners Association Seconded motions; identified as 'Pam' in meeting minutes
Ronna(board member) Whisper Mountain Homeowners Association Made motion to suspend ARC
Gary(board member) Whisper Mountain Homeowners Association
Douglas Egan(property manager) Mariposa Group LLC Sent approval letter for garage application
Ed Ericksen(property manager) Mariposa Community Manager; sent approval/clarification letters regarding Wells' request
Neutral Parties
Diane Mihalsky(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
Felicia Del Sol(staff) Transmitted decision
Other Participants
Mark Wells(owner/applicant) Whisper Mountain development Submitted application for detached garage (Lot 18)
Connie Wells(owner/applicant) Whisper Mountain development Submitted application for detached garage (Lot 18)
Phil Hoyt(owner/member) Whisper Mountain development (Lot 16)
Andy Horn(owner/member) Whisper Mountain development (Lot 1)
Jason Komorowski(owner/member) Whisper Mountain development (Lot 51)
Connie Harrison(neighbor) Whisper Mountain development Mentioned regarding Lot 18 variance condition
Don Berry(owner/member) Whisper Mountain development (Lot 45)
The Administrative Law Judge denied the petition, finding that the HOA Board had the authority under the CC&Rs and related documents to remove non-Board ARC members and appoint itself to perform the functions of the ARC, thus validating its approval of the homeowner's detached garage application.
Why this result: The Petitioner failed to establish by a preponderance of the evidence that the Respondent violated CC&Rs §§ 3.2 or 7.7. The Board, having assumed the developer's rights, was authorized to remove and appoint ARC members.
Key Issues & Findings
Alleged violation of CC&Rs regarding ARC dissolution and architectural approval authority.
Petitioner alleged that the HOA Board violated CC&Rs §§ 3.2 and 7.7 by dissolving the ARC and then acting as the ARC to approve a modification (detached garage) for a homeowner.
Orders: Petitioner's petition was denied because he failed to establish that CC&Rs §§ 3.2 or 7.7 prohibited the Respondent HOA from replacing non-Board ARC members, appointing its own members to act as the ARC, or approving the detached garage application.
Administrative Law Judge Decision Briefing: Dwight vs. Whisper Mountain HOA
Executive Summary
This document summarizes the Administrative Law Judge (ALJ) decision in case number 19F-H1918027-REL, concerning a dispute between homeowner N. Wayne Dwight, Jr. (“Petitioner”) and the Whisper Mountain Homeowners Association (“Respondent”). The Petitioner alleged that the HOA Board violated the community’s Covenants, Conditions, and Restrictions (CC&Rs) by suspending the Architectural Review Committee (ARC) and subsequently approving a homeowner’s construction application.
The ALJ denied the petition in its entirety, finding that the HOA Board acted within its authority. The decision established that upon the departure of the original developer (the “Declarant”), the Board inherited the Declarant’s full rights and responsibilities, including the power to both appoint and remove members of the ARC. The Judge explicitly rejected the Petitioner’s argument that ARC members held lifetime appointments, deeming such an interpretation contrary to the democratic principles of HOA governance. Consequently, the Board’s decision to remove the non-Board ARC members and appoint itself to serve as the ARC was ruled a valid exercise of its powers, and its subsequent approval of the construction application was not a violation of the CC&Rs.
Case Overview
Entity
Petitioner
N. Wayne Dwight, Jr. (Homeowner and former ARC member)
Respondent
Whisper Mountain Homeowners Association (HOA)
Adjudicator
Administrative Law Judge Diane Mihalsky
Case Number
19F-H1918027-REL
Hearing Date
January 14, 2019
Decision Date
January 29, 2019
Core Allegation
The Petitioner alleged that the Respondent’s Board violated two sections of the CC&Rs:
1. § 7.7 (Improvements and Alterations): By approving a homeowner’s application to build a detached garage on September 19, 2018, without the approval of a properly constituted ARC.
2. § 3.2 (Appeal): By creating a situation where the body making an architectural decision (the Board acting as the ARC) is the same body that would hear an appeal of that decision, rendering the appeal process meaningless.
This was based on the Petitioner’s central claim that the Board’s action on August 6, 2018, to “dissolve” or “suspend” the ARC was a violation of the governing documents.
Key Factual Background & Timeline
• Prior to 2015: The developer, VIP Homes (“Declarant”), establishes the ARC as required by the CC&Rs.
• 2015: The Declarant turns over control of the HOA to the resident-elected Board of Directors.
• March 15, 2016: The Board adopts an ARC Charter, which explicitly states: “The right to appoint and remove all appointed [ARC] members at any time is hereby vested solely in the Board.” The Petitioner is appointed as one of three non-Board members to the ARC.
• 2017 or 2018: A proposed amendment to the CC&Rs to formally replace references to “Declarant” with “Board” or “Association” is not adopted by the general membership.
• July 17, 2018: The ARC meets to consider a detached garage application from homeowners Mark and Connie Wells. The meeting is contentious, with the Petitioner expressing doubts about the ARC’s authority to grant a variance from city setback requirements. The meeting adjourns abruptly after the applicant allegedly “verbally threatened the committee.”
• August 6, 2018: The HOA Board meets and passes a motion “to suspend the ARC committee for 60 days until guidelines/expectations are clarified.” The motion states that in the interim, the Board will review and approve all ARC submissions.
• August 24, 2018: The Board sends a letter to the non-Board ARC members, including the Petitioner, informing them of the 60-day suspension.
• September 17, 2018: The Board meets and approves a revised application from the Wells, which now aligns with City of Mesa code.
• September 19, 2018: The Board, formally acting as the ARC, reviews and approves the Wells’ revised application.
• October 22, 2018: The Petitioner files his complaint with the Arizona Department of Real Estate.
• November 19, 2018: The Board adopts a “Resolution Regarding the ARC” to clarify its position. The resolution states the Board had “(i) temporarily removed the current members of the [ARC] (via a suspension) and (ii) chose to act and serve as the current [ARC].” It also formally ratifies the approval of the Wells’ garage.
Central Arguments Presented
Petitioner’s Position (N. Wayne Dwight, Jr.)
• Limited Board Authority: The CC&Rs (§ 3.4) grant the Declarant the “sole right to appoint and remove” ARC members. After the Declarant’s departure, this section states that members “shall be appointed by the Board.” The Petitioner argued this only conferred the power to appoint, not to remove.
• Failed Amendment: The failure of the membership to amend the CC&Rs to explicitly grant the Board the Declarant’s powers proves that the Board does not possess the power of removal.
• Lifetime Appointments: The Petitioner argued that once appointed, ARC members could only be removed for specific cause (e.g., moving out of the community, incapacitation) and were otherwise entitled to serve for life.
• Improper ARC Suspension: The Board’s action to suspend the committee was a violation of the CC&Rs, as the Board lacked the authority to do so.
• Invalid Approval: Because the ARC was improperly suspended, the Board’s subsequent approval of the Wells’ application violated § 7.7, which requires ARC approval for all alterations.
• Meaningless Appeals: If the Board can act as the ARC, the appeal process outlined in § 3.2, which allows a homeowner to appeal an ARC decision to the Board, becomes an “exercise in futility.”
Respondent’s Position (Whisper Mountain HOA)
• Inherited Powers: Upon the Declarant’s departure, the Board assumed all of its rights and responsibilities under the CC&Rs, including the power to both appoint and remove ARC members.
• Authority from ARC Charter: The ARC Charter, adopted in 2016, explicitly grants the Board the sole right to remove ARC members at any time.
• Intent of the Board: The Board’s intent was not to abolish the ARC, but to address concerns about the committee’s conduct, including its “way of questioning applicants” and a need for more civility, fairness, and consistency.
• Clarification of “Suspension”: The use of the word “suspend” in communications by the management company (Mariposa Group) was “unfortunate and inaccurate.” The Board’s true action, clarified in its November 19 resolution, was to remove the non-Board members and appoint its own members to serve as the ARC.
• Valid Approval: The Board was legitimately acting as the ARC when it approved the Wells’ application; therefore, § 7.7 was not violated.
Administrative Law Judge’s Analysis and Conclusions
Interpretation of Governing Documents
The ALJ concluded that restrictive covenants must be construed as a whole and interpreted to give effect to the intent of the parties. The Judge found the Petitioner’s interpretation of the CC&Rs to be unpersuasive and ultimately harmful to the community.
• The Judge stated that the Petitioner’s interpretation “elevates non-elected members of ARC above elected Board members, abrogates any community control over ARC, and does not serve the underlying purposes of the CC&Rs.”
• This “unelected lifetime appointment” concept was found to be contrary to the “democratic principles underlying HOA law in Arizona.”
On the Board’s Authority
The ALJ affirmed the HOA’s authority to manage the ARC as it did.
• Assumption of Powers: The decision concludes that “When Declarant turned Respondent HOA over to its Board, the Board assumed all of Declarant’s rights and responsibilities under the CC&Rs and related documents.” This included the power to remove ARC members.
• ARC Charter: The Judge noted that the ARC Charter also “expressly provided that the Board had the power to remove as well as to appoint members of the ARC.”
• Legitimacy of Actions: The Board was found to have acted within its authority in August 2018 when it “removed the three non-Board members of the ARC and appointed itself to perform the functions of the ARC.”
On the Alleged Violations
Based on the finding that the Board acted within its authority, the ALJ concluded that no violations occurred.
• Conclusion on CC&R § 7.7 (ARC Approval): The petition failed on this point because the Board was legitimately acting as the ARC when it approved the Wells’ application in September 2018.
• Conclusion on CC&R § 3.2 (Appeals): The petition failed on this point because the CC&Rs do not prohibit Board members from acting as the ARC. While acknowledging that appealing a decision to the same body “may be an exercise in futility,” the Judge noted that under the CC&Rs, the Board is not required to hear appeals in any event.
Final Order and Implications
Order: The petition filed by N. Wayne Dwight, Jr. was denied. The Judge found he had not established that the HOA violated CC&Rs §§ 3.2 or 7.7.
Implications: This decision establishes a strong precedent for interpreting HOA governing documents in a manner that favors functional, democratic governance over literal interpretations that could lead to impractical or absurd outcomes. It affirms that an HOA Board generally inherits the full operational powers of the original developer unless explicitly restricted, and that a Board can act to reform or reconstitute committees to ensure they serve the community’s best interests.
Study Guide – 19F-H1918027-REL
Study Guide: Dwight v. Whisper Mountain Homeowners Association
This study guide provides a comprehensive review of the Administrative Law Judge Decision in the case of N. Wayne Dwight, Jr. vs. Whisper Mountain Homeowners Association (No. 19F-H1918027-REL). It includes a quiz to test factual recall, essay questions for deeper analysis, and a glossary of key terms as defined within the context of the legal document.
Short-Answer Quiz
Answer each of the following questions in two to three sentences, drawing exclusively from the provided source document.
1. What were the two specific allegations made by the Petitioner, N. Wayne Dwight, Jr., in his petition filed on October 22, 2018?
2. Identify the key parties in this case and describe their respective roles or relationships to the dispute.
3. What was the purpose and outcome of the ARC meeting held on July 17, 2018, regarding the Wells’ property?
4. Explain the actions taken by the Respondent’s Board of Directors during its meeting on August 6, 2018, regarding the Architectural Review Committee (ARC).
5. What was the Petitioner’s interpretation of CC&R § 3.4 regarding the removal of ARC members, and what was the potential consequence of this interpretation as noted by the Administrative Law Judge?
6. According to the Respondent’s Board president, Greg Robert Wingert, what were the primary reasons for removing the non-Board members of the ARC?
7. Describe the role of the Mariposa Group LLC in this case and explain how its communications created confusion.
8. How did the Board clarify its actions and ratify its decisions in the November 19, 2018 Resolution?
9. What is the legal standard of proof the Petitioner was required to meet, and how is it defined in the case documents?
10. What was the final ruling of the Administrative Law Judge, and what was the core reasoning behind the decision regarding CC&Rs §§ 3.2 and 7.7?
——————————————————————————–
Answer Key
1. The Petitioner alleged that the Respondent’s Board violated Covenants, Conditions, and Restrictions (CC&Rs) §§ 3.2 and 7.7. The specific violations cited were the dissolution or suspension of the Architectural Review Committee (ARC) on August 6, 2018, and the subsequent approval of an application from two members to build a detached garage on September 19, 2018.
2. The key parties are N. Wayne Dwight, Jr. (the “Petitioner”), a property owner and former ARC member, and the Whisper Mountain Homeowners Association (the “Respondent”). The case also involves Greg Robert Wingert, the President of the Respondent’s Board, and Mark and Connie Wells, the homeowners who applied to build a detached garage. The dispute centers on the Respondent’s authority over the ARC, of which the Petitioner was a member.
3. The purpose of the July 17, 2018, meeting was for the ARC, including the Petitioner, to consider Mark and Connie Wells’ application for a detached garage. The meeting was abruptly adjourned after the applicant allegedly threatened the committee, and no formal vote was conducted at that time. However, a letter dated July 30, 2018, later informed the Wells that the ARC had approved their request.
4. At the August 6, 2018, meeting, the Board of Directors discussed the need for more consistency and guidelines for the ARC. Citing these reasons and safety concerns from a prior meeting, the Board passed a motion to “suspend the ARC committee for 60 days” and announced that in the interim, the Board itself would review and approve all ARC submissions.
5. The Petitioner argued that CC&R § 3.4 only allowed the Board to appoint, not remove, ARC members. He contended that once appointed, members could only be removed for cause and were otherwise entitled to serve for life. The Judge noted this interpretation would elevate unelected ARC members above the elected Board and abrogate community control.
6. Greg Robert Wingert testified that the Board removed the non-Board ARC members due to concerns about the “manner in which questioning was done in a public forum.” The Board’s intent was not to eliminate the ARC, but to continue the review process while making it more civil, fair, consistent, and transparent.
7. The Mariposa Group LLC was the Respondent’s management company. Its employees, such as Ed Ericksen, were responsible for drafting official communications like minutes and letters. These communications used inaccurate words like “suspend” and “dissolve” to describe the Board’s actions regarding the ARC, which Mr. Wingert testified was an “unfortunate and inaccurate” choice of words that did not reflect the Board’s true intent.
8. The November 19, 2018, Resolution clarified that the Board had removed the existing ARC members and appointed itself to act and serve as the ARC, as was its right under CC&R § 3.4. The resolution explicitly stated that the Board members were the current members of the ARC and ratified all prior architectural decisions made by the Board while serving in this capacity, including the approval of the garage on Lot 18.
9. The Petitioner was required to prove his case by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that a contention is more probably true than not, representing the greater weight of evidence that is sufficient to incline a fair and impartial mind to one side of the issue.
10. The Administrative Law Judge denied the Petitioner’s petition. The Judge concluded that the Board acted within its authority when it removed the non-Board ARC members and appointed itself to perform ARC functions, meaning it did not violate CC&R § 7.7 by approving the Wells’ application. The Judge also found no violation of CC&R § 3.2, noting that the CC&Rs do not prohibit Board members from acting as the ARC.
——————————————————————————–
Essay Questions
The following questions are designed for longer-form analysis. Formulate a comprehensive response based solely on the facts and legal interpretations presented in the source document.
1. Analyze the Administrative Law Judge’s interpretation of the CC&Rs, particularly § 3.4. How does this interpretation address the transfer of power from the “Declarant” to the Board, and how does it counter the Petitioner’s argument for lifetime appointments?
2. Discuss the concept of an “appeal” as outlined in CC&R § 3.2. Evaluate the potential conflict of interest and the issue of futility raised when the Board of Directors also serves as the Architectural Review Committee.
3. Trace the timeline of events surrounding the Wells’ application for a detached garage. How did this specific application serve as the catalyst for the broader conflict between the Petitioner and the Respondent’s Board?
4. Examine the role of communication and language in this dispute. How did the specific wording used by the management company in official documents (e.g., “suspend”) differ from the Board’s stated intent, and how did this discrepancy fuel the conflict?
5. Based on the evidence presented, evaluate the argument that the Board’s actions were a necessary measure to ensure a “civil, fair, consistent, and transparent” architectural review process versus the argument that the Board overstepped its authority as defined by the CC&Rs.
——————————————————————————–
Glossary of Key Terms
Definition within the Source Context
Administrative Law Judge (ALJ)
An independent judicial officer (Diane Mihalsky) from the Office of Administrative Hearings tasked with conducting an evidentiary hearing and rendering a decision on the petition.
Architectural Review Committee (ARC)
A committee established to review and approve or deny any improvements, alterations, or other work that alters the exterior appearance of a property. Per the CC&Rs, its decisions are final unless appealed to the Board.
ARC Charter
A document adopted by the Respondent’s Board on March 15, 2016, which provided that the ARC would consist of up to four members appointed by the Board and that the Board vested itself with the sole right to appoint and remove all appointed ARC members at any time.
Board of Directors (Board)
The elected body that conducts the affairs of the Whisper Mountain Homeowners Association. The document presumes they are elected by members to specific terms.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing documents for the Whisper Mountain planned community, recorded on September 7, 2016. They outline the rules for property use, the structure of the HOA, and the functions of bodies like the ARC.
Declarant
The original developer who built the planned community, identified as VIP Homes. The Declarant initially held the sole right to appoint and remove ARC members, a right that transferred to the Board after the developer was no longer involved.
Mariposa Group LLC
The management company employed by the Respondent HOA. Its employees, such as Douglas Egan and Ed Ericksen, were responsible for drafting official communications like meeting minutes and approval letters.
Office of Administrative Hearings (OAH)
An independent state agency to which the Department of Real Estate referred the petition for an evidentiary hearing.
Petitioner
N. Wayne Dwight, Jr., a property owner in the Whisper Mountain development and a former member of the ARC. He filed the petition alleging the HOA violated its CC&Rs.
Preponderance of the Evidence
The standard of proof required for the Petitioner to win the case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
Respondent
The Whisper Mountain Homeowners Association (“HOA”), the governing body for the development. The Respondent was represented by its Board and legal counsel.
Blog Post – 19F-H1918027-REL
Select all sources
685758.pdf
No emoji found
Loading
19F-H1918027-REL
1 source
The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between a homeowner, N. Wayne Dwight, Jr. (Petitioner), and the Whisper Mountain Homeowners Association (Respondent). The Petitioner alleged that the HOA’s Board violated the community’s Covenants, Conditions, and Restrictions (CC&Rs) by dissolving or suspending the Architectural Review Committee (ARC) and subsequently approving an application for a detached garage. The decision details the background, evidence presented at the hearing, and the Administrative Law Judge’s (ALJ) findings and conclusions of law. Ultimately, the ALJ denied the petition, finding that the Board acted within its authority under the governing documents to remove non-Board ARC members and appoint itself to fulfill the ARC’s functions. The ALJ concluded that the Petitioner failed to prove the HOA violated the specified CC&Rs.
Based on 1 source
Case Participants
Petitioner Side
N. Wayne Dwight, Jr.(petitioner) Appeared on his own behalf; former ARC member; testified on his own behalf
Respondent Side
Troy B. Stratman(attorney) Stratman Law Firm, PLC Represented Whisper Mountain Homeowners Association
Greg Robert Wingert(board member/witness) Whisper Mountain Homeowners Association Board President; Chairman of the ARC; testified for Respondent
Pam Cohen(board member) Whisper Mountain Homeowners Association Seconded motions; identified as 'Pam' in meeting minutes
Ronna(board member) Whisper Mountain Homeowners Association Made motion to suspend ARC
Gary(board member) Whisper Mountain Homeowners Association
Douglas Egan(property manager) Mariposa Group LLC Sent approval letter for garage application
Ed Ericksen(property manager) Mariposa Community Manager; sent approval/clarification letters regarding Wells' request
Neutral Parties
Diane Mihalsky(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
Felicia Del Sol(staff) Transmitted decision
Other Participants
Mark Wells(owner/applicant) Whisper Mountain development Submitted application for detached garage (Lot 18)
Connie Wells(owner/applicant) Whisper Mountain development Submitted application for detached garage (Lot 18)
Phil Hoyt(owner/member) Whisper Mountain development (Lot 16)
Andy Horn(owner/member) Whisper Mountain development (Lot 1)
Jason Komorowski(owner/member) Whisper Mountain development (Lot 51)
Connie Harrison(neighbor) Whisper Mountain development Mentioned regarding Lot 18 variance condition
Don Berry(owner/member) Whisper Mountain development (Lot 45)
The Administrative Law Judge dismissed the petition, finding that the HOA (Respondent) did not violate CC&R Section 3.10. The CC&Rs imposed the duty of keeping the drainage area clear primarily on the Unit Owners, and the HOA only retained the right to enforce this requirement, not an explicit obligation.
Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent violated the CC&Rs because the HOA did not have an obligation to enforce clearance requirements against unit owners under the cited covenant provisions.
Key Issues & Findings
Alleged violation of CC&Rs § 3.10 by failing to require unit owners to remove vegetation and fencing materials from the stormwater channel behind their homes.
Petitioner alleged the HOA violated CC&Rs § 3.10 by failing to compel unit owners to clear vegetation and debris (including chicken wire) from the stormwater drainage channel, asserting this failure created a flood risk to unit 12. The ALJ found that the CC&Rs placed the primary maintenance responsibility on Unit Owners, and the HOA only had the right, but not the obligation, to enforce clearance requirements.
Orders: The petition was denied and dismissed. No action was required of Respondent because Petitioner failed to establish that Respondent violated the CC&Rs regarding maintenance of the drainage easement.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 32-2199.01
Title 33, Chapter 9
A.A.C. R2-19-119(A) and (B)(1)
Vazanno v. Superior Court
A.A.C. R2-19-119(B)(2)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
BLACK’S LAW DICTIONARY
Powell v. Washburn
Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.
Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.
Video Overview
Audio Overview
Decision Documents
19F-H1918010-REL Decision – 667122.pdf
Uploaded 2026-01-23T17:26:17 (50.0 KB)
19F-H1918010-REL Decision – 678371.pdf
Uploaded 2026-01-23T17:26:21 (129.5 KB)
Briefing Doc – 19F-H1918010-REL
Briefing Document: Sellers vs. Rancho Madera Condominium Association
Executive Summary
This document synthesizes the legal proceedings and outcomes of the case John A Sellers, Petitioner, vs. Rancho Madera Condominium Association, Respondent (Case No. 19F-H1918010-REL), adjudicated by the Arizona Office of Administrative Hearings. The core of the dispute was a claim by Petitioner John Sellers that his homeowner’s association (HOA) violated its Covenants, Conditions, and Restrictions (CC&Rs) by failing to compel other homeowners to remove vegetation and fencing from a common stormwater drainage channel, which he alleged created a flood risk to his property, Unit 12.
The petitioner’s claim was ultimately unsuccessful. It was denied first in an initial evidentiary hearing and again in a subsequent rehearing. The central finding of the Administrative Law Judges (ALJs) in both decisions was a critical distinction between an HOA’s right to enforce rules and an obligation to do so. The ALJs determined that the CC&Rs placed the primary responsibility for maintaining the drainage easement on the individual unit owners. The HOA’s mandatory duty to intervene was found to be triggered only by actual damage resulting from an owner’s negligence, not by the mere potential for future damage. As no flooding or damage had ever occurred, the HOA was found to have acted within its authority and had not violated the CC&Rs. The petitioner’s personal circumstances, including a contentious divorce and court-ordered sale of the property, were noted but deemed legally irrelevant to the determination of a CC&R violation.
Case Chronology and Procedural History
The case progressed through an initial petition, a hearing, a decision, a request for rehearing, and a final decision on rehearing. A notable procedural anomaly occurred when a hearing scheduled for November 5, 2018, was officially vacated due to a withdrawal notice from the petitioner, yet the hearing proceeded on that date as originally planned.
Details
Aug 23, 2018
Petition Filed
John A. Sellers filed a single-issue petition with the Arizona Department of Real Estate alleging the Rancho Madera Condominium Association violated CC&R § 3.10.
Oct 23, 2018
Hearing Vacated
An order was issued by ALJ Diane Mihalsky vacating the November 5 hearing because the petitioner had notified the Department of his wish to withdraw the petition.
Nov 5 & Dec 12, 2018
Initial Hearing
Despite the prior vacating order, an evidentiary hearing was held before ALJ Mihalsky.
Dec 26, 2018
Initial Decision
ALJ Mihalsky issued a decision finding that the petitioner failed to prove his case. The petition was denied.
Feb 1, 2019
Rehearing Requested
The petitioner filed a request for a rehearing, alleging procedural irregularities and errors in the initial decision.
Feb 22, 2019
Rehearing Granted
The Commissioner of the Department of Real Estate granted the request for a rehearing.
Apr 15, 2019
Rehearing Held
A rehearing was held before a new judge, ALJ Tammy L. Eigenheer.
May 7, 2019
Post-Hearing Filing Stricken
The petitioner submitted an unauthorized supplemental argument after the rehearing. ALJ Eigenheer issued an order striking the filing from the record and closing the record.
May 10, 2019
Final Decision on Rehearing
ALJ Eigenheer issued a final decision, again finding for the respondent and dismissing the petition.
Core Dispute Analysis
Petitioner’s Position and Allegations
• Core Allegation: The petitioner alleged that the Rancho Madera Condominium Association (Respondent) violated CC&R § 3.10 by failing to enforce its rules. Specifically, the Association did not require owners of “Drainage Easement Units” to remove obstructions—such as large succulents, cacti, shrubs, and chicken wire fencing—from a 3′ x 3′ stormwater drainage canal located behind their homes.
• Perceived Risk: The petitioner testified that these items could catch storm debris, clog the channel, and cause flooding that would damage his property, Unit 12. He submitted videos of heavy rains to support his concern.
• Evolving Legal Argument: In the rehearing, the petitioner’s argument shifted. He acknowledged that the CC&Rs gave the Association the right to enforce maintenance standards but argued that “at a certain point exercising a right becomes an obligation,” particularly when matters of safety and property values are implicated.
• Claimed Financial Damages: The petitioner testified he was undergoing a contentious divorce and his condominium was being sold by order of the Maricopa County Superior Court. He asserted that due to the unresolved flood risk, which he was obligated to disclose, the sale price of Unit 12 was “$40,000 less than it would have been.”
Respondent’s Position and Actions
• Denial of Violation: The Association denied it had violated any CC&Rs by its handling of the drainage channel.
• Evidence and Testimony: The Association, represented by its President, Jeffrey Kaplan, presented several key points:
◦ No History of Flooding: Mr. Kaplan testified that Unit 12 had never sustained any flood damage since the development was built in 2012, including during a “100-year storm” in 2014. After a significant rainstorm in August 2018, he personally inspected the easement and saw no water in it.
◦ Origin of Plants: Mr. Kaplan stated that the builder had originally planted the vegetation in the drainage easement that the petitioner was concerned about.
◦ No Other Complaints: No other members of the 46-unit Association had expressed any concerns about drainage.
◦ Proactive Communication: To assuage the petitioner’s concerns, the Association’s management company sent letters to the relevant homeowners on April 18, 2018, and July 19, 2018, reminding them of their responsibility to keep the drainage area free of obstructions.
◦ Due Diligence: Mr. Kaplan contacted officials at the Maricopa County Flood Control District and the Town of Cave Creek, who confirmed the drainage area was not on any official floodplain maps and that the Association was solely responsible for its maintenance.
Key CC&R Provisions and Legal Interpretation
The ALJs’ decisions hinged on a close reading of the Rancho Madera CC&Rs. The analysis consistently differentiated between the duties of individual owners and the duties of the Association.
• CC&R § 3.10.2 — Unit Owner Responsibility: This section places the primary maintenance burden directly on the homeowners of the Drainage Easement Units.
◦ Interpretation: The legal conclusion was that this provision unambiguously makes individual owners responsible for keeping their portion of the easement clear.
• CC&R § 3.10.4 — Association Responsibility: This section defines the specific circumstance under which the Association is required to act.
◦ Interpretation: Both ALJs found that this clause creates a reactionary, not a proactive, duty for the Association. Its obligation to repair is triggered by actual damage occurring, not by a perceived risk of future damage.
• CC&R § 13.1.1 — Association Enforcement Power: This section, highlighted in the rehearing, grants the Association authority to act.
◦ Interpretation: The ALJ in the rehearing ruled that this language grants a discretionary right, not a mandatory obligation. The CC&Rs contain no provision that converts this right into a duty under the circumstances presented by the petitioner.
Judicial Findings and Rulings
Initial Decision (ALJ Diane Mihalsky, Dec 26, 2018)
• Burden of Proof: The petitioner failed to establish his claim by a preponderance of the evidence.
• Findings of Fact: The petitioner successfully established that plants and chicken wire existed in the stormwater canal. However, he failed to establish that these items actually impeded the flow of water.
• Conclusion: The respondent proved that the drainage canal had functioned as intended since 2012 and that Unit 12 had never flooded. The petitioner’s divorce was noted to have “cast a long shadow over his administrative complaint” but was irrelevant to the legal issue. The petition was denied.
Rehearing Decision (ALJ Tammy L. Eigenheer, May 10, 2019)
• Central Legal Finding: The CC&Rs clearly intend for unit owners to bear the primary responsibility for keeping the drainage area clear. The Association’s only specified obligation is to repair damage after it has occurred and bill the responsible owner.
• Right vs. Obligation: The decision explicitly states, “While Respondent has the right to enforce the requirements that the Unit Owners keep the Drainage Easement Area clear, nothing in the CC&Rs provides that Respondent has an obligation to do so.”
• Final Order: The petitioner failed to establish that the respondent violated Section 3.10 of the CC&Rs. The petition was dismissed.
Notable Evidence
A key piece of evidence submitted by the respondent was a June 22, 2018, email from the petitioner’s wife, Debborah Sellers, which directly refuted the petitioner’s claims. In the email, she stated:
“There has never been any issue with the storm drain behind our house and it is not a major disclosure item… Stop making something out of nothing. AND I HOPE YOU AREN[’]T FREAKING POTENTIAL BUYERS AND OTHER REALTORS WITH THIS NONSENSE.”
Study Guide – 19F-H1918010-REL
Study Guide for Case No. 19F-H1918010-REL: Sellers v. Rancho Madera Condominium Association
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 sentences, drawing exclusively from the information provided in the case documents.
1. What was the specific allegation John A. Sellers made against the Rancho Madera Condominium Association in his petition filed on August 23, 2018?
2. Identify the key responsibilities assigned to individual unit owners of Drainage Easement Units according to Section 3.10.2 of the CC&Rs.
3. Who is Jeffrey Kaplan, and what key testimony did he provide on behalf of the Respondent?
4. What specific actions did the Respondent’s management company take in April and July of 2018 to address the Petitioner’s concerns?
5. According to the decision by Administrative Law Judge Diane Mihalsky, what did the Petitioner fail to establish regarding the plants and chicken wire in the drainage canal?
6. On what grounds did John A. Sellers file his Homeowner’s Association (HOA) Dispute Rehearing Request on February 1, 2019?
7. What was the Petitioner’s core argument regarding the Association’s “right to enforce” the CC&Rs versus an “obligation to enforce” them?
8. What was the final conclusion of Administrative Law Judge Tammy L. Eigenheer regarding the Association’s responsibilities under the CC&Rs?
9. What occurred after the April 15, 2019 rehearing when the Petitioner attempted to submit supplemental information to the Office of Administrative Hearings?
10. Describe the evidence presented in an email from Debborah Sellers and its relevance to the case.
——————————————————————————–
Answer Key
1. John A. Sellers alleged that the Rancho Madera Condominium Association violated Section 3.10 of its Covenants, Conditions, and Restrictions (CC&Rs). He claimed the Association failed to require condominium owners to remove vegetation and fencing materials from the stormwater channel, creating a flood risk for his unit.
2. Section 3.10.2 of the CC&Rs requires each Unit Owner of a Drainage Easement Unit to keep their respective Drainage Easement Area free of weeds and other debris. The purpose is to ensure that stormwater can flow freely and that no improvement, including plant materials, impedes this flow.
3. Jeffrey Kaplan is the President of the Rancho Madera Condominium Association. He testified that the drainage easement had never failed, even during a 100-year storm in 2014, that the original builder had planted the vegetation in question, and that he had consulted with county and town officials about the drainage area.
4. To address the Petitioner’s concerns, the Respondent’s management company sent letters to the owners of the Drainage Easement Units. Letters sent on April 18, 2018, and July 19, 2018, reminded owners of their responsibility to keep the drainage area free of obstructions, weeds, and debris.
5. Judge Mihalsky’s decision on December 26, 2018, concluded that the Petitioner established the presence of plants and chicken wire but failed to establish that these items actually impede the flow of water. The judge found that the drainage system functions as intended and there was no unreasonable risk of flooding.
6. The Petitioner filed for a rehearing based on several alleged issues with the original proceeding. These included an irregularity in the proceedings, the existence of newly discovered evidence, errors in the admission or rejection of evidence, and a belief that the findings of fact or decision were arbitrary, capricious, or not supported by evidence.
7. The Petitioner argued that while the CC&Rs grant the Association the “right to enforce” maintenance requirements, this right becomes an “obligation” when issues of property values and safety are at stake. He maintained that the potential for flooding created such an obligation for the Association to act.
8. Judge Eigenheer concluded that the CC&Rs intend for unit owners to bear the responsibility of keeping the Drainage Easement Area clear. She determined that while the Association has the right to enforce this, nothing in the CC&Rs creates an obligation for it to do so, and its only specified responsibility is to repair damage after it occurs, billing the responsible unit owner.
9. After the rehearing, the Petitioner submitted supplemental authority and argument without having requested leave to do so. The Respondent’s counsel argued this filing was untimely and introduced new arguments, requesting it be struck. On May 7, 2019, Judge Eigenheer ordered the filing struck from the record and closed the record.
10. The Respondent submitted a June 22, 2018 email from Debborah Sellers, the Petitioner’s wife. In the email, she stated there had never been an issue with the storm drain, called his concerns “nonsense,” and noted that the developer had done a good job, undermining the Petitioner’s claim of a significant and obvious flood risk.
——————————————————————————–
Suggested Essay Questions
1. Analyze the legal reasoning used by Administrative Law Judge Tammy L. Eigenheer to dismiss the petition after the rehearing. Contrast her interpretation of the Association’s duties under the CC&Rs with the findings presented by Judge Diane Mihalsky in the initial decision.
2. Discuss the concept of “preponderance of the evidence” as defined in the legal documents. Evaluate the evidence presented by both the Petitioner and the Respondent, explaining why the Petitioner ultimately failed to meet this burden of proof in both hearings.
3. Trace the complete procedural history of case No. 19F-H1918010-REL. Identify and explain the significance of key events, including the initial petition, the vacated hearing, the first Administrative Law Judge Decision, the request for rehearing, and the final order dismissing the case.
4. Examine the role and responsibilities of the Rancho Madera Condominium Association versus the individual unit owners as defined by Sections 3.10, 3.10.2, 3.10.4, and 13.1.1 of the CC&Rs. How did the interpretation of these sections form the basis of the final legal decision?
5. Evaluate the different types of evidence presented in the hearings, including witness testimony (Sellers, Kaplan), documentary evidence (CC&Rs, letters, emails), and physical evidence (photographs, videos). How did each type of evidence contribute to the final outcome of the case?
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings, takes evidence, and makes legal decisions and orders. In this case, Diane Mihalsky and Tammy L. Eigenheer served as ALJs.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing legal documents that set up the guidelines for a planned community or condominium association. In this case, the CC&Rs for Rancho Madera were the central document in the dispute.
Drainage Easement
A perpetual, non-exclusive legal right created over a specific portion of property (the eastern five feet of Units 9-18) for constructing and maintaining a stormwater drainage channel.
Drainage Easement Area
The specific portion of land encumbered by the Drainage Easement, defined as the eastern five feet of the designated units.
Drainage Improvements
The physical components of the drainage system, such as the channel, decomposed granite, rip rap (large stones), or concrete, as originally constructed by the developer.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona responsible for conducting evidentiary hearings for other state agencies, such as the Department of Real Estate.
Petitioner
The party who initiates a legal action or files a petition seeking a legal remedy. In this case, John A. Sellers.
Preponderance of the Evidence
The standard of proof in this civil administrative case. It is defined as evidence that is sufficient to incline a fair and impartial mind to one side of an issue rather than the other, making a contention more probably true than not.
Rehearing
A second hearing of a case, granted by the Commissioner in this instance, to re-examine the issues based on claims such as procedural irregularities, newly discovered evidence, or errors in the original decision.
Respondent
The party against whom a petition is filed; the party who must respond to the petitioner’s claims. In this case, the Rancho Madera Condominium Association.
The Department
Refers to the Arizona Department of Real Estate, the state agency authorized to receive and decide on petitions for hearings from members of condominium unit owners’ associations.
Blog Post – 19F-H1918010-REL
I Read an Entire HOA Lawsuit. Here Are 4 Shocking Lessons About Power, Rules, and Reality.
The Anatomy of a Neighborhood War
Living under a Homeowner’s Association (HOA) often means navigating a complex world of rules, regulations, and neighborhood politics. For most, disagreements are minor annoyances. But sometimes, a seemingly small issue can escalate into a full-blown legal war.
This is the story of one homeowner’s single-minded crusade against his HOA over a stormwater drainage channel he believed was a serious flooding risk. After filing a formal petition, the dispute escalated into a multi-stage legal battle that spanned nearly a year. The official court documents reveal that even after a judge ruled decisively against him, the homeowner doubled down, demanding a rare rehearing.
A deep dive into this protracted case reveals a fascinating and cautionary tale. The legal reasoning that ultimately settled the matter highlights several surprising lessons that apply to anyone living in a planned community.
1. Proving a Rule Was Broken Isn’t the Same as Proving Harm
The initial hearing, held before Administrative Law Judge Diane Mihalsky in late 2018, centered on a seemingly straightforward argument from the petitioner, John Sellers. He pointed out that his neighbors had placed plants—including large succulents, shrubs, and cacti—as well as chicken wire in a stormwater drainage channel. This, he argued, was a clear violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs), which stated that no improvement “shall be constructed, installed or allowed to grow… that may… impede the flow of water.”
But in her December 26, 2018 decision, the judge ruled against him. While Sellers successfully proved the obstructions existed, he failed to meet the legal burden of proof that they actually “impede the flow of water.” His claim was defeated by testimony from the HOA President, Jeffrey Kaplan, who stated that the unit had never sustained any flood damage, not even during a “100-year storm in 2014.”
The lesson from this first round is stark: in this legal context, simply pointing out a technical rule break was not enough. The petitioner had to prove that the violation was causing a tangible, negative impact. Without evidence of actual harm or impeded water flow, the theoretical risk was insufficient to win the case.
2. An HOA’s “Right” to Enforce Is Not an “Obligation”
After losing the first round on a question of evidence, Sellers’ argument evolved. He requested a rehearing, which was granted, and the case landed before a new judge, Tammy L. Eigenheer, in the spring of 2019. This shifted the legal focus from physical proof of impeded water flow to a more fundamental question of the HOA’s duties.
Sellers argued that because safety and property values were at stake, the association had a duty to enforce the CC&Rs and compel his neighbors to clear the drainage channel. He contended that at a certain point, an organization’s “right” to act becomes an “obligation.”
The judge’s final decision on May 10, 2019, was clear, absolute, and is where the most powerful lesson of the entire case lies.
“While Respondent has the right to enforce the requirements that the Unit Owners keep the Drainage Easement Area clear, nothing in the CC&Rs provides that Respondent has an obligation to do so.”
This distinction is critical for any homeowner. An HOA can possess the legal power to act but may not be legally compelled to use it. According to the judge’s interpretation, the governing documents placed the responsibility for keeping the channel clear on the individual unit owners. The association’s only stated obligation was to repair damage after it happened, with the cost being billed back to the responsible party.
3. Outside Conflicts Can Cast a Long Shadow
Legal disputes are rarely just about the facts of the case. During the initial hearing, it was revealed that the petitioner was going through a “contentious divorce” and that the condo unit at the center of the dispute was a community asset being sold by the court.
The most dramatic evidence, however, came from an email written by the petitioner’s own wife, Debborah Sellers. The email, submitted as evidence by the HOA, directly undermined his claims about the severity of the drainage issue.
“There has never been any issue with the storm drain behind our house and it is not a major disclosure item… Stop making something out of nothing. AND I HOPE YOU AREN[’]T FREAKING POTENTIAL BUYERS AND OTHER REALTORS WITH THIS NONSENSE.”
In her decision, Judge Mihalsky officially stated that the divorce was “not relevant” to the technical question of whether the HOA violated the CC&Rs. However, she immediately added that the situation “cast a long shadow over his administrative complaint,” suggesting that the personal context, and especially the damaging email, severely harmed the petitioner’s credibility.
4. Writing Letters Isn’t the Same as Being Heard
Throughout the dispute, the petitioner made his concerns known by writing “many letters” to the HOA president. He was persistent in his written communications, attempting to force the issue onto the association’s radar.
Yet, this effort was contrasted with a notable lack of direct participation. According to the testimony of HOA President Kaplan during the first hearing, Sellers “never attended any of Respondent’s noticed Board meetings” where his concerns could have been discussed among the board members.
The HOA’s response to his letters was limited; it sent two general reminder letters to all residents in the affected area but did not take direct enforcement action against any specific homeowner. The practical takeaway is that to effect change or be taken seriously in an HOA dispute, visibility and participation are critical. Writing letters is a start, but attending official meetings to present a case in person can be a more effective strategy for ensuring an issue is formally addressed.
A Cautionary Tale for Any Homeowner
What began as a seemingly straightforward complaint about drainage and rule enforcement devolved into a legal battle that consumed nearly a year, involving two multi-day hearings before two different administrative law judges. The petitioner lost his case on the evidence, then lost it again on the law.
It serves as a potent cautionary tale, demonstrating that in the world of HOA disputes, the obvious path is not always the winning one. It leaves every homeowner with a final, thought-provoking question to ponder: When you see a problem in your community, how do you decide if a fight is worth the cost—not just in money, but in time, credibility, and peace?
Case Participants
Petitioner Side
John A Sellers(petitioner)
Respondent Side
Edward D. O’Brien(HOA attorney) Carpenter, Hazlewood, Delgado & Bolen, PLC/LLP Represented Respondent
The Administrative Law Judge dismissed the petition, finding that the HOA (Respondent) did not violate CC&R Section 3.10. The CC&Rs imposed the duty of keeping the drainage area clear primarily on the Unit Owners, and the HOA only retained the right to enforce this requirement, not an explicit obligation.
Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent violated the CC&Rs because the HOA did not have an obligation to enforce clearance requirements against unit owners under the cited covenant provisions.
Key Issues & Findings
Alleged violation of CC&Rs § 3.10 by failing to require unit owners to remove vegetation and fencing materials from the stormwater channel behind their homes.
Petitioner alleged the HOA violated CC&Rs § 3.10 by failing to compel unit owners to clear vegetation and debris (including chicken wire) from the stormwater drainage channel, asserting this failure created a flood risk to unit 12. The ALJ found that the CC&Rs placed the primary maintenance responsibility on Unit Owners, and the HOA only had the right, but not the obligation, to enforce clearance requirements.
Orders: The petition was denied and dismissed. No action was required of Respondent because Petitioner failed to establish that Respondent violated the CC&Rs regarding maintenance of the drainage easement.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 32-2199.01
Title 33, Chapter 9
A.A.C. R2-19-119(A) and (B)(1)
Vazanno v. Superior Court
A.A.C. R2-19-119(B)(2)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
BLACK’S LAW DICTIONARY
Powell v. Washburn
Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.
Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.
Video Overview
Audio Overview
Decision Documents
19F-H1918010-REL Decision – 667122.pdf
Uploaded 2025-10-09T03:33:27 (50.0 KB)
19F-H1918010-REL Decision – 678371.pdf
Uploaded 2025-10-09T03:33:27 (129.5 KB)
Briefing Doc – 19F-H1918010-REL
Briefing Document: Sellers vs. Rancho Madera Condominium Association
Executive Summary
This document synthesizes the legal proceedings and outcomes of the case John A Sellers, Petitioner, vs. Rancho Madera Condominium Association, Respondent (Case No. 19F-H1918010-REL), adjudicated by the Arizona Office of Administrative Hearings. The core of the dispute was a claim by Petitioner John Sellers that his homeowner’s association (HOA) violated its Covenants, Conditions, and Restrictions (CC&Rs) by failing to compel other homeowners to remove vegetation and fencing from a common stormwater drainage channel, which he alleged created a flood risk to his property, Unit 12.
The petitioner’s claim was ultimately unsuccessful. It was denied first in an initial evidentiary hearing and again in a subsequent rehearing. The central finding of the Administrative Law Judges (ALJs) in both decisions was a critical distinction between an HOA’s right to enforce rules and an obligation to do so. The ALJs determined that the CC&Rs placed the primary responsibility for maintaining the drainage easement on the individual unit owners. The HOA’s mandatory duty to intervene was found to be triggered only by actual damage resulting from an owner’s negligence, not by the mere potential for future damage. As no flooding or damage had ever occurred, the HOA was found to have acted within its authority and had not violated the CC&Rs. The petitioner’s personal circumstances, including a contentious divorce and court-ordered sale of the property, were noted but deemed legally irrelevant to the determination of a CC&R violation.
Case Chronology and Procedural History
The case progressed through an initial petition, a hearing, a decision, a request for rehearing, and a final decision on rehearing. A notable procedural anomaly occurred when a hearing scheduled for November 5, 2018, was officially vacated due to a withdrawal notice from the petitioner, yet the hearing proceeded on that date as originally planned.
Details
Aug 23, 2018
Petition Filed
John A. Sellers filed a single-issue petition with the Arizona Department of Real Estate alleging the Rancho Madera Condominium Association violated CC&R § 3.10.
Oct 23, 2018
Hearing Vacated
An order was issued by ALJ Diane Mihalsky vacating the November 5 hearing because the petitioner had notified the Department of his wish to withdraw the petition.
Nov 5 & Dec 12, 2018
Initial Hearing
Despite the prior vacating order, an evidentiary hearing was held before ALJ Mihalsky.
Dec 26, 2018
Initial Decision
ALJ Mihalsky issued a decision finding that the petitioner failed to prove his case. The petition was denied.
Feb 1, 2019
Rehearing Requested
The petitioner filed a request for a rehearing, alleging procedural irregularities and errors in the initial decision.
Feb 22, 2019
Rehearing Granted
The Commissioner of the Department of Real Estate granted the request for a rehearing.
Apr 15, 2019
Rehearing Held
A rehearing was held before a new judge, ALJ Tammy L. Eigenheer.
May 7, 2019
Post-Hearing Filing Stricken
The petitioner submitted an unauthorized supplemental argument after the rehearing. ALJ Eigenheer issued an order striking the filing from the record and closing the record.
May 10, 2019
Final Decision on Rehearing
ALJ Eigenheer issued a final decision, again finding for the respondent and dismissing the petition.
Core Dispute Analysis
Petitioner’s Position and Allegations
• Core Allegation: The petitioner alleged that the Rancho Madera Condominium Association (Respondent) violated CC&R § 3.10 by failing to enforce its rules. Specifically, the Association did not require owners of “Drainage Easement Units” to remove obstructions—such as large succulents, cacti, shrubs, and chicken wire fencing—from a 3′ x 3′ stormwater drainage canal located behind their homes.
• Perceived Risk: The petitioner testified that these items could catch storm debris, clog the channel, and cause flooding that would damage his property, Unit 12. He submitted videos of heavy rains to support his concern.
• Evolving Legal Argument: In the rehearing, the petitioner’s argument shifted. He acknowledged that the CC&Rs gave the Association the right to enforce maintenance standards but argued that “at a certain point exercising a right becomes an obligation,” particularly when matters of safety and property values are implicated.
• Claimed Financial Damages: The petitioner testified he was undergoing a contentious divorce and his condominium was being sold by order of the Maricopa County Superior Court. He asserted that due to the unresolved flood risk, which he was obligated to disclose, the sale price of Unit 12 was “$40,000 less than it would have been.”
Respondent’s Position and Actions
• Denial of Violation: The Association denied it had violated any CC&Rs by its handling of the drainage channel.
• Evidence and Testimony: The Association, represented by its President, Jeffrey Kaplan, presented several key points:
◦ No History of Flooding: Mr. Kaplan testified that Unit 12 had never sustained any flood damage since the development was built in 2012, including during a “100-year storm” in 2014. After a significant rainstorm in August 2018, he personally inspected the easement and saw no water in it.
◦ Origin of Plants: Mr. Kaplan stated that the builder had originally planted the vegetation in the drainage easement that the petitioner was concerned about.
◦ No Other Complaints: No other members of the 46-unit Association had expressed any concerns about drainage.
◦ Proactive Communication: To assuage the petitioner’s concerns, the Association’s management company sent letters to the relevant homeowners on April 18, 2018, and July 19, 2018, reminding them of their responsibility to keep the drainage area free of obstructions.
◦ Due Diligence: Mr. Kaplan contacted officials at the Maricopa County Flood Control District and the Town of Cave Creek, who confirmed the drainage area was not on any official floodplain maps and that the Association was solely responsible for its maintenance.
Key CC&R Provisions and Legal Interpretation
The ALJs’ decisions hinged on a close reading of the Rancho Madera CC&Rs. The analysis consistently differentiated between the duties of individual owners and the duties of the Association.
• CC&R § 3.10.2 — Unit Owner Responsibility: This section places the primary maintenance burden directly on the homeowners of the Drainage Easement Units.
◦ Interpretation: The legal conclusion was that this provision unambiguously makes individual owners responsible for keeping their portion of the easement clear.
• CC&R § 3.10.4 — Association Responsibility: This section defines the specific circumstance under which the Association is required to act.
◦ Interpretation: Both ALJs found that this clause creates a reactionary, not a proactive, duty for the Association. Its obligation to repair is triggered by actual damage occurring, not by a perceived risk of future damage.
• CC&R § 13.1.1 — Association Enforcement Power: This section, highlighted in the rehearing, grants the Association authority to act.
◦ Interpretation: The ALJ in the rehearing ruled that this language grants a discretionary right, not a mandatory obligation. The CC&Rs contain no provision that converts this right into a duty under the circumstances presented by the petitioner.
Judicial Findings and Rulings
Initial Decision (ALJ Diane Mihalsky, Dec 26, 2018)
• Burden of Proof: The petitioner failed to establish his claim by a preponderance of the evidence.
• Findings of Fact: The petitioner successfully established that plants and chicken wire existed in the stormwater canal. However, he failed to establish that these items actually impeded the flow of water.
• Conclusion: The respondent proved that the drainage canal had functioned as intended since 2012 and that Unit 12 had never flooded. The petitioner’s divorce was noted to have “cast a long shadow over his administrative complaint” but was irrelevant to the legal issue. The petition was denied.
Rehearing Decision (ALJ Tammy L. Eigenheer, May 10, 2019)
• Central Legal Finding: The CC&Rs clearly intend for unit owners to bear the primary responsibility for keeping the drainage area clear. The Association’s only specified obligation is to repair damage after it has occurred and bill the responsible owner.
• Right vs. Obligation: The decision explicitly states, “While Respondent has the right to enforce the requirements that the Unit Owners keep the Drainage Easement Area clear, nothing in the CC&Rs provides that Respondent has an obligation to do so.”
• Final Order: The petitioner failed to establish that the respondent violated Section 3.10 of the CC&Rs. The petition was dismissed.
Notable Evidence
A key piece of evidence submitted by the respondent was a June 22, 2018, email from the petitioner’s wife, Debborah Sellers, which directly refuted the petitioner’s claims. In the email, she stated:
“There has never been any issue with the storm drain behind our house and it is not a major disclosure item… Stop making something out of nothing. AND I HOPE YOU AREN[’]T FREAKING POTENTIAL BUYERS AND OTHER REALTORS WITH THIS NONSENSE.”
Study Guide – 19F-H1918010-REL
Study Guide for Case No. 19F-H1918010-REL: Sellers v. Rancho Madera Condominium Association
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 sentences, drawing exclusively from the information provided in the case documents.
1. What was the specific allegation John A. Sellers made against the Rancho Madera Condominium Association in his petition filed on August 23, 2018?
2. Identify the key responsibilities assigned to individual unit owners of Drainage Easement Units according to Section 3.10.2 of the CC&Rs.
3. Who is Jeffrey Kaplan, and what key testimony did he provide on behalf of the Respondent?
4. What specific actions did the Respondent’s management company take in April and July of 2018 to address the Petitioner’s concerns?
5. According to the decision by Administrative Law Judge Diane Mihalsky, what did the Petitioner fail to establish regarding the plants and chicken wire in the drainage canal?
6. On what grounds did John A. Sellers file his Homeowner’s Association (HOA) Dispute Rehearing Request on February 1, 2019?
7. What was the Petitioner’s core argument regarding the Association’s “right to enforce” the CC&Rs versus an “obligation to enforce” them?
8. What was the final conclusion of Administrative Law Judge Tammy L. Eigenheer regarding the Association’s responsibilities under the CC&Rs?
9. What occurred after the April 15, 2019 rehearing when the Petitioner attempted to submit supplemental information to the Office of Administrative Hearings?
10. Describe the evidence presented in an email from Debborah Sellers and its relevance to the case.
——————————————————————————–
Answer Key
1. John A. Sellers alleged that the Rancho Madera Condominium Association violated Section 3.10 of its Covenants, Conditions, and Restrictions (CC&Rs). He claimed the Association failed to require condominium owners to remove vegetation and fencing materials from the stormwater channel, creating a flood risk for his unit.
2. Section 3.10.2 of the CC&Rs requires each Unit Owner of a Drainage Easement Unit to keep their respective Drainage Easement Area free of weeds and other debris. The purpose is to ensure that stormwater can flow freely and that no improvement, including plant materials, impedes this flow.
3. Jeffrey Kaplan is the President of the Rancho Madera Condominium Association. He testified that the drainage easement had never failed, even during a 100-year storm in 2014, that the original builder had planted the vegetation in question, and that he had consulted with county and town officials about the drainage area.
4. To address the Petitioner’s concerns, the Respondent’s management company sent letters to the owners of the Drainage Easement Units. Letters sent on April 18, 2018, and July 19, 2018, reminded owners of their responsibility to keep the drainage area free of obstructions, weeds, and debris.
5. Judge Mihalsky’s decision on December 26, 2018, concluded that the Petitioner established the presence of plants and chicken wire but failed to establish that these items actually impede the flow of water. The judge found that the drainage system functions as intended and there was no unreasonable risk of flooding.
6. The Petitioner filed for a rehearing based on several alleged issues with the original proceeding. These included an irregularity in the proceedings, the existence of newly discovered evidence, errors in the admission or rejection of evidence, and a belief that the findings of fact or decision were arbitrary, capricious, or not supported by evidence.
7. The Petitioner argued that while the CC&Rs grant the Association the “right to enforce” maintenance requirements, this right becomes an “obligation” when issues of property values and safety are at stake. He maintained that the potential for flooding created such an obligation for the Association to act.
8. Judge Eigenheer concluded that the CC&Rs intend for unit owners to bear the responsibility of keeping the Drainage Easement Area clear. She determined that while the Association has the right to enforce this, nothing in the CC&Rs creates an obligation for it to do so, and its only specified responsibility is to repair damage after it occurs, billing the responsible unit owner.
9. After the rehearing, the Petitioner submitted supplemental authority and argument without having requested leave to do so. The Respondent’s counsel argued this filing was untimely and introduced new arguments, requesting it be struck. On May 7, 2019, Judge Eigenheer ordered the filing struck from the record and closed the record.
10. The Respondent submitted a June 22, 2018 email from Debborah Sellers, the Petitioner’s wife. In the email, she stated there had never been an issue with the storm drain, called his concerns “nonsense,” and noted that the developer had done a good job, undermining the Petitioner’s claim of a significant and obvious flood risk.
——————————————————————————–
Suggested Essay Questions
1. Analyze the legal reasoning used by Administrative Law Judge Tammy L. Eigenheer to dismiss the petition after the rehearing. Contrast her interpretation of the Association’s duties under the CC&Rs with the findings presented by Judge Diane Mihalsky in the initial decision.
2. Discuss the concept of “preponderance of the evidence” as defined in the legal documents. Evaluate the evidence presented by both the Petitioner and the Respondent, explaining why the Petitioner ultimately failed to meet this burden of proof in both hearings.
3. Trace the complete procedural history of case No. 19F-H1918010-REL. Identify and explain the significance of key events, including the initial petition, the vacated hearing, the first Administrative Law Judge Decision, the request for rehearing, and the final order dismissing the case.
4. Examine the role and responsibilities of the Rancho Madera Condominium Association versus the individual unit owners as defined by Sections 3.10, 3.10.2, 3.10.4, and 13.1.1 of the CC&Rs. How did the interpretation of these sections form the basis of the final legal decision?
5. Evaluate the different types of evidence presented in the hearings, including witness testimony (Sellers, Kaplan), documentary evidence (CC&Rs, letters, emails), and physical evidence (photographs, videos). How did each type of evidence contribute to the final outcome of the case?
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings, takes evidence, and makes legal decisions and orders. In this case, Diane Mihalsky and Tammy L. Eigenheer served as ALJs.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing legal documents that set up the guidelines for a planned community or condominium association. In this case, the CC&Rs for Rancho Madera were the central document in the dispute.
Drainage Easement
A perpetual, non-exclusive legal right created over a specific portion of property (the eastern five feet of Units 9-18) for constructing and maintaining a stormwater drainage channel.
Drainage Easement Area
The specific portion of land encumbered by the Drainage Easement, defined as the eastern five feet of the designated units.
Drainage Improvements
The physical components of the drainage system, such as the channel, decomposed granite, rip rap (large stones), or concrete, as originally constructed by the developer.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona responsible for conducting evidentiary hearings for other state agencies, such as the Department of Real Estate.
Petitioner
The party who initiates a legal action or files a petition seeking a legal remedy. In this case, John A. Sellers.
Preponderance of the Evidence
The standard of proof in this civil administrative case. It is defined as evidence that is sufficient to incline a fair and impartial mind to one side of an issue rather than the other, making a contention more probably true than not.
Rehearing
A second hearing of a case, granted by the Commissioner in this instance, to re-examine the issues based on claims such as procedural irregularities, newly discovered evidence, or errors in the original decision.
Respondent
The party against whom a petition is filed; the party who must respond to the petitioner’s claims. In this case, the Rancho Madera Condominium Association.
The Department
Refers to the Arizona Department of Real Estate, the state agency authorized to receive and decide on petitions for hearings from members of condominium unit owners’ associations.
Blog Post – 19F-H1918010-REL
I Read an Entire HOA Lawsuit. Here Are 4 Shocking Lessons About Power, Rules, and Reality.
The Anatomy of a Neighborhood War
Living under a Homeowner’s Association (HOA) often means navigating a complex world of rules, regulations, and neighborhood politics. For most, disagreements are minor annoyances. But sometimes, a seemingly small issue can escalate into a full-blown legal war.
This is the story of one homeowner’s single-minded crusade against his HOA over a stormwater drainage channel he believed was a serious flooding risk. After filing a formal petition, the dispute escalated into a multi-stage legal battle that spanned nearly a year. The official court documents reveal that even after a judge ruled decisively against him, the homeowner doubled down, demanding a rare rehearing.
A deep dive into this protracted case reveals a fascinating and cautionary tale. The legal reasoning that ultimately settled the matter highlights several surprising lessons that apply to anyone living in a planned community.
1. Proving a Rule Was Broken Isn’t the Same as Proving Harm
The initial hearing, held before Administrative Law Judge Diane Mihalsky in late 2018, centered on a seemingly straightforward argument from the petitioner, John Sellers. He pointed out that his neighbors had placed plants—including large succulents, shrubs, and cacti—as well as chicken wire in a stormwater drainage channel. This, he argued, was a clear violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs), which stated that no improvement “shall be constructed, installed or allowed to grow… that may… impede the flow of water.”
But in her December 26, 2018 decision, the judge ruled against him. While Sellers successfully proved the obstructions existed, he failed to meet the legal burden of proof that they actually “impede the flow of water.” His claim was defeated by testimony from the HOA President, Jeffrey Kaplan, who stated that the unit had never sustained any flood damage, not even during a “100-year storm in 2014.”
The lesson from this first round is stark: in this legal context, simply pointing out a technical rule break was not enough. The petitioner had to prove that the violation was causing a tangible, negative impact. Without evidence of actual harm or impeded water flow, the theoretical risk was insufficient to win the case.
2. An HOA’s “Right” to Enforce Is Not an “Obligation”
After losing the first round on a question of evidence, Sellers’ argument evolved. He requested a rehearing, which was granted, and the case landed before a new judge, Tammy L. Eigenheer, in the spring of 2019. This shifted the legal focus from physical proof of impeded water flow to a more fundamental question of the HOA’s duties.
Sellers argued that because safety and property values were at stake, the association had a duty to enforce the CC&Rs and compel his neighbors to clear the drainage channel. He contended that at a certain point, an organization’s “right” to act becomes an “obligation.”
The judge’s final decision on May 10, 2019, was clear, absolute, and is where the most powerful lesson of the entire case lies.
“While Respondent has the right to enforce the requirements that the Unit Owners keep the Drainage Easement Area clear, nothing in the CC&Rs provides that Respondent has an obligation to do so.”
This distinction is critical for any homeowner. An HOA can possess the legal power to act but may not be legally compelled to use it. According to the judge’s interpretation, the governing documents placed the responsibility for keeping the channel clear on the individual unit owners. The association’s only stated obligation was to repair damage after it happened, with the cost being billed back to the responsible party.
3. Outside Conflicts Can Cast a Long Shadow
Legal disputes are rarely just about the facts of the case. During the initial hearing, it was revealed that the petitioner was going through a “contentious divorce” and that the condo unit at the center of the dispute was a community asset being sold by the court.
The most dramatic evidence, however, came from an email written by the petitioner’s own wife, Debborah Sellers. The email, submitted as evidence by the HOA, directly undermined his claims about the severity of the drainage issue.
“There has never been any issue with the storm drain behind our house and it is not a major disclosure item… Stop making something out of nothing. AND I HOPE YOU AREN[’]T FREAKING POTENTIAL BUYERS AND OTHER REALTORS WITH THIS NONSENSE.”
In her decision, Judge Mihalsky officially stated that the divorce was “not relevant” to the technical question of whether the HOA violated the CC&Rs. However, she immediately added that the situation “cast a long shadow over his administrative complaint,” suggesting that the personal context, and especially the damaging email, severely harmed the petitioner’s credibility.
4. Writing Letters Isn’t the Same as Being Heard
Throughout the dispute, the petitioner made his concerns known by writing “many letters” to the HOA president. He was persistent in his written communications, attempting to force the issue onto the association’s radar.
Yet, this effort was contrasted with a notable lack of direct participation. According to the testimony of HOA President Kaplan during the first hearing, Sellers “never attended any of Respondent’s noticed Board meetings” where his concerns could have been discussed among the board members.
The HOA’s response to his letters was limited; it sent two general reminder letters to all residents in the affected area but did not take direct enforcement action against any specific homeowner. The practical takeaway is that to effect change or be taken seriously in an HOA dispute, visibility and participation are critical. Writing letters is a start, but attending official meetings to present a case in person can be a more effective strategy for ensuring an issue is formally addressed.
A Cautionary Tale for Any Homeowner
What began as a seemingly straightforward complaint about drainage and rule enforcement devolved into a legal battle that consumed nearly a year, involving two multi-day hearings before two different administrative law judges. The petitioner lost his case on the evidence, then lost it again on the law.
It serves as a potent cautionary tale, demonstrating that in the world of HOA disputes, the obvious path is not always the winning one. It leaves every homeowner with a final, thought-provoking question to ponder: When you see a problem in your community, how do you decide if a fight is worth the cost—not just in money, but in time, credibility, and peace?
Case Participants
Petitioner Side
John A Sellers(petitioner)
Respondent Side
Edward D. O’Brien(HOA attorney) Carpenter, Hazlewood, Delgado & Bolen, PLC/LLP Represented Respondent
The ALJ granted the petitioner's request, finding that the HOA violated A.R.S. § 33-1813 by allowing the president to call a special meeting for board member recall without the required petition signed by homeowners. The HOA was ordered to reinstate the two removed board members and refund the petitioner's filing fee.
Key Issues & Findings
Removal of board member; special meeting
Petitioner alleged the HOA violated A.R.S. § 33-1813 when the president called a special meeting to recall three recently elected Board members, arguing that the statute requires a petition signed by homeowners. Respondent argued that A.R.S. § 33-1804 procedures could also be used. The ALJ ruled that A.R.S. § 33-1813, as the specific statute regarding removal, requires a petition.
Orders: Petitioner’s petition is granted. Respondent shall reinstate Board members Steve Brownell and Trish Brownell and reimburse the $500.00 single-issue filing fee.
Briefing Document: Van Dan Elzen v. Carter Ranch Homeowners Association (Case No. 18F-H1818042-REL)
Executive Summary
This document synthesizes the findings and decision in the case of Thomas J. Van Dan Elzen versus the Carter Ranch Homeowners Association (HOA), heard by the Arizona Office of Administrative Hearings. The central dispute concerned the legality of a special meeting called by the HOA Board President to recall three recently elected board members. The petitioner argued this action violated Arizona Revised Statute (A.R.S.) § 33-1813, which requires such a recall to be initiated by a petition from homeowners. The HOA contended that the president had the authority to call the meeting under the broader powers granted in A.R.S. § 33-1804.
The Administrative Law Judge concluded that when a specific statute and a general statute conflict, the specific statute controls. A.R.S. § 33-1813 specifically governs the removal of board members and mandates a homeowner petition process. Therefore, the president’s unilateral call for a recall election was improper. The judge granted the petitioner’s request, ordering the HOA to reinstate the two board members who were removed and to reimburse the petitioner’s $500.00 filing fee.
Background and Procedural History
The case involves a dispute within the Carter Ranch development, a 253-lot community in Coolidge, Arizona.
• Petitioner: Thomas J. Van Dan Elzen, a homeowner and member of the Carter Ranch HOA.
• Respondent: Carter Ranch Homeowners Association.
• Petition: On or about April 5, 2018, Van Dan Elzen filed a petition with the Arizona Department of Real Estate. He alleged the HOA violated A.R.S. § 33-1813 when its president, Lance Van Horne, called a special meeting to recall three newly elected board members.
• Hearing: The matter was referred to the Office of Administrative Hearings for an evidentiary hearing, which took place on June 20, 2018, before Administrative Law Judge Diane Mihalsky.
The Contested Elections
The dispute originated from a contentious board election process marked by accusations of misconduct, culminating in a recall election that was later found to be procedurally invalid.
March 20, 2018 Board Election
An initial annual meeting on February 20, 2018, failed to achieve the required quorum of 26 ballots. A second meeting was scheduled for March 20, 2018, for which eight candidates ran for five open board positions.
• Allegations of Misconduct: Prior to the meeting, Community Manager Mary Chaira received reports that three candidates—Roxanne Gould, Steve Brownell, and Trish Brownell—were going door-to-door “disseminating allegedly false information about Respondent’s finances, and harvesting ballots.”
• Meeting Conduct: At the March 20 meeting, a quorum of 47 homeowners was present. Board President Lance Van Horne addressed the allegations of false information. However, homeowners who may have filled out ballots based on this information were not permitted to withdraw them. The meeting was described by Ms. Chaira as “unruly and stressful.”
The election results for the top six candidates were as follows:
Candidate
Number of Votes
Outcome
Roxanne Gould
Elected
Steve Brownell
Elected
Trish Brownell
Elected
Lance Van Horne
Elected
Steve F.
Tie for 5th position
Tie for 5th position
April 24, 2018 Recall Election
Believing the March 20 election outcome was “compromised” by the alleged dissemination of false information and ballot harvesting, President Van Horne called a special meeting for April 24, 2018, to hold a recall election for the three newly elected members: Roxanne Gould, Steve Brownell, and Trish Brownell.
A quorum of 52 homeowners returned ballots for the recall. The results were:
Board Member
Votes for Recall
Votes against Recall
Outcome
Roxanne Gould
Remained on Board
Steve Brownell
Removed from Board
Trish Brownell
Removed from Board
Following the recall, other members were elected to fill the vacant board positions.
Central Legal Issue: Statutory Interpretation
The case presented a pure legal question of statutory interpretation, as the facts of what occurred were not in dispute. The core issue was which Arizona statute governs the process for recalling an HOA board member.
Competing Legal Positions
• Petitioner’s Argument: The recall election was invalid because it violated A.R.S. § 33-1813. This statute, titled “Removal of board member; special meeting,” explicitly states that a recall process is initiated upon the board’s receipt of a petition signed by a specified number or percentage of homeowners. The president’s unilateral action did not meet this requirement.
• Respondent’s Argument: The HOA argued that A.R.S. § 33-1813 was not the exclusive procedure. It claimed that the president could also call such a meeting under the authority of A.R.S. § 33-1804, a more general statute governing meetings, which states that “Special meetings of the members’ association may be called by the president.”
Statutory Analysis by the Court
The Administrative Law Judge highlighted the direct conflict between the two statutes on the subject of board member removal.
Feature
A.R.S. § 33-1813 (Specific Statute)
A.R.S. § 33-1804(B) (General Statute)
Meeting Initiation
By homeowner petition only.
By the president, a board majority, or homeowner petition.
Petition Requirement
For HOAs ≤ 1,000 members: petition signed by at least 100 members or 25% of votes, whichever is less.
Petition signed by at least 25% of votes (or lower if specified in bylaws).
Meeting Notice
Within 30 days after receipt of the petition.
Between 10 and 50 days in advance of the meeting.
The judge noted that A.R.S. § 33-1813 specifically overrides the petition requirements of A.R.S. § 33-1804(B), demonstrating legislative intent for it to be the controlling authority on this specific issue.
The Judge’s Legal Conclusion
The decision rested on the well-established legal principle that a specific statute governs over a general one when they are inconsistent. Citing case law, the judge reasoned:
“When provisions of a general statute are inconsistent with those of a special nature on the same subject, the special statute controls.”
Applying this canon of statutory construction, the judge concluded that A.R.S. § 33-1813 is the controlling authority for the removal of an HOA board member. Therefore, a valid recall process must be initiated by a homeowner petition as outlined in that statute. The president lacked the authority to call the April 24, 2018 recall meeting on his own initiative.
Final Order and Implications
Based on the legal conclusion that the Respondent violated A.R.S. § 33-1813, the Administrative Law Judge issued a recommended order with the following mandates:
1. Petition Granted: The petitioner’s petition is granted.
2. Board Member Reinstatement: The Carter Ranch HOA is required to reinstate Board members Steve Brownell and Trish Brownell.
3. Fee Reimbursement: The HOA must reimburse the petitioner, Thomas J. Van Dan Elzen, for his $500.00 single-issue filing fee.
This order is considered binding unless a party files a request for rehearing with the Commissioner of the Department of Real Estate within 30 days of the service of the order.
Study Guide – 18F-H1818042-REL
Study Guide: Van Dan Elzen v. Carter Ranch Homeowners Association
This study guide provides a detailed review of the Administrative Law Judge Decision in case number 18F-H1818042-REL, Thomas J. Van Dan Elzen v. Carter Ranch Homeowners Association. It covers the key facts, legal arguments, and final ruling of the case.
Short-Answer Quiz
Answer the following questions in 2-3 sentences each, based on the information provided in the case document.
1. Who were the primary parties involved in this case, and what were their respective roles?
2. What specific action by the Carter Ranch Homeowners Association (HOA) prompted the Petitioner to file a complaint with the Arizona Department of Real Estate?
3. What were the allegations made against candidates Roxanne Gould, Steve Brownell, and Trish Brownell prior to the March 20, 2018 election?
4. State the vote counts for the top three candidates who were elected to the Board of Directors on March 20, 2018.
5. What was the reason given by the Board’s president, Lance Van Horne, for calling a special recall election for April 24, 2018?
6. What were the specific outcomes for each of the three board members facing recall in the April 24, 2018 election?
7. Which two Arizona Revised Statutes (A.R.S.) were at the center of the legal dispute, and what general topics do they cover?
8. What was the HOA’s primary legal argument for why its president was permitted to call the special recall meeting?
9. What legal principle of statutory construction did the Administrative Law Judge use to resolve the conflict between the two statutes?
10. What two things was the Respondent, Carter Ranch HOA, ordered to do in the final ruling?
——————————————————————————–
Quiz Answer Key
1. The primary parties were Thomas J. Van Dan Elzen, the Petitioner, who is a homeowner and member of the association, and the Carter Ranch Homeowners Association, the Respondent. The Petitioner initiated the legal action against the HOA.
2. The Petitioner filed the complaint because the HOA’s president called a special meeting to hold a vote on recalling three recently elected members of the Board of Directors. The Petitioner alleged this action violated A.R.S. § 33-1813, which requires such a recall to be initiated by a petition signed by homeowners.
3. Prior to the March election, reports were made that Roxanne Gould, Steve Brownell, and Trish Brownell were going door-to-door disseminating allegedly false information about the HOA’s finances. They were also accused of “harvesting ballots” from members based on this information.
4. The top three candidates elected on March 20, 2018, were Roxanne Gould with 30 votes, Steve Brownell with 26 votes, and Trish Brownell with 25 votes.
5. Board president Lance Van Horne called the special recall election because he felt the election’s outcome was compromised. He believed the dissemination of allegedly false information and the harvesting of votes by the Brownells and Ms. Gould had tainted the results.
6. In the April 24 recall election, Roxanne Gould survived the recall with 27 votes against to 25 for. Steve Brownell and Trish Brownell were both removed from the board, with 27 votes for their recall and 25 against.
7. The statutes at the center of the dispute were A.R.S. § 33-1813 and A.R.S. § 33-1804. A.R.S. § 33-1813 specifically covers the “Removal of board member; special meeting,” while A.R.S. § 33-1804 is a more general statute concerning “Open meetings.”
8. The HOA argued that A.R.S. § 33-1813 was not the only procedure for calling a recall meeting. It contended that the procedures in the more general statute, A.R.S. § 33-1804, which allows the president to call a special meeting, could also be used.
9. The judge applied the well-established common law principle that when a general statute and a specific statute on the same subject are in conflict, the specific statute controls. Therefore, the specific procedures for recall in A.R.S. § 33-1813 took precedence over the general meeting rules in A.R.S. § 33-1804.
10. The Carter Ranch HOA was ordered to reinstate the removed board members, Steve Brownell and Trish Brownell. The HOA was also ordered to reimburse the Petitioner for his $500.00 single-issue filing fee.
——————————————————————————–
Essay Questions
1. Trace the complete timeline of events described in the decision, beginning with the failed meeting on February 20, 2018, and concluding with the judge’s final order. For each key date, describe the event that occurred, the people involved, and the outcome of the event.
2. Analyze the conflicting interpretations of Arizona state law presented by the Petitioner and the Respondent. Explain which specific clauses of A.R.S. § 33-1813 and A.R.S. § 33-1804 each party relied upon to justify their position regarding the legality of the April 24, 2018 recall meeting.
3. The decision states that the case presents a “pure legal issue of statutory interpretation.” Explain what this means and how it affects the burden of proof. Describe in detail the canons of statutory construction cited by the judge and how she applied them to rule in favor of the Petitioner.
4. Discuss the role of the allegations of misconduct (disseminating false information and harvesting ballots) against the newly elected board members. How did these allegations act as a catalyst for the recall election, and what was their ultimate relevance (or lack thereof) to the final legal conclusion reached by the Administrative Law Judge?
5. Based on the judge’s “Conclusions of Law,” explain the definitive legal procedure for an HOA in Arizona, with 1,000 or fewer members, to initiate the removal of a board member. Detail the petition requirements, signature thresholds, and meeting notice timelines as established by the controlling statute, A.R.S. § 33-1813.
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent official who presides over administrative hearings, hears evidence, and makes legal decisions, in this case, Diane Mihalsky from the Office of Administrative Hearings.
A.R.S.
Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona.
Board of Directors
The governing body of the homeowners’ association, elected by the members.
Burden of Proof
The obligation on a party in a legal case to prove their allegations. In this matter, the Petitioner bore the burden of proof to establish the violation.
De Novo Review
A type of review where a court or judge decides the issues without reference to any legal conclusion or assumption made by the previous party in the case. This was applied because the issue was a pure matter of statutory interpretation.
Department
Refers to the Arizona Department of Real Estate, the state agency authorized to receive and decide on petitions from HOA members.
Evidentiary Standard
The level of proof required to convince the trier of fact. In this case, the standard was a “preponderance of the evidence.”
Homeowners’ Association (HOA)
The organization that governs the Carter Ranch development, of which all lot owners are members.
Office of Administrative Hearings
An independent state agency in Arizona where evidentiary hearings, like the one in this case, are conducted.
Petitioner
The party who initiates a legal action by filing a petition. In this case, it was homeowner Thomas J. Van Dan Elzen.
Preponderance of the Evidence
The standard of proof in which the trier of fact is convinced that a contention is more probably true than not.
Quorum
The minimum number of members of an association that must be present at a meeting for the proceedings of that meeting to be valid. In the March 20 election, the quorum was 47 homeowners.
Recall Election
A special vote held to determine whether to remove an elected official (in this case, board members) from office before the end of their term.
Respondent
The party against whom a petition is filed. In this case, it was the Carter Ranch Homeowners Association.
Special Meeting
A meeting of an association’s members called for a specific purpose outside of the regularly scheduled annual meetings. The April 24 recall vote was a special meeting.
Statutory Construction
The process of interpreting and applying legislation. The judge used common-law canons of statutory construction to resolve the conflict between the two A.R.S. sections.
Blog Post – 18F-H1818042-REL
Majority Rules? Not in This HOA: How One Homeowner Overturned a Recall Election on a Technicality
The Unruly World of Neighborhood Politics
In the world of Homeowners Associations, a majority vote is typically the final word. But for the Carter Ranch HOA, a 27-to-25 recall vote meant to oust two board members became the start of a legal battle, not the end. This case reveals a crucial lesson in community governance: when a board president’s unilateral action clashes with statutory procedure, the will of the majority can be rendered completely irrelevant.
A Democratic Vote Can Be Completely Ignored
On April 24, 2018, the Carter Ranch HOA held a special recall election targeting three recently elected board members: Roxanne Gould, Steve Brownell, and Trish Brownell. A quorum of 52 homeowners participated, and the vote was a split decision. Roxanne Gould survived the recall attempt, with 27 votes against her removal and 25 for it. However, Steve and Trish Brownell were successfully voted off the board by a clear majority of 27 to 25.
The twist came later, in a judge’s chambers. Despite the democratic outcome, an Administrative Law Judge ordered the HOA to reinstate the Brownells. This counter-intuitive decision wasn’t the result of voter fraud or a miscount. The entire election was nullified because of a critical procedural error made by the HOA president before a single ballot was cast.
An HOA President Can’t Unilaterally Oust Board Members
The conflict began after a heated board election on March 20, 2018. The board president at the time, Lance Van Horne, felt the election’s outcome was “compromised.” He believed three newly elected members had won their seats by disseminating “allegedly false information” and “harvesting of votes.”
In response, Mr. Van Horne took decisive action. Believing he was correcting a wrong, he personally called for a special meeting to hold a recall election. This unilateral action became the sole basis for the legal challenge that followed. While the president’s concerns about election integrity were the catalyst for the drama, the court’s subsequent decision would demonstrate that his motives were entirely irrelevant. The only thing that mattered was the procedure he followed—or in this case, failed to follow.
The “Specific Beats General” Rule Is King
The HOA’s legal defense rested on a general statute, A.R.S. § 33-1804, which grants an association’s president the power to call special meetings for various purposes. They argued this general power included the authority to call a recall meeting.
However, the homeowner who challenged the recall pointed to a different, more specific law. A.R.S. § 33-1813 is a statute written exclusively for the purpose of removing board members. This specific law dictates that a recall process can only be initiated upon receipt of a petition signed by a required number of homeowners. The president cannot simply decide to do it alone.
The judge’s decision hinged on a foundational principle of legal interpretation. As cited in the final order:
“When provisions of a general statute are inconsistent with those of a special nature on the same subject, the special statute controls.”
Because the HOA president initiated the recall without first receiving the required petition from the homeowners, he failed to follow the specific procedure mandated by law. As a result, the entire recall election was declared invalid from the start.
One Homeowner Can Successfully Challenge an Entire HOA
This entire case was set in motion not by a group of disgruntled residents, but by a single individual. Homeowner Thomas J. Van Dan Elzen filed a “single-issue petition” with the state, challenging the validity of the president’s action. His understanding of the specific rules governing board member removal proved to be the key that unraveled the HOA’s actions.
The final court order was a complete victory for the petitioner:
• His petition was granted.
• The Carter Ranch HOA was ordered to reinstate the two removed board members, Steve and Trish Brownell.
• The HOA was also ordered to reimburse the petitioner for his $500.00 filing fee.
This outcome serves as an empowering example of how a single member, armed with knowledge of the governing documents and statutes, can hold an association’s leadership accountable and ensure that proper procedures are followed.
Conclusion: Rules, Not Rulers
The Carter Ranch case is a powerful illustration that in community governance, established process is not a technicality—it is the bedrock of legitimacy. The board’s failure to adhere to the specific statute for recalls (A.R.S. § 33-1813) created a fatal procedural flaw that no amount of good intention or majority support could cure. This serves as a stark reminder for all HOA boards: power is derived from the meticulous application of rules, not the perceived authority of rulers. Ignoring this principle doesn’t just invalidate an action; it exposes the association to legal challenges, financial penalties, and a loss of credibility with the community it governs. Do you know the specific rules that govern your own community?
Case Participants
Petitioner Side
Thomas J. Van Dan Elzen(petitioner) Appeared on his own behalf
Respondent Side
Chad M. Gallacher(attorney) Maxwell & Morgan, P.C. Represented Respondent
Mary Chaira(Community Manager) Witness for Respondent
Lance Van Horne(Board President) Called the special recall election which led to the petition,,
Neutral Parties
Diane Mihalsky(ALJ)
Judy Lowe(Commissioner) Arizona Department of Real Estate Received decision
Felicia Del Sol(staff) Transmitted decision
Other Participants
Roxanne Gould(board member) Elected board member; subject of recall attempt,,
Steve Brownell(board member) Elected board member; removed by recall, reinstated by recommended order,,,
Trish Brownell(board member) Elected board member; removed by recall, reinstated by recommended order,,,
The ALJ granted the petitioner's request, finding that the HOA violated A.R.S. § 33-1813 by allowing the president to call a special meeting for board member recall without the required petition signed by homeowners. The HOA was ordered to reinstate the two removed board members and refund the petitioner's filing fee.
Key Issues & Findings
Removal of board member; special meeting
Petitioner alleged the HOA violated A.R.S. § 33-1813 when the president called a special meeting to recall three recently elected Board members, arguing that the statute requires a petition signed by homeowners. Respondent argued that A.R.S. § 33-1804 procedures could also be used. The ALJ ruled that A.R.S. § 33-1813, as the specific statute regarding removal, requires a petition.
Orders: Petitioner’s petition is granted. Respondent shall reinstate Board members Steve Brownell and Trish Brownell and reimburse the $500.00 single-issue filing fee.
Briefing Document: Van Dan Elzen v. Carter Ranch Homeowners Association (Case No. 18F-H1818042-REL)
Executive Summary
This document synthesizes the findings and decision in the case of Thomas J. Van Dan Elzen versus the Carter Ranch Homeowners Association (HOA), heard by the Arizona Office of Administrative Hearings. The central dispute concerned the legality of a special meeting called by the HOA Board President to recall three recently elected board members. The petitioner argued this action violated Arizona Revised Statute (A.R.S.) § 33-1813, which requires such a recall to be initiated by a petition from homeowners. The HOA contended that the president had the authority to call the meeting under the broader powers granted in A.R.S. § 33-1804.
The Administrative Law Judge concluded that when a specific statute and a general statute conflict, the specific statute controls. A.R.S. § 33-1813 specifically governs the removal of board members and mandates a homeowner petition process. Therefore, the president’s unilateral call for a recall election was improper. The judge granted the petitioner’s request, ordering the HOA to reinstate the two board members who were removed and to reimburse the petitioner’s $500.00 filing fee.
Background and Procedural History
The case involves a dispute within the Carter Ranch development, a 253-lot community in Coolidge, Arizona.
• Petitioner: Thomas J. Van Dan Elzen, a homeowner and member of the Carter Ranch HOA.
• Respondent: Carter Ranch Homeowners Association.
• Petition: On or about April 5, 2018, Van Dan Elzen filed a petition with the Arizona Department of Real Estate. He alleged the HOA violated A.R.S. § 33-1813 when its president, Lance Van Horne, called a special meeting to recall three newly elected board members.
• Hearing: The matter was referred to the Office of Administrative Hearings for an evidentiary hearing, which took place on June 20, 2018, before Administrative Law Judge Diane Mihalsky.
The Contested Elections
The dispute originated from a contentious board election process marked by accusations of misconduct, culminating in a recall election that was later found to be procedurally invalid.
March 20, 2018 Board Election
An initial annual meeting on February 20, 2018, failed to achieve the required quorum of 26 ballots. A second meeting was scheduled for March 20, 2018, for which eight candidates ran for five open board positions.
• Allegations of Misconduct: Prior to the meeting, Community Manager Mary Chaira received reports that three candidates—Roxanne Gould, Steve Brownell, and Trish Brownell—were going door-to-door “disseminating allegedly false information about Respondent’s finances, and harvesting ballots.”
• Meeting Conduct: At the March 20 meeting, a quorum of 47 homeowners was present. Board President Lance Van Horne addressed the allegations of false information. However, homeowners who may have filled out ballots based on this information were not permitted to withdraw them. The meeting was described by Ms. Chaira as “unruly and stressful.”
The election results for the top six candidates were as follows:
Candidate
Number of Votes
Outcome
Roxanne Gould
Elected
Steve Brownell
Elected
Trish Brownell
Elected
Lance Van Horne
Elected
Steve F.
Tie for 5th position
Tie for 5th position
April 24, 2018 Recall Election
Believing the March 20 election outcome was “compromised” by the alleged dissemination of false information and ballot harvesting, President Van Horne called a special meeting for April 24, 2018, to hold a recall election for the three newly elected members: Roxanne Gould, Steve Brownell, and Trish Brownell.
A quorum of 52 homeowners returned ballots for the recall. The results were:
Board Member
Votes for Recall
Votes against Recall
Outcome
Roxanne Gould
Remained on Board
Steve Brownell
Removed from Board
Trish Brownell
Removed from Board
Following the recall, other members were elected to fill the vacant board positions.
Central Legal Issue: Statutory Interpretation
The case presented a pure legal question of statutory interpretation, as the facts of what occurred were not in dispute. The core issue was which Arizona statute governs the process for recalling an HOA board member.
Competing Legal Positions
• Petitioner’s Argument: The recall election was invalid because it violated A.R.S. § 33-1813. This statute, titled “Removal of board member; special meeting,” explicitly states that a recall process is initiated upon the board’s receipt of a petition signed by a specified number or percentage of homeowners. The president’s unilateral action did not meet this requirement.
• Respondent’s Argument: The HOA argued that A.R.S. § 33-1813 was not the exclusive procedure. It claimed that the president could also call such a meeting under the authority of A.R.S. § 33-1804, a more general statute governing meetings, which states that “Special meetings of the members’ association may be called by the president.”
Statutory Analysis by the Court
The Administrative Law Judge highlighted the direct conflict between the two statutes on the subject of board member removal.
Feature
A.R.S. § 33-1813 (Specific Statute)
A.R.S. § 33-1804(B) (General Statute)
Meeting Initiation
By homeowner petition only.
By the president, a board majority, or homeowner petition.
Petition Requirement
For HOAs ≤ 1,000 members: petition signed by at least 100 members or 25% of votes, whichever is less.
Petition signed by at least 25% of votes (or lower if specified in bylaws).
Meeting Notice
Within 30 days after receipt of the petition.
Between 10 and 50 days in advance of the meeting.
The judge noted that A.R.S. § 33-1813 specifically overrides the petition requirements of A.R.S. § 33-1804(B), demonstrating legislative intent for it to be the controlling authority on this specific issue.
The Judge’s Legal Conclusion
The decision rested on the well-established legal principle that a specific statute governs over a general one when they are inconsistent. Citing case law, the judge reasoned:
“When provisions of a general statute are inconsistent with those of a special nature on the same subject, the special statute controls.”
Applying this canon of statutory construction, the judge concluded that A.R.S. § 33-1813 is the controlling authority for the removal of an HOA board member. Therefore, a valid recall process must be initiated by a homeowner petition as outlined in that statute. The president lacked the authority to call the April 24, 2018 recall meeting on his own initiative.
Final Order and Implications
Based on the legal conclusion that the Respondent violated A.R.S. § 33-1813, the Administrative Law Judge issued a recommended order with the following mandates:
1. Petition Granted: The petitioner’s petition is granted.
2. Board Member Reinstatement: The Carter Ranch HOA is required to reinstate Board members Steve Brownell and Trish Brownell.
3. Fee Reimbursement: The HOA must reimburse the petitioner, Thomas J. Van Dan Elzen, for his $500.00 single-issue filing fee.
This order is considered binding unless a party files a request for rehearing with the Commissioner of the Department of Real Estate within 30 days of the service of the order.
Study Guide – 18F-H1818042-REL
Study Guide: Van Dan Elzen v. Carter Ranch Homeowners Association
This study guide provides a detailed review of the Administrative Law Judge Decision in case number 18F-H1818042-REL, Thomas J. Van Dan Elzen v. Carter Ranch Homeowners Association. It covers the key facts, legal arguments, and final ruling of the case.
Short-Answer Quiz
Answer the following questions in 2-3 sentences each, based on the information provided in the case document.
1. Who were the primary parties involved in this case, and what were their respective roles?
2. What specific action by the Carter Ranch Homeowners Association (HOA) prompted the Petitioner to file a complaint with the Arizona Department of Real Estate?
3. What were the allegations made against candidates Roxanne Gould, Steve Brownell, and Trish Brownell prior to the March 20, 2018 election?
4. State the vote counts for the top three candidates who were elected to the Board of Directors on March 20, 2018.
5. What was the reason given by the Board’s president, Lance Van Horne, for calling a special recall election for April 24, 2018?
6. What were the specific outcomes for each of the three board members facing recall in the April 24, 2018 election?
7. Which two Arizona Revised Statutes (A.R.S.) were at the center of the legal dispute, and what general topics do they cover?
8. What was the HOA’s primary legal argument for why its president was permitted to call the special recall meeting?
9. What legal principle of statutory construction did the Administrative Law Judge use to resolve the conflict between the two statutes?
10. What two things was the Respondent, Carter Ranch HOA, ordered to do in the final ruling?
——————————————————————————–
Quiz Answer Key
1. The primary parties were Thomas J. Van Dan Elzen, the Petitioner, who is a homeowner and member of the association, and the Carter Ranch Homeowners Association, the Respondent. The Petitioner initiated the legal action against the HOA.
2. The Petitioner filed the complaint because the HOA’s president called a special meeting to hold a vote on recalling three recently elected members of the Board of Directors. The Petitioner alleged this action violated A.R.S. § 33-1813, which requires such a recall to be initiated by a petition signed by homeowners.
3. Prior to the March election, reports were made that Roxanne Gould, Steve Brownell, and Trish Brownell were going door-to-door disseminating allegedly false information about the HOA’s finances. They were also accused of “harvesting ballots” from members based on this information.
4. The top three candidates elected on March 20, 2018, were Roxanne Gould with 30 votes, Steve Brownell with 26 votes, and Trish Brownell with 25 votes.
5. Board president Lance Van Horne called the special recall election because he felt the election’s outcome was compromised. He believed the dissemination of allegedly false information and the harvesting of votes by the Brownells and Ms. Gould had tainted the results.
6. In the April 24 recall election, Roxanne Gould survived the recall with 27 votes against to 25 for. Steve Brownell and Trish Brownell were both removed from the board, with 27 votes for their recall and 25 against.
7. The statutes at the center of the dispute were A.R.S. § 33-1813 and A.R.S. § 33-1804. A.R.S. § 33-1813 specifically covers the “Removal of board member; special meeting,” while A.R.S. § 33-1804 is a more general statute concerning “Open meetings.”
8. The HOA argued that A.R.S. § 33-1813 was not the only procedure for calling a recall meeting. It contended that the procedures in the more general statute, A.R.S. § 33-1804, which allows the president to call a special meeting, could also be used.
9. The judge applied the well-established common law principle that when a general statute and a specific statute on the same subject are in conflict, the specific statute controls. Therefore, the specific procedures for recall in A.R.S. § 33-1813 took precedence over the general meeting rules in A.R.S. § 33-1804.
10. The Carter Ranch HOA was ordered to reinstate the removed board members, Steve Brownell and Trish Brownell. The HOA was also ordered to reimburse the Petitioner for his $500.00 single-issue filing fee.
——————————————————————————–
Essay Questions
1. Trace the complete timeline of events described in the decision, beginning with the failed meeting on February 20, 2018, and concluding with the judge’s final order. For each key date, describe the event that occurred, the people involved, and the outcome of the event.
2. Analyze the conflicting interpretations of Arizona state law presented by the Petitioner and the Respondent. Explain which specific clauses of A.R.S. § 33-1813 and A.R.S. § 33-1804 each party relied upon to justify their position regarding the legality of the April 24, 2018 recall meeting.
3. The decision states that the case presents a “pure legal issue of statutory interpretation.” Explain what this means and how it affects the burden of proof. Describe in detail the canons of statutory construction cited by the judge and how she applied them to rule in favor of the Petitioner.
4. Discuss the role of the allegations of misconduct (disseminating false information and harvesting ballots) against the newly elected board members. How did these allegations act as a catalyst for the recall election, and what was their ultimate relevance (or lack thereof) to the final legal conclusion reached by the Administrative Law Judge?
5. Based on the judge’s “Conclusions of Law,” explain the definitive legal procedure for an HOA in Arizona, with 1,000 or fewer members, to initiate the removal of a board member. Detail the petition requirements, signature thresholds, and meeting notice timelines as established by the controlling statute, A.R.S. § 33-1813.
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent official who presides over administrative hearings, hears evidence, and makes legal decisions, in this case, Diane Mihalsky from the Office of Administrative Hearings.
A.R.S.
Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona.
Board of Directors
The governing body of the homeowners’ association, elected by the members.
Burden of Proof
The obligation on a party in a legal case to prove their allegations. In this matter, the Petitioner bore the burden of proof to establish the violation.
De Novo Review
A type of review where a court or judge decides the issues without reference to any legal conclusion or assumption made by the previous party in the case. This was applied because the issue was a pure matter of statutory interpretation.
Department
Refers to the Arizona Department of Real Estate, the state agency authorized to receive and decide on petitions from HOA members.
Evidentiary Standard
The level of proof required to convince the trier of fact. In this case, the standard was a “preponderance of the evidence.”
Homeowners’ Association (HOA)
The organization that governs the Carter Ranch development, of which all lot owners are members.
Office of Administrative Hearings
An independent state agency in Arizona where evidentiary hearings, like the one in this case, are conducted.
Petitioner
The party who initiates a legal action by filing a petition. In this case, it was homeowner Thomas J. Van Dan Elzen.
Preponderance of the Evidence
The standard of proof in which the trier of fact is convinced that a contention is more probably true than not.
Quorum
The minimum number of members of an association that must be present at a meeting for the proceedings of that meeting to be valid. In the March 20 election, the quorum was 47 homeowners.
Recall Election
A special vote held to determine whether to remove an elected official (in this case, board members) from office before the end of their term.
Respondent
The party against whom a petition is filed. In this case, it was the Carter Ranch Homeowners Association.
Special Meeting
A meeting of an association’s members called for a specific purpose outside of the regularly scheduled annual meetings. The April 24 recall vote was a special meeting.
Statutory Construction
The process of interpreting and applying legislation. The judge used common-law canons of statutory construction to resolve the conflict between the two A.R.S. sections.
Blog Post – 18F-H1818042-REL
Majority Rules? Not in This HOA: How One Homeowner Overturned a Recall Election on a Technicality
The Unruly World of Neighborhood Politics
In the world of Homeowners Associations, a majority vote is typically the final word. But for the Carter Ranch HOA, a 27-to-25 recall vote meant to oust two board members became the start of a legal battle, not the end. This case reveals a crucial lesson in community governance: when a board president’s unilateral action clashes with statutory procedure, the will of the majority can be rendered completely irrelevant.
A Democratic Vote Can Be Completely Ignored
On April 24, 2018, the Carter Ranch HOA held a special recall election targeting three recently elected board members: Roxanne Gould, Steve Brownell, and Trish Brownell. A quorum of 52 homeowners participated, and the vote was a split decision. Roxanne Gould survived the recall attempt, with 27 votes against her removal and 25 for it. However, Steve and Trish Brownell were successfully voted off the board by a clear majority of 27 to 25.
The twist came later, in a judge’s chambers. Despite the democratic outcome, an Administrative Law Judge ordered the HOA to reinstate the Brownells. This counter-intuitive decision wasn’t the result of voter fraud or a miscount. The entire election was nullified because of a critical procedural error made by the HOA president before a single ballot was cast.
An HOA President Can’t Unilaterally Oust Board Members
The conflict began after a heated board election on March 20, 2018. The board president at the time, Lance Van Horne, felt the election’s outcome was “compromised.” He believed three newly elected members had won their seats by disseminating “allegedly false information” and “harvesting of votes.”
In response, Mr. Van Horne took decisive action. Believing he was correcting a wrong, he personally called for a special meeting to hold a recall election. This unilateral action became the sole basis for the legal challenge that followed. While the president’s concerns about election integrity were the catalyst for the drama, the court’s subsequent decision would demonstrate that his motives were entirely irrelevant. The only thing that mattered was the procedure he followed—or in this case, failed to follow.
The “Specific Beats General” Rule Is King
The HOA’s legal defense rested on a general statute, A.R.S. § 33-1804, which grants an association’s president the power to call special meetings for various purposes. They argued this general power included the authority to call a recall meeting.
However, the homeowner who challenged the recall pointed to a different, more specific law. A.R.S. § 33-1813 is a statute written exclusively for the purpose of removing board members. This specific law dictates that a recall process can only be initiated upon receipt of a petition signed by a required number of homeowners. The president cannot simply decide to do it alone.
The judge’s decision hinged on a foundational principle of legal interpretation. As cited in the final order:
“When provisions of a general statute are inconsistent with those of a special nature on the same subject, the special statute controls.”
Because the HOA president initiated the recall without first receiving the required petition from the homeowners, he failed to follow the specific procedure mandated by law. As a result, the entire recall election was declared invalid from the start.
One Homeowner Can Successfully Challenge an Entire HOA
This entire case was set in motion not by a group of disgruntled residents, but by a single individual. Homeowner Thomas J. Van Dan Elzen filed a “single-issue petition” with the state, challenging the validity of the president’s action. His understanding of the specific rules governing board member removal proved to be the key that unraveled the HOA’s actions.
The final court order was a complete victory for the petitioner:
• His petition was granted.
• The Carter Ranch HOA was ordered to reinstate the two removed board members, Steve and Trish Brownell.
• The HOA was also ordered to reimburse the petitioner for his $500.00 filing fee.
This outcome serves as an empowering example of how a single member, armed with knowledge of the governing documents and statutes, can hold an association’s leadership accountable and ensure that proper procedures are followed.
Conclusion: Rules, Not Rulers
The Carter Ranch case is a powerful illustration that in community governance, established process is not a technicality—it is the bedrock of legitimacy. The board’s failure to adhere to the specific statute for recalls (A.R.S. § 33-1813) created a fatal procedural flaw that no amount of good intention or majority support could cure. This serves as a stark reminder for all HOA boards: power is derived from the meticulous application of rules, not the perceived authority of rulers. Ignoring this principle doesn’t just invalidate an action; it exposes the association to legal challenges, financial penalties, and a loss of credibility with the community it governs. Do you know the specific rules that govern your own community?
Case Participants
Petitioner Side
Thomas J. Van Dan Elzen(petitioner) Appeared on his own behalf
Respondent Side
Chad M. Gallacher(attorney) Maxwell & Morgan, P.C. Represented Respondent
Mary Chaira(Community Manager) Witness for Respondent
Lance Van Horne(Board President) Called the special recall election which led to the petition,,
Neutral Parties
Diane Mihalsky(ALJ)
Judy Lowe(Commissioner) Arizona Department of Real Estate Received decision
Felicia Del Sol(staff) Transmitted decision
Other Participants
Roxanne Gould(board member) Elected board member; subject of recall attempt,,
Steve Brownell(board member) Elected board member; removed by recall, reinstated by recommended order,,,
Trish Brownell(board member) Elected board member; removed by recall, reinstated by recommended order,,,
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
18F-H1817005-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2018-05-10
Administrative Law Judge
Tammy L. Eigenheer
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Gary W. Moselle
Counsel
—
Respondent
Desert Mountain Master Association
Counsel
Curtis Ekmark
Alleged Violations
A.R.S. § 33-1804
Outcome Summary
The Administrative Law Judge denied the petition, ruling that the DMMA Communication Committee was not subject to the open meetings law (A.R.S. § 33-1804) because it did not hold 'regularly scheduled meetings',,,.
Why this result: The committee met too infrequently and without regular intervals to be deemed 'regularly scheduled' for the purposes of A.R.S. § 33-1804(A),,.
Key Issues & Findings
Whether a Communications Committee meeting must be open to members under the open meetings law.
Petitioner alleged that Respondent violated the open meetings statute by closing the September 6, 2017 meeting of the Communications Committee. The issue was whether this committee constituted a 'regularly scheduled committee meeting' subject to A.R.S. § 33-1804(A),,,,.
Orders: Petitioner's petition was denied. The Administrative Law Judge concluded that the DMMA Communication committee did not hold 'regularly scheduled' meetings, meaning it was not subject to the open meetings law under A.R.S. § 33-1804,,,.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1804
A.R.S. Title 33, Chapter 16
A.R.S. § 32-2199 et seq.
A.A.C. R2-19-119
BLACK'S LAW DICTIONARY 1182 (6th ed. 1990)
State ex rel. Thomas v. Contes, 216 Ariz. 525, 527, 169 P.3d 115, 117 (App. 2007)
Marsoner v. Pima County, 166 Ariz. 486, 488, 803 P.2d 897, 899 (1991)
Analytics Highlights
Topics: HOA, Open Meetings Law, Committee Meetings, Statutory Interpretation, Planned Community
Additional Citations:
A.R.S. § 33-1804
A.R.S. Title 33, Chapter 16, Sections 33-1801 to 33-1818
A.R.S. § 32-2199 et seq.
A.A.C. R2-19-119
State ex rel. Thomas v. Contes, 216 Ariz. 525, 527, 169 P.3d 115, 117 (App. 2007)
Marsoner v. Pima County, 166 Ariz. 486, 488, 803 P.2d 897, 899 (1991)
Briefing on the Moselle v. Desert Mountain Master Association Case
Executive Summary
This document synthesizes two Administrative Law Judge Decisions regarding a dispute between homeowner Gary W. Moselle (Petitioner) and the Desert Mountain Master Association (DMMA or Respondent). The core of the case, No. 18F-H1817005-REL, is the legal interpretation of the phrase “regularly scheduled committee meetings” as it appears in Arizona’s open meeting statute for planned communities, A.R.S. § 33-1804.
The conflict arose when the DMMA Communications Committee held a closed meeting on September 6, 2017, which Mr. Moselle was barred from attending. He contended this violated the statute’s open meeting requirements. The DMMA argued the committee was exempt because its meetings were infrequent and not held at fixed intervals.
In two separate decisions—an initial ruling on December 7, 2017, and a second after a rehearing on May 10, 2018—Administrative Law Judge Tammy L. Eigenheer consistently ruled in favor of the DMMA. The judge concluded that “regularly scheduled” applies to meetings that occur at regular, predictable intervals (e.g., monthly, quarterly). Since the Communications Committee met only four times in two years without a set schedule, it was not subject to the open meeting law. The judge determined that the statute’s general policy favoring openness does not override its more specific provisions. Ultimately, the petitioner’s petition was denied.
Case Background and Timeline
The dispute proceeded through the Arizona Department of Real Estate and the Office of Administrative Hearings, culminating in a definitive ruling after a granted rehearing.
September 1, 2017
Gary W. Moselle files a petition with the Arizona Department of Real Estate, alleging DMMA violated open meeting laws.
September 6, 2017
The DMMA Communications Committee holds a closed meeting, which Mr. Moselle is not permitted to attend.
September 18, 2017
DMMA files an answer denying all allegations.
November 17, 2017
An initial hearing is conducted before Administrative Law Judge (ALJ) Tammy L. Eigenheer.
December 7, 2017
The ALJ issues a decision denying Mr. Moselle’s petition.
January 4, 2018
Mr. Moselle files a request for rehearing, citing “newly discovered material evidence” and arguing the decision was contrary to law.
January 26, 2018
The Department of Real Estate grants the request for a rehearing.
April 20, 2018
A rehearing is conducted before the ALJ.
May 10, 2018
The ALJ issues a final decision after rehearing, again denying Mr. Moselle’s petition.
Core Legal Issue: Interpretation of A.R.S. § 33-1804
The central legal question was whether the DMMA Communications Committee was subject to the open meeting requirements mandated by Arizona Revised Statute § 33-1804. The resolution of the case hinged on the interpretation of specific language within the statute.
Relevant Statutory Provisions
• A.R.S. § 33-1804(A): “Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association…”
• A.R.S. § 33-1804(F): “It is the policy of this state as reflected in this section that all meetings of a planned community… be conducted openly… Toward this end, any person or entity that is charged with the interpretation of these provisions… shall take into account this declaration of policy and shall construe any provision of this section in favor of open meetings.”
Arguments Presented by the Parties
The petitioner and respondent presented starkly different interpretations of the phrase “regularly scheduled.”
Petitioner’s Position (Gary W. Moselle)
• Definition of “Regularly Scheduled”: Mr. Moselle argued that “regularly scheduled” should be interpreted to mean a meeting scheduled in a “normal manner” or “ordinary fashion,” not necessarily one that recurs at fixed intervals.
• Primacy of Openness Policy: He emphasized the policy statement in A.R.S. § 33-1804(F), asserting that the statute’s clear preference for open meetings should guide the interpretation of any ambiguous terms.
• Arguments for Rehearing: In his request for a rehearing, Mr. Moselle cited newly discovered evidence (an email sent by the DMMA after the first hearing) and suggested the ALJ should evaluate whether the DMMA had misled the court regarding the Board’s actions on the committee’s recommendation.
Respondent’s Position (Desert Mountain Master Association)
• Definition of “Regularly Scheduled”: DMMA contended that the phrase “regularly scheduled” plainly refers to meetings that occur at regular, predictable intervals, “such as on the third Thursday of every month, quarterly, or even annually.”
• Evidence of Infrequent Meetings: As evidence, the DMMA testified that its Communications Committee met infrequently and without a fixed pattern, holding only four meetings in 2016 and 2017 (twice in April 2016, once in June 2017, and the contested meeting of September 6, 2017).
• Lack of Board Action: The DMMA further argued that a recommendation from the committee to the Board of Directors was not acted upon, which it presented as evidence that the committee was not “conducting any actual business of the Board.”
Administrative Law Judge’s Analysis and Rulings
Across both decisions, the Administrative Law Judge (ALJ) provided a consistent legal analysis that ultimately favored the respondent’s interpretation of the statute.
Initial Decision (December 7, 2017)
• The ALJ concluded that the DMMA Communications Committee does not hold “regularly scheduled meetings.”
• Based on this finding, the committee was deemed not subject to the open meetings law.
• The decision to hold a closed meeting on September 6, 2017, was therefore ruled not to be a violation of A.R.S. § 33-1804.
• The petitioner’s petition was denied.
Decision After Rehearing (May 10, 2018)
• Statutory Interpretation: The ALJ reaffirmed the conclusion that the “plain language” of A.R.S. § 33-1804(A) applies to meetings that “occur at regular intervals.” While acknowledging that “regularly scheduled” could have multiple meanings, the ALJ settled on this interpretation.
• Policy vs. Specifics: The decision explicitly states that the general policy favoring open meetings in subsection (F) “does not override the specific provisions of A.R.S. § 33-1804(A) that only ‘regularly scheduled’ committee meetings must be open to the members.”
• Petitioner’s Testimony: The ALJ noted that during the rehearing, Mr. Moselle’s own testimony on cross-examination appeared to support the court’s interpretation. When questioned about other DMMA committees, Mr. Moselle stated that five of them “meet at the request of the chair and they’re not regularly scheduled.”
• Final Ruling: The ALJ again concluded that the DMMA Communication Committee did not hold “regularly scheduled” meetings at the time of the incident and was therefore not in violation of the statute. The petition was denied for a final time.
Final Disposition
The petition filed by Gary W. Moselle against the Desert Mountain Master Association was denied. The Administrative Law Judge’s order of May 10, 2018, issued after the rehearing, was declared binding on the parties. As per the final notice, any further appeal would require a party to seek judicial review in superior court within thirty-five days of the order.
Study Guide – 18F-H1817005-REL-RHG
Study Guide: Moselle v. Desert Mountain Master Association
This guide provides a comprehensive review of the administrative case between Gary W. Moselle (Petitioner) and the Desert Mountain Master Association (Respondent) concerning Arizona’s open meetings law for planned communities. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms.
Short-Answer Quiz
Instructions: Answer the following questions in two to three sentences, based on the information provided in the case documents.
1. Who were the primary parties in this case, and what were their respective roles?
2. What specific event on September 6, 2017, prompted the Petitioner to file his complaint?
3. What specific Arizona statute did the Petitioner allege the Respondent had violated?
4. What was the Respondent’s primary argument for why its Communications Committee was not subject to the open meetings law?
5. How did the Petitioner, Gary W. Moselle, interpret the key statutory phrase “regularly scheduled committee meetings”?
6. What evidence did the Respondent present regarding the frequency of the Communications Committee’s meetings in 2016 and 2017?
7. What is the “preponderance of the evidence” standard, and which party had the responsibility to meet it?
8. What was the Administrative Law Judge’s final conclusion regarding the meaning of “regularly scheduled” in the context of the statute?
9. On what grounds did the Petitioner successfully request a rehearing after the initial decision was issued on December 7, 2017?
10. How did the judge weigh the general policy statement in A.R.S. § 33-1804(F) against the specific language in A.R.S. § 33-1804(A)?
——————————————————————————–
Answer Key
1. The primary parties were Gary W. Moselle, the Petitioner, and the Desert Mountain Master Association (DMMA), the Respondent. Mr. Moselle was a homeowner who filed a petition against the DMMA, which is the homeowners association for the community.
2. The Petitioner filed his complaint after he was not allowed to attend a “closed” meeting of the DMMA Communications Committee that was held on September 6, 2017. He alleged this violated Arizona’s open meeting statute.
3. The Petitioner alleged that the Respondent had violated Arizona Revised Statute (A.R.S.) § 33-1804. This statute governs open meetings for planned communities, such as homeowners associations.
4. The Respondent argued that the Communications Committee did not meet at regular, established intervals and therefore its meetings were not “regularly scheduled” as required by the statute to be open. They also asserted that the committee’s recommendation was not acted upon by the Board, suggesting it was not conducting official business.
5. The Petitioner argued that “regularly scheduled” should be interpreted to mean a meeting that was scheduled in a normal or ordinary fashion. He asserted this interpretation was supported by the statute’s general policy favoring open meetings.
6. The Respondent provided testimony that the Communications Committee met infrequently and without a set interval, having held only four meetings in 2016 and 2017. These meetings occurred twice in April 2016, once in June 2017, and on September 6, 2017.
7. “Preponderance of the evidence” is the standard of proof requiring evidence to show that a fact is more probable than not. In this proceeding, the Petitioner, Gary W. Moselle, bore the burden of proving the Respondent’s violation by a preponderance of the evidence.
8. The Administrative Law Judge concluded that the plain language of the statute meant “regularly scheduled” referred to meetings that occur at regular intervals, such as monthly, quarterly, or annually. The judge rejected the Petitioner’s alternate interpretation.
9. The Petitioner was granted a rehearing by citing newly discovered material evidence (an email sent after the first hearing) and arguing the need to evaluate whether the Respondent had misled the judge. He also contended that the initial decision was contrary to law.
10. The judge acknowledged the state’s policy favoring open meetings as stated in subsection (F). However, the judge ruled that this general policy statement did not override the specific provision in subsection (A) that only “regularly scheduled” committee meetings are required to be open.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for longer, more analytical responses. Formulate an essay-style answer for each, drawing upon the facts, arguments, and legal reasoning presented in the case documents.
1. Analyze the conflicting interpretations of the phrase “regularly scheduled” as presented by the Petitioner and the Respondent. Discuss the principles of statutory construction used by the Administrative Law Judge to resolve this dispute and explain why one interpretation was favored over the other.
2. Examine the procedural history of this case, from the initial petition filed with the Arizona Department of Real Estate to the final order issued after the rehearing. What were the key legal steps, decisions, and turning points in the process?
3. Discuss the evidence presented by the Desert Mountain Master Association to support its case. How did testimony regarding meeting frequency and the Board’s actions on committee recommendations contribute to the final outcome?
4. Explain the legal relationship between A.R.S. § 33-1804(A) and A.R.S. § 33-1804(F). Based on the judge’s decision, what is the hierarchy between a statute’s specific provisions and its general policy declarations?
5. During the rehearing, the Petitioner’s own testimony about other committees was noted by the Administrative Law Judge. Explain this apparent contradiction in the Petitioner’s argument and discuss its potential impact on the case.
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions on behalf of a government agency.
A.R.S. § 33-1804
The specific Arizona Revised Statute at the center of the dispute, which governs open meetings for planned communities and their boards of directors and committees.
Burden of Proof
The obligation of a party in a legal case to provide sufficient evidence to prove their allegations. In this case, the burden was on the Petitioner.
Conclusions of Law
The judge’s application of legal principles to the facts of the case to reach a decision.
Department of Real Estate
The Arizona state agency with jurisdiction to hear disputes between property owners and homeowners associations under A.R.S. § 32-2199 et seq.
Desert Mountain Master Association (DMMA)
The Respondent in the case; a homeowners association located in Scottsdale, Arizona, classified as a Planned Unit Development.
Findings of Fact
The determination of factual events made by a judge from the evidence presented in a trial or hearing.
Gary W. Moselle
The Petitioner in the case; a homeowner within the DMMA who filed the complaint.
Jurisdiction
The official power of a court or agency to hear a case and make legal decisions and judgments.
Open Meetings Law
A law, in this case A.R.S. § 33-1804, that requires meetings of certain entities to be open to all members or the public.
Petition
The formal written request filed with an administrative body or court to initiate a case.
Petitioner
The party who files a petition and initiates a legal action.
Planned Unit Development (PUD)
A type of real estate development and community governed by specific state laws, such as those in A.R.S. Title 33, Chapter 16.
Preponderance of the Evidence
The standard of proof in most civil and administrative cases, defined as evidence that is more convincing and shows a fact is more probable than not.
Rehearing
A second hearing of a case to reconsider the previous decision, typically granted due to new evidence or an argument of legal error.
Regularly Scheduled
The key statutory phrase in dispute. The judge interpreted it to mean meetings that occur at regular, established intervals (e.g., monthly, quarterly).
Respondent
The party against whom a petition is filed; the party defending against the complaint.
Statutory Construction
The process by which judges interpret and apply legislation. The primary goal is to ascertain the legislature’s intent, starting with the plain text of the statute.
Blog Post – 18F-H1817005-REL-RHG
Your HOA Committee Might Be Meeting in Secret—And It Could Be Perfectly Legal
As a homeowner in a planned community, you likely know you have the right to attend your HOA’s board of directors meetings. But what about the committee meetings? The finance, architectural, or communications committees often lay the critical groundwork for decisions that ultimately affect your property and fees. Do you have a right to observe their deliberations?
A recent legal case in Scottsdale, Arizona, hinged on the interpretation of a single, seemingly straightforward phrase and exposed a surprising rule about HOA transparency. The case, Moselle v. Desert Mountain Master Association, reveals critical lessons for any homeowner about the letter of the law and how it can sometimes create legal loopholes that allow committee meetings to happen behind closed doors.
——————————————————————————–
1. The Crucial Loophole: “Regularly Scheduled” Doesn’t Mean What You Think
The entire dispute rested on how to interpret the phrase “regularly scheduled committee meetings” as written in Arizona statute A.R.S. § 33-1804, which governs open meetings for planned communities.
The Homeowner’s Argument The petitioner, homeowner Gary Moselle, argued that when the Communications Committee of the Desert Mountain Master Association (DMMA) scheduled a meeting for September 6, 2017, it should be open to all members. His logic was simple: a meeting that is formally scheduled and placed on the calendar is, by any common-sense definition, a “regularly scheduled” meeting.
The HOA’s Counter-Argument The DMMA countered with a different interpretation. They argued that the phrase “regularly scheduled” implies a recurring, predictable pattern, such as meetings held monthly, quarterly, or on the third Thursday of every month. The association presented evidence that its Communications Committee met infrequently and without a set pattern, having convened only four times in 2016 and 2017. Because the meetings were sporadic, the HOA contended they were not “regularly scheduled” and therefore not subject to the open meeting law.
To bolster its case, the HOA added a second point: the committee’s work wasn’t essential to board business anyway. They noted that a recommendation from the committee was never acted upon by the board, suggesting the committee was not conducting “any actual business of the Board” and thus did not require the same level of transparency.
The Surprising Verdict Administrative Law Judge Tammy L. Eigenheer sided with the HOA. The final decision concluded that “regularly scheduled” refers to meetings that occur at regular intervals. This created a legal distinction: HOA committees that meet on a fixed, recurring schedule must be open, but those that meet on an as-needed basis may not be.
——————————————————————————–
2. A Law’s “Spirit” Can Be Trumped by Its “Letter”
Adding another layer to the case was the law’s own powerful statement about its intent. The petitioner pointed to a specific section of the statute designed to ensure transparency.
The Policy Statement The Arizona law contains a strong policy statement declaring that all HOA meetings should be conducted openly. It explicitly directs anyone interpreting the law to favor open meetings.
It is the policy of this state as reflected in this section that all meetings of a planned community… be conducted openly… Toward this end, any person or entity that is charged with the interpretation of these provisions… shall take into account this declaration of policy and shall construe any provision of this section in favor of open meetings.
The Legal Reasoning Despite this clear declaration, Judge Eigenheer ruled that a general policy statement does not override the specific and explicit language of the law. The statute does not say all committee meetings must be open; it says “regularly scheduled committee meetings” must be open. The judge concluded that this specific wording created a clear exception, and the broad policy in favor of transparency could not erase it.
The Impact This is a critical takeaway for understanding how laws are interpreted. This outcome reflects a fundamental principle of statutory construction: while the “spirit” or stated policy of a law provides guidance, it cannot override the plain meaning of the specific words—the “letter”—that the legislature chose to write.
——————————————————————————–
3. A Cautionary Tale: How a Petitioner Undermined His Own Case
The petitioner was granted a rehearing, giving him another chance to argue his case. However, a statement he made during his own testimony dramatically weakened his position.
The Key Testimony During the rehearing on April 20, 2018, the petitioner was asked about other committees within the DMMA. In explaining how they operated, he unintentionally adopted the very definition of “regularly scheduled” that the HOA was using against him. The judge recorded his exact words in the final decision:
…five of the committees listed in the Volunteer Request page “meet at the request of the chair and they’re not regularly scheduled.”
The Consequence The judge seized on this admission in the final ruling. The decision notes that while “regularly scheduled” could have multiple meanings, the petitioner himself used the phrase to differentiate between committees that meet at fixed intervals and those that do not. By describing committees that “meet at the request of the chair” as being “not regularly scheduled,” he validated the very interpretation the court was now adopting.
The Lesson This moment serves as a dramatic lesson in the power and precision of language in legal proceedings. In an attempt to describe the function of other committees, the petitioner inadvertently validated his opponent’s core legal argument.
——————————————————————————–
Conclusion: A Question of Transparency
The ruling in Moselle v. Desert Mountain Master Association clarifies a significant point in HOA governance. Under this legal interpretation, committees that meet on an ad-hoc basis or “at the call of the chair” may not be subject to open meeting laws. Only those committees that meet on a fixed, recurring schedule are explicitly required to be open to homeowners.
This ruling draws a bright line between standing committees with fixed schedules and ad-hoc committees that meet “at the call of the chair.” Homeowners should now ask: Which of our committees fall into this second category, and are we comfortable with decisions being shaped behind closed doors?
Case Participants
Petitioner Side
Gary W. Moselle(petitioner) Appeared on his own behalf
Respondent Side
Desert Mountain Master Association(respondent) Organizational party (HOA)
Petitioner won the statutory claim regarding access to association documents (A.R.S. § 33-1805(A)) and was refunded the $500 filing fee. Petitioner lost the claim regarding the failure to maintain exterior walls (CC&Rs) due to insufficient evidence.
Why this result: Petitioner failed to prove the maintenance issue by a preponderance of the evidence (for case 18F-H1818025-REL).
Key Issues & Findings
Failure to repair and maintain exterior walls
Petitioner alleged the HOA failed to repair damage (crack) to the exterior wall of his unit as required by the CC&Rs. The ALJ found that Petitioner failed to present sufficient evidence (black and white photographs did not clearly show the damage) to establish a violation.
Orders: Petitioner's petition in Case Number 18F-H1818025-REL is denied.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
CC&Rs
5
17
Failure to provide requested association records
Petitioner requested meeting notices and minutes in December 2017. Respondent's former management company failed to respond in a timely fashion. Petitioner established by a preponderance of the evidence that Respondent violated the statute.
Orders: Petitioner deemed the prevailing party in Case Number 18F-H1818027-REL. Respondent ordered to comply with A.R.S. § 33-1805(A) in the future and pay Petitioner the filing fee of $500.00.
Administrative Hearing Brief: Duffett vs. Suntech Patio Homes HOA
Executive Summary
This briefing document analyzes the Administrative Law Judge Decision in two consolidated cases filed by homeowner Rex E. Duffett against the Suntech Patio Homes Homeowners Association (HOA). The ruling presents a split decision, with the petitioner prevailing on one claim while failing to provide sufficient evidence for the other.
The first petition, concerning the HOA’s alleged failure to repair exterior walls, was denied. The petitioner failed to meet the burden of proof, as the submitted photographic evidence was unclear and did not sufficiently establish the existence or severity of the damage requiring immediate repair.
The second petition, concerning the HOA’s failure to provide association records upon request, was upheld. The judge found that the HOA, through its former management company, violated state law (A.R.S. § 33-1805(A)) by not responding to a formal document request within the mandated ten-business-day window.
As a result, Mr. Duffett was deemed the prevailing party in the records-request case. The HOA was ordered to pay his $500 filing fee and to ensure future compliance with the relevant statutes. The case highlights critical issues of evidence quality in homeowner disputes and demonstrates the legal liability an HOA retains for the failures of its management agents, particularly during periods of transition.
——————————————————————————–
Case Overview
Case Numbers
18F-H1818025-REL and 18F-H1818027-REL (Consolidated)
Petitioner
Rex E. Duffett
Respondent
Suntech Patio Homes Homeowners Association
Hearing Date
April 4, 2018
Decision Date
April 24, 2018
Presiding Judge
Administrative Law Judge Tammy L. Eigenheer
The hearing addressed two separate petitions filed by Rex E. Duffett with the Arizona Department of Real Estate:
1. Petition 1 (18F-H1818025-REL): Alleged the HOA violated community CC&Rs by failing to repair exterior walls of the petitioner’s unit.
2. Petition 2 (18F-H1818027-REL): Alleged the HOA violated A.R.S. § 33-1805(A) by failing to provide requested documents.
Petition 1: Failure to Repair Exterior Walls (Denied)
Petitioner’s Allegations and Evidence
• Core Claim: The petitioner alleged the HOA failed its duty, as defined by a March 1993 amendment to the CC&Rs, to maintain the exterior walls of his unit. The CC&Rs state, “The Suntech Patio Homeowners Association shall be responsible for the painting and maintenance of the following: A) Exterior walls of all units . . . .”
• Initial Request (July 14, 2017): Mr. Duffett faxed the HOA’s management company, The Management Trust, stating, “While inspecting the outside of my property I noticed a crack in the exterior wall. Please inspect, repair and paint the wall as soon as possible to prevent any damage which could result from rain water in the interior of the wall.”
• Follow-Up Request (August 21, 2017): In a certified letter, Mr. Duffett provided more detail, identifying a crack in the entryway wall allowing “rain water to seep into the interior wall,” a “bare concrete” area on the garage, and a previously cracked garage wall that had been repaired by a roofing company but not painted.
• Hearing Testimony: Mr. Duffett testified that a roofing company he hired to find a leak in his garage ceiling determined the source was not the roof but a crack in the exterior wall.
• Submitted Evidence: The petitioner submitted five black-and-white photographs of his home’s exterior across his two communications.
Respondent’s Position and Evidence
• Management Transition: Pride Community Management took over from The Management Trust on February 1, 2018. The new manager, Rebecca Stowers, and owner, Frank Peake, testified to a difficult transition where The Management Trust initially provided only one box of records, later discovering seven or eight more boxes in storage. Mr. Peake stated that Pride had not seen the petitioner’s communications regarding the damage until the hearing.
• Inspection: Ms. Stowers testified that she inspected the petitioner’s home on March 27, 2018. While she noted “a missing area of stucco on the front of the garage that needed to be repaired,” she “denied being able to identify a crack in the stucco anywhere else on the front of the house.”
• Community-Wide Repair Plan: Ms. Stowers stated that the HOA intended to repair the stucco and paint all exterior walls in the community during the 2018 calendar year at a projected cost of $46,000, to be funded potentially through a special assessment due to the HOA being underfunded.
Conclusion of Law and Ruling
• Burden of Proof: The Administrative Law Judge (ALJ) determined that the petitioner bore the burden of proving his claim by a preponderance of the evidence.
• Evidence Failure: The ALJ found the submitted evidence insufficient. The decision states: “The black and white photographs submitted at hearing did not clearly show the crack Petitioner alleged existed on the exterior wall of his unit… The Administrative Law Judge was unable to identify the location or severity of the alleged crack, and therefore, cannot conclude that such a crack exists and/or that it is necessary to be repaired immediately.”
• Final Ruling: The petitioner failed to meet his burden of proof. The petition in Case Number 18F-H1818025-REL was denied.
Petition 2: Failure to Provide Association Records (Upheld)
Petitioner’s Allegations and Evidence
• Core Claim: The petitioner alleged that the HOA violated A.R.S. § 33-1805(A), which requires an association to fulfill a request for records within ten business days.
• The Request (December 22, 2017): Mr. Duffett faxed The Management Trust a request for specific documents, citing a statement made by the HOA in a separate case. He requested copies of:
◦ Meeting notices and minutes for all meetings where “rules and regulations were discussed” in August/September 2017.
◦ Meeting notices and minutes for meetings where the last HOA dues increase was discussed.
◦ A copy of the notice for the last association rate increase.
Respondent’s Position and Evidence
• Lack of Awareness: The HOA’s initial response on January 29, 2018, indicated it had only become aware of the request upon receiving notice of the petition. The current management company, Pride, testified they had not seen the original communication from the petitioner.
• Vagueness of Request: Frank Peake of Pride testified that the request for minutes of meetings “where the rules and regulations were discussed” was unclear “because rules and regulations are discussed in some form at virtually every meeting of the association.”
• Claim of Privilege: The initial response from The Management Trust on January 29, 2018, claimed that the requested minutes were for “closed executive meetings and were only available to Board members.”
Conclusion of Law and Ruling
• Statutory Violation: The ALJ concluded that the petitioner clearly made a request for documents and that the HOA, via its former management company, failed to act as required by law.
• Failure of Former Management: The decision explicitly faults the prior management company: “The Management Trust should have responded or requested additional clarification of what documents Petitioner was requesting as it was the management company during the ten day window Respondent had to respond pursuant to the statute.”
• Final Ruling: The petitioner successfully established by a preponderance of the evidence that the HOA violated A.R.S. § 33-1805(A). Mr. Duffett was deemed the prevailing party in Case Number 18F-H1818027-REL.
Final Order and Implications
The Administrative Law Judge issued the following orders based on the conclusions of law:
Case Number
Subject
Ruling
18F-H1818025-REL
Exterior Wall Repairs
Petition Denied
18F-H1818027-REL
Document Request
Petitioner Deemed Prevailing Party
Directives to the Respondent (Suntech Patio Homes HOA):
1. Future Compliance: The HOA must comply with the provisions of A.R.S. § 33-1805(A) going forward.
2. Payment of Filing Fee: The HOA must pay the petitioner his filing fee of $500.00 within thirty (30) days of the order.
This order is considered binding on the parties unless a rehearing is granted.
Study Guide – 18F-H1818025-REL
Study Guide: Duffett v. Suntech Patio Homes HOA
This guide provides a comprehensive review of the Administrative Law Judge Decision in the consolidated cases of Rex E. Duffett v. Suntech Patio Homes Homeowners Association, Case Numbers 18F-H1818025-REL and 18F-H1818027-REL. The decision, issued by the Arizona Office of Administrative Hearings, addresses two separate petitions filed by a homeowner against his Homeowners Association (HOA), one concerning property maintenance and the other concerning access to association records.
——————————————————————————–
Quiz: Short-Answer Questions
Instructions: Answer the following questions in 2-3 complete sentences, drawing all information directly from the case decision.
1. Who were the primary parties in this administrative hearing, and what were their respective roles?
2. What were the two distinct allegations made by the Petitioner in the petitions that were consolidated for this hearing?
3. According to the community’s governing documents (CC&Rs), what specific responsibility did the HOA have regarding the exterior of residential units?
4. On what grounds did the Administrative Law Judge rule against the Petitioner in his claim for wall repairs (Case No. 18F-H1818025-REL)?
5. What specific Arizona statute did the Petitioner claim the HOA violated in his second petition regarding access to records (Case No. 18F-H1818027-REL)?
6. Describe the roles and performance of the two management companies, The Management Trust and Pride Community Management, as detailed in the hearing evidence.
7. What was the final outcome of the petition concerning the HOA’s failure to provide documents, and who was named the prevailing party?
8. What specific types of documents did the Petitioner request from the HOA in his fax dated December 22, 2017?
9. What was the legal standard of proof the Petitioner was required to meet, and for which petition did he successfully meet it?
10. What financial penalty was imposed upon the Respondent as part of the final Order?
——————————————————————————–
Answer Key
1. The Petitioner was Rex E. Duffett, a homeowner who filed the petitions. The Respondent was the Suntech Patio Homes Homeowners Association, the entity Mr. Duffett alleged had violated community rules and state law.
2. The first petition alleged that the HOA violated the CC&Rs by failing to respond to repeated requests for repairs to the exterior walls of his unit. The second petition alleged the HOA violated A.R.S. § 33-1805(A) by failing to provide requested association documents.
3. A March 1993 amendment to the CC&Rs states that the Suntech Patio Homeowners Association “shall be responsible for the painting and maintenance of the… Exterior walls of all units.”
4. The judge ruled against the Petitioner because he failed to establish his claim by a preponderance of the evidence. The black and white photographs submitted did not clearly show the alleged crack’s location or severity, so the judge could not conclude that a repair was immediately necessary.
5. The Petitioner claimed the HOA violated A.R.S. § 33-1805(A). This statute requires an association to make records reasonably available for examination and to provide copies of requested records within ten business days.
6. The Management Trust was the HOA’s management company when the incidents occurred and failed to properly respond to the Petitioner’s requests. Pride Community Management took over on February 1, 2018, and testified that the transition was difficult due to the sparse documentation initially provided by The Management Trust.
7. The judge ruled in favor of the Petitioner, deeming him the prevailing party in Case Number 18F-H1818027-REL. The judge ordered the HOA to comply with the applicable statute in the future.
8. The Petitioner requested copies of meeting notices and minutes for meetings where rules and regulations were discussed and where the last HOA dues increase was discussed. He also requested a copy of the notice of the last rate increase and any associated signed written consents.
9. The legal standard was “preponderance of the evidence,” defined as evidence with the most convincing force. The Petitioner failed to meet this standard for the wall repair petition but successfully met it for the document request petition.
10. The Respondent (HOA) was ordered to pay the Petitioner his filing fee of $500.00. The payment was to be made directly to the Petitioner within thirty days of the Order.
——————————————————————————–
Suggested Essay Questions
Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate a response using only the information and evidence presented in the provided decision.
1. Analyze the concept of “preponderance of the evidence” as it is defined and applied in this case. How did the quality of evidence submitted by the Petitioner lead to two different outcomes for his two petitions?
2. Discuss the role and responsibilities of a homeowners association’s management company, using the actions of The Management Trust and the subsequent challenges faced by Pride Community Management as primary examples. How did the transition between these two companies impact the case?
3. Evaluate the Respondent’s arguments and actions in both petitions. In the wall repair case, what was their stated plan, and why was it ultimately not considered by the judge? In the document request case, what was their defense, and why did it fail?
4. Based on the text of A.R.S. § 33-1805(A), explain the specific obligations of an HOA regarding member requests for records. Detail how the Suntech Patio Homes HOA, through its management, failed to meet these obligations, leading to the ruling against them.
5. Examine the communication breakdown between the Petitioner and the Respondent. Citing specific examples from the “Findings of Fact” and “Hearing Evidence” sections, explain how miscommunication and lack of timely response exacerbated the conflict.
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official who presides over administrative hearings, weighs evidence, and issues a legally binding decision. In this case, the ALJ was Tammy L. Eigenheer.
A.R.S. § 33-1805(A)
An Arizona Revised Statute that legally requires homeowners associations to make financial and other records available for member examination and to provide copies upon request within ten business days.
A.R.S. § 32-2199 et seq.
The section of the Arizona Revised Statutes that grants jurisdiction to the Arizona Department of Real Estate to hear disputes between homeowners and their associations.
Conditions, Covenants and Restrictions (CC&Rs)
The governing legal documents that establish the rules, obligations, and restrictions for a planned community and its homeowners association.
Consolidated for Hearing
A procedural step where two or more separate legal cases involving the same parties are combined into a single hearing for efficiency.
Department
Within the context of this case, refers to the Arizona Department of Real Estate, the state agency where the Petitioner initially filed his petitions.
The final, legally binding ruling issued by the Administrative Law Judge at the conclusion of the hearing.
Petitioner
The party who initiates a legal action by filing a petition. In this case, homeowner Rex E. Duffett.
Preponderance of the Evidence
The standard of proof required in this proceeding. It is met when the evidence presented has “the most convincing force” and is more likely true than not.
Prevailing Party
The party who is found to have won the legal dispute. The Petitioner was deemed the prevailing party in the document request case.
Respondent
The party against whom a petition is filed and who must respond to the allegations. In this case, the Suntech Patio Homes Homeowners Association.
Blog Post – 18F-H1818025-REL
A Homeowner Sued His HOA Over a Cracked Wall. He Lost Because of Bad Photocopies.
Introduction: The David vs. Goliath Battle Against Your HOA
For many homeowners, a dispute with their Homeowners Association (HOA) can feel like an uphill battle. It’s a common story of frustration, complex rules, and feeling unheard. The legal case of Rex E. Duffett versus the Suntech Patio Homes HOA is a perfect example, but with a twist. This isn’t just a story about winning or losing; it’s a fascinating cautionary tale filled with surprising lessons for any homeowner navigating a conflict with their association. This breakdown of the real-life administrative court decision reveals the unexpected details that can make or break a case.
——————————————————————————–
1. Takeaway #1: The Quality of Your Proof Matters More Than the Truth
The dispute began when Rex Duffett filed a petition alleging his HOA had failed to repair a crack in his exterior wall that he claimed was causing a water leak. According to the association’s own CC&Rs, maintaining exterior walls was the HOA’s responsibility. To document the problem, he diligently sent faxes and certified mail to the management company, including photographs of the damage.
Despite his efforts, the Administrative Law Judge denied his petition for repairs.
The reason was as surprising as it was simple: the evidence he submitted was not clear enough. The black and white copies of the photographs he provided at the hearing “did not clearly show any damage.” The judge’s finding was blunt and highlights a critical point for any legal dispute:
The Administrative Law Judge was unable to identify the location or severity of the alleged crack, and therefore, cannot conclude that such a crack exists and/or that it is necessary to be repaired immediately.
The lesson here is critical. In a legal dispute, having proof is not enough; the proof must be clear, convincing, and well-presented. Mr. Duffett’s primary case failed not because he was necessarily wrong, but because his evidence failed to persuade the judge. In an administrative hearing, a handful of high-resolution color photographs, or even a short video, would have provided irrefutable evidence and could have changed the entire outcome of his primary petition.
2. Takeaway #2: Your HOA is on the Hook for Its Management Company’s Failures
Mr. Duffett also filed a second petition against the HOA for failing to provide records he requested, such as meeting minutes. Under Arizona law (A.R.S. § 33-1805(A)), an association must fulfill such a request within ten business days. The HOA failed to do so.
The root of the problem was the HOA’s previous management company, “The Management Trust.” This company not only failed to respond to the homeowner’s request but also failed to notify the new management company about it. The relationship between the HOA and this vendor was so poor that the HOA had previously tried to terminate the contract, but the management company “refused to acknowledge the termination and held Respondent to the full two year contract.” The transition was chaotic; the old company initially provided only one box of information before later discovering “seven or eight more boxes” in storage.
Even though the management company was clearly at fault, the Judge ruled that the HOA violated the law. This provides a powerful insight for both boards and homeowners: an HOA cannot blame its vendors. Legally, the association is the responsible party. Hiring an incompetent or unresponsive management company creates significant legal and financial liability for the association and, by extension, every homeowner. This is not an abstract risk; in this case, the management company’s failure to forward a simple request directly led to a legal violation that cost the association—and thus, its members—the $500 filing fee ordered by the judge.
3. Takeaway #3: A “Win” Can Be More Complicated Than It Looks
When you look at the final outcome, Mr. Duffett’s case presents a nuanced picture of what a “win” really means in an HOA dispute. The judge issued a split decision:
• Petition for Repairs: Denied. The homeowner lost.
• Petition for Documents: The homeowner was deemed the “prevailing party.” He won.
As the prevailing party in the second petition, the homeowner received a clear victory. The judge ordered the HOA to comply with the document access law in the future and, crucially, to pay the homeowner back his $500 filing fee.
This highlights a common reality in legal disputes: a homeowner can secure a clear procedural victory (enforcing the right to documents and recovering fees) while simultaneously failing to achieve their core substantive goal (getting the wall repaired). The outcome shows that legal victories can be partial and may not address the real-world problem that initiated the dispute in the first place.
4. Takeaway #4: Vague Requests and Messy Records Create Chaos
This case is a masterclass in how poor communication from both sides can create a perfect storm of dysfunction.
First, the homeowner’s request for documents was “somewhat vague.” The new management company testified it was “unclear because rules and regulations are discussed in some form at virtually every meeting.” While the HOA still violated the law by failing to respond at all, this highlights a crucial lesson for homeowners: be as specific and clear as possible in all written communication to avoid ambiguity.
This vague request then ran headlong into the second problem: the HOA’s institutional chaos. The new Community Manager testified that the only relevant document they possessed was the minutes from a single meeting, and that “seven or eight more boxes” of records were missing after a disastrous transition between management companies. The homeowner’s ambiguous request met an organization that likely couldn’t have responded effectively even if it wanted to.
For both sides, meticulous documentation is a shield. For homeowners, a clear, specific, and undeniable paper trail strengthens their position. For HOA boards, organized records are essential for smooth operations, seamless transitions between management companies, and, most importantly, avoiding legal liability.
——————————————————————————–
Conclusion: The Devil is in the Details
The case of Duffett v. Suntech Patio Homes HOA is a powerful reminder that in legal disputes, the outcome often hinges on the small stuff. Small details—the quality of a photocopy, the precise wording of a request, the competence of a vendor, the location of a box of files—can have massive consequences. They can mean the difference between winning and losing, between getting a problem solved and walking away with only a partial victory.
This case shows how easily things can go wrong. The next time you’re in a dispute, what’s the one small detail you might be overlooking that could change everything?
Case Participants
Petitioner Side
Rex E. Duffett(petitioner)
Respondent Side
Nathan Tennyson(attorney) BROWN/OLCOTT, PLLC
Rebecca Stowers(property manager) Pride Community Management Community Manager
Frank Peake(property manager) Pride Community Management Owner of Pride
Shawn Mason(property manager) The Management Trust Former management company staff
Neutral Parties
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
LDettorre(ADRE staff) Arizona Department of Real Estate
AHansen(ADRE staff) Arizona Department of Real Estate
djones(ADRE staff) Arizona Department of Real Estate
DGardner(ADRE staff) Arizona Department of Real Estate
ncano(ADRE staff) Arizona Department of Real Estate
