The Petition was dismissed because the Petitioner failed to prove, by a preponderance of the evidence, that the Respondent Association violated the cited CC&R provisions by refusing to manage the disputed area, which the ALJ determined was a limited common element.
Why this result: The Petitioner lost because the area in dispute was determined to be a 'limited common element' (a balcony serving Unit 207) under Arizona statute (A.R.S. § 33-1212(A)), not a 'common area' the Association was required to manage under the referenced CC&Rs.
Key Issues & Findings
Refusal to manage, operate, maintain and administer common area
Petitioner alleged the HOA violated multiple CC&Rs by refusing to maintain an area between Unit 206 and Unit 207, which he claimed was a common area. The HOA argued the area was a limited common element. The ALJ concluded, relying on A.R.S. § 33-1212(A), that the disputed area was a limited common element (a balcony) allocated exclusively to Unit 207, thus Petitioner failed to establish a CC&R violation.
Orders: Petitioner's Petition is dismissed. Petitioner bears his $500.00 filing fee.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1212(A)
CC&Rs Article 1, Section 1.5
CC&Rs Article 1, Section 1.6
CC&Rs Article 3, Section 3.4
CC&Rs Article 4, Section 4.1
CC&Rs Article 8, Section 8.1
CC&Rs Article 12, Section 12.4
Analytics Highlights
Topics: condominium, common elements, limited common elements, balcony dispute, CC&R violation, A.R.S. 33-1212
The Respondent's Motion to Dismiss was granted because the statute cited by Petitioners (A.R.S. § 33-1817(B)(2)(b)) regarding mandatory design approval meetings applies only to the construction or rebuild of the 'main residential structure,' not to a shed.
Why this result: The key statute relied upon by Petitioners was deemed inapplicable to the construction of a shed.
Key Issues & Findings
Failure to provide opportunity to participate in design approval meeting for replacement shed
Petitioners alleged they were not given the opportunity to participate in a final design approval meeting for building a replacement shed on their property, pursuant to A.R.S. § 33-1817(B)(2)(b).
Orders: Respondent’s Motion to Dismiss is granted and Petitioners’ Petition is dismissed.
Do I need HOA approval to replace an old structure (like a shed) that was approved years ago?
Short Answer
Yes. Prior approval of an original structure does not automatically apply to a replacement, especially if the location or condition changes.
Detailed Answer
Even if a structure was approved in the past, building a replacement is considered a new improvement or alteration. The ALJ found that despite having a shed approved in 2005, the homeowners were required to seek approval for the new shed, particularly because the governing documents stated that no improvements or alterations could be made without prior written approval.
Alj Quote
All subsequent additions to or changes or alterations in any building, fence, wall or other structure … shall be subject to the prior written approval of the Design Review Committee.
Legal Basis
CC&Rs Article 4, Section 4.1(a)
Topic Tags
Architectural Review
Improvements
Grandfathering
Question
Is the HOA required to hold a 'final design approval meeting' for backyard projects like sheds?
Short Answer
No. The legal requirement for a design approval meeting applies only to the main residential structure.
Detailed Answer
The ALJ clarified that A.R.S. § 33-1817(B)(2)(b), which mandates a design approval meeting, is specific to the new construction or rebuild of the 'main residential structure.' It does not apply to ancillary structures like sheds.
Alj Quote
The Administrative Law Judge concludes that A.R.S. § 33-1817(B)(2)(b) contains a mandate for a “design approval” meeting in the circumstance of construction of a “main residential structure.” That was not the circumstance in this case.
Legal Basis
A.R.S. § 33-1817(B)(2)(b)
Topic Tags
Meetings
Statutory Interpretation
Homeowner Rights
Question
Can I move an approved structure to a different location on my lot without new approval?
Short Answer
No. Moving a structure is considered a change that must adhere to current guidelines and receive approval.
Detailed Answer
The HOA successfully argued that an approval from 2005 was for a specific location and condition. Moving the structure constitutes a change that requires adherence to current guidelines.
Alj Quote
Again, the shed that was approved in 2005 cannot move or change- it is not denied, it simply cannot be moved or change. Any changes must adhere to the guidelines and be approved.
Legal Basis
CC&Rs / Design Guidelines
Topic Tags
modifications
Architectural Review
Compliance
Question
Who bears the burden of proof when a homeowner challenges an HOA in a hearing?
Short Answer
The homeowner (Petitioner) bears the burden of proving the HOA violated the law.
Detailed Answer
In an administrative hearing, it is up to the homeowner to provide evidence that carries more weight than the evidence offered by the HOA to prove a violation occurred.
Alj Quote
In this proceeding, pursuant to Arizona Administrative Code (A.A.C.) R2-19-119, Petitioners bear the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. §§ 33-1803 and 33-1817(B)(2)(b).
Legal Basis
A.A.C. R2-19-119
Topic Tags
Legal Procedure
Burden of Proof
Hearings
Question
Can the HOA restrict the height and placement of backyard sheds?
Short Answer
Yes. The HOA can enforce specific design guidelines regarding dimensions and location relative to neighbors and the street.
Detailed Answer
The ALJ upheld the validity of Design Guidelines that mandated maximum heights and specific lot placements to ensure conformity with city codes and minimize visibility.
Alj Quote
Sundance Design Guidelines regarding “sheds” mandates: (a) a maximum height, including the roof pitch, of no more than eight (8) feet, … [and] (c) lot placement has to conform to City codes and have approval from the Design Committee “based on neighboring properties and visibility from the street,”
Legal Basis
Design Guidelines
Topic Tags
Architectural Guidelines
Restrictions
Property Use
Question
What happens if I start construction without approval?
Short Answer
The HOA may issue violation notices, impose fines, and require the structure be returned to its original state.
Detailed Answer
The ALJ noted that the HOA acted within its rights to issue violation notices and fines when it discovered unapproved construction. They also warned the homeowner to return the property to its original state.
Alj Quote
If the work has been started or completed, you will have 30 days from the date of this letter to have the submitted items returned to the original state. Or fines will be imposed.
Legal Basis
A.R.S. § 33-1803
Topic Tags
Violations
Fines
Enforcement
Case
Docket No
21F-H2120012-REL
Case Title
Anthony & Karen Negrete v. Sundance Ranch Homeowners Association
Decision Date
2020-12-13
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE
Questions
Question
Do I need HOA approval to replace an old structure (like a shed) that was approved years ago?
Short Answer
Yes. Prior approval of an original structure does not automatically apply to a replacement, especially if the location or condition changes.
Detailed Answer
Even if a structure was approved in the past, building a replacement is considered a new improvement or alteration. The ALJ found that despite having a shed approved in 2005, the homeowners were required to seek approval for the new shed, particularly because the governing documents stated that no improvements or alterations could be made without prior written approval.
Alj Quote
All subsequent additions to or changes or alterations in any building, fence, wall or other structure … shall be subject to the prior written approval of the Design Review Committee.
Legal Basis
CC&Rs Article 4, Section 4.1(a)
Topic Tags
Architectural Review
Improvements
Grandfathering
Question
Is the HOA required to hold a 'final design approval meeting' for backyard projects like sheds?
Short Answer
No. The legal requirement for a design approval meeting applies only to the main residential structure.
Detailed Answer
The ALJ clarified that A.R.S. § 33-1817(B)(2)(b), which mandates a design approval meeting, is specific to the new construction or rebuild of the 'main residential structure.' It does not apply to ancillary structures like sheds.
Alj Quote
The Administrative Law Judge concludes that A.R.S. § 33-1817(B)(2)(b) contains a mandate for a “design approval” meeting in the circumstance of construction of a “main residential structure.” That was not the circumstance in this case.
Legal Basis
A.R.S. § 33-1817(B)(2)(b)
Topic Tags
Meetings
Statutory Interpretation
Homeowner Rights
Question
Can I move an approved structure to a different location on my lot without new approval?
Short Answer
No. Moving a structure is considered a change that must adhere to current guidelines and receive approval.
Detailed Answer
The HOA successfully argued that an approval from 2005 was for a specific location and condition. Moving the structure constitutes a change that requires adherence to current guidelines.
Alj Quote
Again, the shed that was approved in 2005 cannot move or change- it is not denied, it simply cannot be moved or change. Any changes must adhere to the guidelines and be approved.
Legal Basis
CC&Rs / Design Guidelines
Topic Tags
modifications
Architectural Review
Compliance
Question
Who bears the burden of proof when a homeowner challenges an HOA in a hearing?
Short Answer
The homeowner (Petitioner) bears the burden of proving the HOA violated the law.
Detailed Answer
In an administrative hearing, it is up to the homeowner to provide evidence that carries more weight than the evidence offered by the HOA to prove a violation occurred.
Alj Quote
In this proceeding, pursuant to Arizona Administrative Code (A.A.C.) R2-19-119, Petitioners bear the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. §§ 33-1803 and 33-1817(B)(2)(b).
Legal Basis
A.A.C. R2-19-119
Topic Tags
Legal Procedure
Burden of Proof
Hearings
Question
Can the HOA restrict the height and placement of backyard sheds?
Short Answer
Yes. The HOA can enforce specific design guidelines regarding dimensions and location relative to neighbors and the street.
Detailed Answer
The ALJ upheld the validity of Design Guidelines that mandated maximum heights and specific lot placements to ensure conformity with city codes and minimize visibility.
Alj Quote
Sundance Design Guidelines regarding “sheds” mandates: (a) a maximum height, including the roof pitch, of no more than eight (8) feet, … [and] (c) lot placement has to conform to City codes and have approval from the Design Committee “based on neighboring properties and visibility from the street,”
Legal Basis
Design Guidelines
Topic Tags
Architectural Guidelines
Restrictions
Property Use
Question
What happens if I start construction without approval?
Short Answer
The HOA may issue violation notices, impose fines, and require the structure be returned to its original state.
Detailed Answer
The ALJ noted that the HOA acted within its rights to issue violation notices and fines when it discovered unapproved construction. They also warned the homeowner to return the property to its original state.
Alj Quote
If the work has been started or completed, you will have 30 days from the date of this letter to have the submitted items returned to the original state. Or fines will be imposed.
Legal Basis
A.R.S. § 33-1803
Topic Tags
Violations
Fines
Enforcement
Case
Docket No
21F-H2120012-REL
Case Title
Anthony & Karen Negrete v. Sundance Ranch Homeowners Association
Decision Date
2020-12-13
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Anthony Negrete(petitioner)
Karen Negrete(petitioner)
Respondent Side
Quinten Cupps(HOA attorney) Sundance Ranch Homeowners Association
Neutral Parties
Kay A. Abramsohn(ALJ) OAH
Judy Lowe(Commissioner) Arizona Department of Real Estate
The petition was affirmed in part (Complaint #1) and denied in part (Complaint #2). The Respondent HOA was found to have improperly conducted non-privileged business via email/unanimous written consent in violation of A.R.S. § 33-1804. The HOA was ordered to reimburse the $500 filing fee and comply with the statute, but no civil penalty was imposed.
Why this result: Petitioner failed to establish by a preponderance of the evidence the alleged violation concerning the improper use of emergency executive sessions (Complaint #2).
Key Issues & Findings
Non-privileged Association Business Conducted in Closed Session
The HOA improperly conducted association business, which should have been open to members, through unanimous written consent solicited via individual emails during the COVID-19 shutdown, violating the open meeting requirements of A.R.S. § 33-1804.
Orders: Respondent was ordered to comply with the requirements of A.R.S. § 33-1804 going forward and to reimburse Petitioner her $500.00 filing fee for the issue on which she prevailed.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. 33-1804
A.R.S. 10-3821
Analytics Highlights
Topics: Open Meetings, HOA Governance, Unanimous Written Consent, COVID-19, Executive Session
Additional Citations:
A.R.S. 33-1804
A.R.S. 10-3821
A.R.S. 32-2199 et seq.
A.A.C. R2-19-119
Video Overview
Audio Overview
Decision Documents
21F-H2120001-REL Decision – 838004.pdf
Uploaded 2026-01-23T17:34:04 (125.4 KB)
Briefing Doc – 21F-H2120001-REL
Administrative Law Decision Briefing: Morin vs. Solera Chandler Homeowners’ Association
Executive Summary
This briefing synthesizes the findings and rulings from an administrative law case involving a homeowner, Debra K. Morin, and the Solera Chandler Homeowners’ Association, Inc. (HOA). The central issue was whether the HOA Board of Directors violated Arizona’s open meeting law (A.R.S. § 33-1804) by conducting association business and making decisions without open meetings accessible to its members.
The Administrative Law Judge (ALJ) ultimately ruled in favor of the petitioner on her primary complaint. The investigation and subsequent hearings revealed that the HOA Board, citing the challenges of the COVID-19 pandemic, utilized a process of “unanimous written consent” to approve numerous actions. This process, facilitated through individual emails to board members, was found to be an improper substitute for the open meetings required by law. The ALJ concluded that the specific transparency requirements for homeowners’ associations in A.R.S. § 33-1804 supersede the more general provisions for non-profit corporations in A.R.S. § 10-3821, which the HOA had cited as justification.
While the violation was established, no civil penalty was assessed due to the “unprecedented global pandemic.” The HOA was ordered to comply with the open meeting law moving forward and to reimburse the petitioner’s $500 filing fee. A second complaint from the petitioner, alleging the improper use of emergency executive sessions, was not proven and was therefore denied. A rehearing clarified the precise method of the violation—email voting rather than conference calls—but did not alter the final judgment.
Case Background and Allegations
This matter was adjudicated by the Arizona Office of Administrative Hearings following a petition filed on July 10, 2020. The case centered on the actions of the Solera Chandler HOA’s Board of Directors between March and August 2020.
• Petitioner: Debra K. Morin
• Respondent: Solera Chandler Homeowners’ Association, Inc.
• Case Number: 21F-H2120001-REL
• Key Dates:
◦ Initial Hearing: October 29, 2020
◦ Initial Decision: November 18, 2020
◦ Rehearing: February 25, 2021
◦ Final Decision After Rehearing: March 17, 2021
Petitioner’s Formal Complaints
After being ordered to clarify her initial filing, the petitioner proceeded with two specific alleged violations of A.R.S. § 33-1804:
1. Complaint #1: Non-Privileged Business in Closed Sessions: The petitioner alleged that the HOA Board conducted non-privileged association business in closed sessions by using unanimous written consent. This practice circumvented statutory requirements for providing members with agendas, giving 48-hour notice, and allowing them an opportunity to speak on key issues before the Board took action.
2. Complaint #2: Improper Emergency Executive Sessions: The petitioner alleged that the HOA Board conducted privileged business under the guise of “emergency executive sessions.” This was done without properly identifying the legal exception to the open meeting law, providing an agenda or 48-hour notice, or submitting minutes at the next board meeting that stated the reason for the emergency.
Key Evidence and Factual Findings
The evidence presented centered on the HOA’s governance practices during the initial months of the COVID-19 pandemic.
Respondent’s Justification
The HOA’s defense rested on two main arguments:
• The COVID-19 pandemic made it impossible for the Board to meet in person, necessitating alternative methods to conduct business while protecting the health of directors and members.
• The use of unanimous written consents was authorized under A.R.S. § 10-3821, a statute that permits non-profit corporations to take action without a formal meeting if all directors consent in writing. The HOA acknowledged it had not used this method before the pandemic and did not intend to continue its use.
Unanimous Written Consents
At an open Board of Directors meeting on August 5, 2020, the Board formally ratified a series of actions taken via unanimous written consent during the “Covid 19 Shutdown.” A rehearing clarified the precise mechanism: a community management company would email each board member individually to solicit a “yes” or “no” vote on a proposal. If all votes were “yes,” the Board President would sign the written consent on behalf of the Board.
The actions taken through this process included:
Action Taken by Unanimous Written Consent
March 30, 2020
Approve repair and replacement of the sidewalk and community center entrance.
March 30, 2020
Approve repair and replacement of cool decking surrounding both pools.
April 30, 2020
Approve Kirk Sandquist as a member of the Architectural Review Committee.
April 30, 2020
Approve Tom Dusbabek as a member of the Architectural Review Committee.
May 5, 2020
Approve the Gilbert Road retention basin project, related irrigation replacement, and the addition of 420 tons of granite.
May 8, 2020
Approve replacement of a Carrier 6-ton heat pump.
May 8, 2020
Approve replacement of two Carrier 5-ton heat pumps.
May 27, 2020
Approve hiring Ken Eller to draft architectural drawings.
June 4, 2020
Approve a change to the Design Guidelines at the request of the Architectural Review Committee.
July 1, 2020
Approve the 2020 summer hardwood pruning and removal of trees.
Executive Sessions
The Board held numerous executive (closed) sessions during this period, including on March 13, March 16, March 19, March 24, April 6, April 10, May 4, May 15, May 27, June 24, and August 5, 2020. An “emergency executive session” was held on May 12, 2020. The agendas for these meetings cited specific legal exceptions under A.R.S. § 33-1804(A) as justification for the closure.
Legal Analysis and Rulings
The Administrative Law Judge’s decision hinged on the interpretation and primacy of two competing Arizona statutes.
The Core Statutory Conflict
• A.R.S. § 33-1804 (HOA Open Meeting Law): This statute establishes a strong state policy that all HOA board and member meetings “be conducted openly.” It mandates that members receive at least 48-hours’ notice, be provided with agendas, and be permitted to “attend and speak at an appropriate time.” The statute explicitly directs that any interpretation of its provisions must be construed “in favor of open meetings.”
• A.R.S. § 10-3821 (Action Without Meeting for Non-Profits): This statute, which applies more broadly to non-profit corporations, allows a board of directors to take action without a meeting if the action is approved by one or more written consents signed by all directors.
Ruling on Complaint #1 (Violation Established)
The ALJ concluded that the petitioner had proven by a preponderance of the evidence that the HOA violated the open meeting law. The core of the ruling is that the specific requirements of A.R.S. § 33-1804 for homeowners’ associations must be followed, even if A.R.S. § 10-3821 provides a different mechanism for general non-profits.
The final decision states: “Respondent improperly conducted association business in closed sessions via email rather than in meetings open to the members.” The use of email voting to achieve unanimous consent was deemed a violation because it denied members the notice, agenda, and opportunity to speak that are guaranteed by the HOA open meeting law.
However, the ALJ gave “consideration to the fact that Respondent was faced with an unprecedented global pandemic” and found that “no civil penalty is appropriate given the circumstances.”
Ruling on Complaint #2 (Violation Not Established)
The ALJ found that the petitioner failed to prove by a preponderance of the evidence that the Board conducted improper emergency executive sessions. The decision notes that there was “nothing in the record” to suggest the Board discussed topics outside the legally permitted exceptions for closed sessions, nor was there evidence to suggest the May 12, 2020, meeting was not a genuine emergency.
Final Order and Disposition
The final judgment, issued after the rehearing, is binding on both parties.
• Outcome: The petitioner’s petition was affirmed in part (regarding Complaint #1) and denied in part (regarding Complaint #2).
• Directives to Respondent (HOA):
1. The HOA is ordered to reimburse the petitioner’s $500.00 filing fee.
2. The HOA is directed to comply with the requirements of A.R.S. § 33-1804 going forward.
• Appeal: Any appeal of the final order must be filed for judicial review with the superior court within 35 days from the date of service.
Study Guide – 21F-H2120001-REL
Study Guide: Morin v. Solera Chandler Homeowners’ Association, Inc.
This guide provides a detailed review of the administrative case between Debra K. Morin (Petitioner) and the Solera Chandler Homeowners’ Association, Inc. (Respondent), as detailed in Administrative Law Judge Decisions No. 21F-H2120001-REL and No. 21F-H2120001-REL-RHG. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a comprehensive understanding of the case’s facts, legal arguments, and outcomes.
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Short-Answer Quiz
Instructions: Answer the following questions in two to three complete sentences, based only on the information provided in the source documents.
1. Who were the primary parties in this case, and what were their respective roles?
2. What was the central accusation in the Petitioner’s first complaint against the Respondent?
3. What two primary justifications did the Respondent provide for its actions during the COVID-19 pandemic?
4. According to the findings of the rehearing, what specific procedure did the Respondent use to obtain “unanimous written consents”?
5. Identify the two main Arizona Revised Statutes (A.R.S.) that were central to the legal dispute and briefly describe the function of each.
6. What was the final ruling on Complaint #1, and what was the judge’s reasoning?
7. Why did the Petitioner fail to prove the allegations in Complaint #2?
8. What specific factual error in the first Administrative Law Judge Decision prompted the Respondent to request a rehearing?
9. What two orders were issued against the Respondent in the final decision?
10. What specific circumstance did the Administrative Law Judge cite as a reason for not imposing a civil penalty on the Respondent?
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Answer Key
1. The primary parties were Debra K. Morin, the Petitioner and homeowner, and the Solera Chandler Homeowners’ Association, Inc., the Respondent. The Petitioner filed a petition with the Arizona Department of Real Estate alleging the Respondent violated state law, while the Respondent defended its actions before an Administrative Law Judge.
2. The Petitioner’s first complaint accused the Solera Homeowners’ Association Board of Directors of conducting non-privileged association business in closed sessions. Specifically, she alleged they used unanimous written consent to take action without providing agendas, giving 48-hour notice, or allowing members an opportunity to speak on key issues.
3. The Respondent argued that the COVID-19 pandemic prevented the Board of Directors from meeting in person to protect the health of members and directors. The Respondent also asserted that its use of unanimous written consents was legally authorized for non-profit corporations under A.R.S. § 10-3821.
4. The rehearing established that an individual from the community management company would email each Board member individually to request a “yes” or “no” vote on a proposal. If all members replied “yes,” the item was considered passed by unanimous consent, and the Board President would sign the formal consent document.
5. The central statutes were A.R.S. § 33-1804 and A.R.S. § 10-3821. A.R.S. § 33-1804 is the state’s open meeting law for homeowners’ associations, requiring meetings to be open to members with proper notice, while A.R.S. § 10-3821 allows the board of a non-profit corporation to take action without a meeting if all directors provide written consent.
6. The judge ruled in favor of the Petitioner on Complaint #1, affirming the violation. The judge reasoned that while A.R.S. § 10-3821 allows for action without a meeting, the more specific requirements of A.R.S. § 33-1804 mandate that all HOA board meetings be open to members, a requirement the Respondent violated by conducting business via email.
7. The Petitioner failed to prove Complaint #2 because she did not establish by a preponderance of the evidence that the Respondent’s executive sessions were improper. The judge found nothing in the record to suggest the Board discussed issues outside the legal exceptions listed in A.R.S. § 33-1804(A) or that the May 12, 2020, session was not a genuine emergency.
8. The Respondent requested a rehearing to correct a finding in Conclusion of Law 8 of the initial decision, which incorrectly stated that the association business at issue was conducted in closed sessions via “conference calls.” The Respondent acknowledged using conference calls for executive sessions but denied using them for the actions taken by unanimous written consent.
9. The Respondent was ordered to reimburse the Petitioner’s $500.00 filing fee for the issue on which she prevailed. Additionally, the Respondent was directed to comply with all requirements of A.R.S. § 33-1804 in the future.
10. The Administrative Law Judge gave consideration to the fact that the Respondent was “faced with an unprecedented global pandemic while balancing the need to comply with the applicable statutes and conduct association business.” Because of these unique circumstances, the judge found that no civil penalty was appropriate.
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Suggested Essay Questions
1. Discuss the conflict between A.R.S. § 33-1804 and A.R.S. § 10-3821 as it relates to the actions of the Solera Chandler Homeowners’ Association. How did the Administrative Law Judge resolve this conflict, and what does this imply about the hierarchy of state laws governing specific entities versus general corporations?
2. Analyze the Respondent’s argument that the COVID-19 pandemic justified their actions. To what extent did the Administrative Law Judge accept this argument, and how did it influence the final order?
3. Explain the legal standard of “preponderance of the evidence” and detail how it was applied to both Complaint #1 and Complaint #2. Why did the Petitioner meet this burden for the first complaint but not the second?
4. Trace the evolution of the case from the initial hearing to the rehearing. What specific finding of fact was corrected, and why was this correction significant for the legal record, even though it did not change the ultimate outcome for either complaint?
5. Based on the text of A.R.S. § 33-1804(F), discuss the stated policy of the state of Arizona regarding homeowner association meetings. How did the Respondent’s actions, specifically the use of email for unanimous consents, contravene this policy?
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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 and orders. In this case, Tammy L. Eigenheer served as the ALJ.
A.R.S. § 10-3821
An Arizona Revised Statute that allows the board of directors of a non-profit corporation to take action without a formal meeting, provided the action is taken by all directors and evidenced by one or more written consents.
A.R.S. § 33-1804
An Arizona Revised Statute, also known as the open meeting law for planned communities, which mandates that all meetings of an HOA board of directors must be open to all members. It requires 48-hour notice and allows for closed “executive sessions” only for specific, limited purposes.
Burden of Proof
The obligation on a party in a legal case to prove their allegations. In this proceeding, the Petitioner bore the burden of proving her claims.
Executive Session
A portion of a meeting that is closed to association members. Under A.R.S. § 33-1804(A), executive sessions are only permitted for specific reasons, such as receiving legal advice, discussing pending litigation, or addressing confidential personal or financial information.
Open Meeting
A meeting of an HOA’s board of directors that, according to A.R.S. § 33-1804, must be open to all members of the association, who must be permitted to attend and speak.
Petitioner
The party who initiates a legal action or petition. In this case, the Petitioner was homeowner Debra K. Morin.
Preponderance of the Evidence
The standard of proof required in this administrative hearing. It is defined as evidence that is of greater weight or more convincing than opposing evidence, showing that the fact sought to be proved is “more probable than not.”
Rehearing
A second hearing of a case to re-examine specific issues or correct errors from an initial decision. A rehearing was granted in this case to clarify how the unanimous written consents were executed.
Respondent
The party against whom a petition is filed. In this case, the Respondent was the Solera Chandler Homeowners’ Association, Inc.
Statutory Construction
The process of interpreting and applying legislation. The judge noted that the primary goal is to ascertain the legislature’s intent, first by looking at the statute’s plain language.
Unanimous Written Consent
A procedure, authorized by A.R.S. § 10-3821, where a board takes action without a meeting through written consents signed by all directors. The HOA used this method via individual emails to approve business, which was found to be a violation of HOA open meeting laws.
Blog Post – 21F-H2120001-REL
She Sued Her HOA Over Secret Pandemic Votes—And Won. Here’s What Every Homeowner Needs to Know.
Introduction: The Closed Doors of Your HOA
For many homeowners, it can feel like their Homeowners’ Association (HOA) board makes its most important decisions behind closed doors. You see the results—a new rule, a major repair project, a change in vendors—but the discussion and the vote happen out of sight. While the COVID-19 pandemic forced many organizations to find new ways to operate, for one Arizona HOA, their adaptation to remote work crossed a legal line, sparking a legal challenge from a resident.
The central conflict was straightforward: a homeowner, Debra K. Morin, filed a petition against the Solera Chandler Homeowners’ Association. She alleged they were making official decisions in secret through email, violating state law that guarantees homeowners the right to open meetings. While not all of her claims were affirmed, her primary complaint—that the board was conducting business in secret—led to a landmark decision for homeowner rights. The outcome of her case reveals several surprising and crucial lessons for every person living in an HOA community.
Takeaway 1: An HOA’s Open Meeting Law Trumps General Non-Profit Rules
1. Even a Pandemic Doesn’t Suspend a Homeowner’s Right to an Open Meeting
The Solera Chandler HOA board believed it was acting within the law. They argued that because they were a non-profit corporation, they could make decisions using “unanimous written consents” without a formal meeting. This practice is allowed for many non-profits under a general Arizona statute (A.R.S. § 10-3821). During the pandemic, this seemed like a practical way to conduct business without meeting in person.
However, the Administrative Law Judge ruled against the HOA. The judge’s key finding was that a more specific law takes precedence. The statute governing planned communities, A.R.S. § 33-1804, explicitly requires that all meetings of the board must be open to all members of the association. This is a critical legal lesson: when a specific law exists to govern a specific entity (like the Open Meeting Law for HOAs), it almost always overrides a more general law (like the one for all non-profits).
While the judge acknowledged the challenges of the “unprecedented global pandemic,” this did not excuse the violation, though it was cited as a reason not to issue a civil penalty.
Takeaway 2: “Meeting” by Email Is Still a Secret Meeting
2. A String of Individual Emails Can Constitute an Illegal Meeting
In the initial ruling, the judge found the board conducted business improperly, believing it was done via conference calls. Seizing on this factual error, the HOA challenged the decision and requested a rehearing, arguing their method was different and therefore permissible. In the rehearing, they clarified their actual process: the community management company would email each board member individually to request a ‘yes’ or ‘no’ vote. The HOA argued that because there was no simultaneous group discussion, this process wasn’t technically a “meeting.”
The challenge backfired. The judge’s final decision made it clear that this distinction didn’t matter. Whether by conference call or a series of individual emails, the result was the same: an illegal secret meeting. The method effectively prevented homeowners from observing the board’s process and speaking on agenda items before a vote was taken, as required by law. The HOA won their technical correction but lost the war, as the judge affirmed that the principle of transparency is more important than the specific technology used to circumvent it.
These weren’t minor housekeeping issues. The board was making substantial financial and operational decisions entirely out of public view, including:
• Repair and replacement of the sidewalk and community center entrance.
• Repair and replacement of the cool decking around both pools.
• Appointing new members to the Architectural Review Committee.
• Approving a retention basin project and the purchase of 420 tons of granite.
• Approving the 2020 summer hardwood pruning and removal of trees.
Takeaway 3: The Law Is Built to Favor Transparency
3. The Law Itself Has a Built-in Bias for Openness
The judge’s decision wasn’t just a narrow interpretation; it was guided by a powerful policy statement built directly into the Arizona statute for planned communities. The law itself tells judges, board members, and community managers exactly how it should be interpreted.
The text of A.R.S. § 33-1804(F) leaves no room for doubt:
It is the policy of this state as reflected in this section that all meetings of a planned community, whether meetings of the members’ association or meetings of the board of directors of the association, be conducted openly and that notices and agendas be provided for those meetings that contain the information that is reasonably necessary to inform the members of the matters to be discussed or decided and to ensure that members have the ability to speak after discussion of agenda items, but before a vote of the board of directors or members is taken. Toward this end, any person or entity that is charged with the interpretation of these provisions…shall construe any provision of this section in favor of open meetings.
This is a critical point. The law explicitly directs anyone interpreting it—including an HOA board—to resolve any ambiguity in favor of transparency and homeowner access. The default position is openness.
Takeaway 4: A Single Homeowner Can Force a Change
4. One Determined Homeowner Can Win
This case serves as an empowering lesson for homeowners who feel their board is operating in the shadows. Morin’s persistence paid off, proving that a single homeowner can successfully force a board to follow the law.
Her victory was clear and decisive. The court orders resulted in three key outcomes:
• The judge affirmed her petition, officially recognizing that the HOA had violated the law.
• The HOA was formally ordered to comply with the open meeting requirements of A.R.S. § 33-1804 going forward.
• The HOA was ordered to reimburse Ms. Morin her $500.00 filing fee.
This outcome demonstrates that the system can work. An individual homeowner with a valid complaint can navigate the process and achieve a binding legal victory that forces their HOA board to operate correctly.
Conclusion: Is Your Board Operating in the Open?
The lesson from the Solera Chandler HOA case is simple: transparency in HOA governance is not optional. It is a legal requirement designed to protect the rights of every homeowner to observe and participate in the governance of their community. The convenience of an email vote cannot replace the legal mandate for an open meeting.
Don’t assume your board is operating correctly. Review your meeting minutes. Ask questions about decisions that seem to appear without public discussion. Remember, the law explicitly favors openness, and as Debra Morin proved, it’s an enforceable right.
This case was about secret votes via email, but it highlights a larger principle of transparency. Does your HOA board make it easy for you to know what is being decided and to have your voice heard?
Case Participants
Petitioner Side
Debra K. Morin(petitioner)
Respondent Side
Lydia A. Peirce Linsmeier(HOA attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Also cited as Lydia Linsmeier
Joshua M. Bolen(HOA attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
Gail Ryan(board member) Solera Chandler Homeowners' Association, Inc. President of Board, resigned August 5, 2020
Kirk Sandquist(ARC member) Solera Chandler Homeowners' Association, Inc. Appointment approved April 30, 2020
Tom Dusbabek(ARC member) Solera Chandler Homeowners' Association, Inc. Appointment approved April 30, 2020
Ken Eller(contractor) Approved to be hired to draft architectural drawings
Neutral Parties
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate Granted Request for Rehearing
Following a rehearing based on newly discovered evidence, the Administrative Law Judge found that Respondent violated A.R.S. § 33-1258(A) by failing to timely provide records it possessed. Respondent was ordered to reimburse the Petitioner $500.00 for the filing fee and pay a $2,500.00 civil penalty to the Department of Real Estate.
Key Issues & Findings
Failure to make association financial and other records reasonably available for examination/provide copies within ten business days.
Petitioner alleged Respondent violated A.R.S. § 33-1258 by failing to provide requested records (including bank statements and contracts) following a formal request on May 1, 2020. The Administrative Law Judge, in the rehearing, found that the evidence showed Respondent was in possession of bank statements and two signed contracts at the time of the request, contradicting prior testimony, thereby establishing a violation of the statute.
Orders: Respondent was ordered to pay Petitioner $500.00 for the filing fee reimbursement and pay a civil penalty of $2,500.00 to the Department of Real Estate, both payments due within 30 days.
Following a rehearing based on newly discovered evidence, the Administrative Law Judge found that Respondent violated A.R.S. § 33-1258(A) by failing to timely provide records it possessed. Respondent was ordered to reimburse the Petitioner $500.00 for the filing fee and pay a $2,500.00 civil penalty to the Department of Real Estate.
Key Issues & Findings
Failure to make association financial and other records reasonably available for examination/provide copies within ten business days.
Petitioner alleged Respondent violated A.R.S. § 33-1258 by failing to provide requested records (including bank statements and contracts) following a formal request on May 1, 2020. The Administrative Law Judge, in the rehearing, found that the evidence showed Respondent was in possession of bank statements and two signed contracts at the time of the request, contradicting prior testimony, thereby establishing a violation of the statute.
Orders: Respondent was ordered to pay Petitioner $500.00 for the filing fee reimbursement and pay a civil penalty of $2,500.00 to the Department of Real Estate, both payments due within 30 days.
Topics: HOA records request, A.R.S. 33-1258, Rehearing, Civil Penalty, Possession of Records
Additional Citations:
A.R.S. § 33-1258
A.R.S. § 32-2199.02
A.A.C. R2-19-119
Video Overview
Audio Overview
Decision Documents
20F-H2020064-REL Decision – 823263.pdf
Uploaded 2025-10-09T03:35:33 (108.6 KB)
Briefing Doc – 20F-H2020064-REL
Briefing Document: Babington v. Park Scottsdale II Townhouse Corporation
Executive Summary
This document synthesizes the findings from two administrative hearings concerning a records request dispute between homeowner Nancy L. Babington (Petitioner) and the Park Scottsdale II Townhouse Corporation (Respondent). The case, No. 20F-H2020064-REL, culminated in a reversal of an initial ruling, finding the Respondent in violation of Arizona law A.R.S. § 33-1258 for failing to provide association records within the statutory timeframe.
The initial hearing on August 28, 2020, resulted in a denial of the petition. The Respondent successfully argued that it could not produce the requested documents because they were not in its possession, largely due to a dispute with a former management company. However, a rehearing was granted after the Petitioner discovered new evidence.
The rehearing on March 4, 2021, established that the Respondent, through its management company Associa Arizona, was in possession of key requested documents—specifically bank statements and signed contracts—at the time of the initial request. Evidence revealed the bank statements were held at a central corporate office in Texas and were not retrieved, while signed contracts had not been forwarded to the management company by board members. The Administrative Law Judge found this directly contradicted the Respondent’s initial defense.
As a result, the Administrative Law Judge reversed the earlier decision, ordering the Respondent to reimburse the Petitioner’s $500 filing fee and imposing a $2,500 civil penalty payable to the Arizona Department of Real Estate. The case underscores an association’s responsibility to produce all records in its possession, regardless of physical location within the corporate structure, and affirms the court’s authority to levy penalties for violations.
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1. Case Overview
• Case Number: 20F-H2020064-REL
• Petitioner: Nancy L. Babington
• Respondent: Park Scottsdale II Townhouse Corporation
• Core Allegation: Violation of A.R.S. § 33-1258, which mandates that a condominium owners’ association must make its financial and other records reasonably available for examination by a member within ten business days of a request.
• Hearings Conducted:
◦ Initial Hearing: August 28, 2020
◦ Rehearing: March 4, 2021
• Presiding Administrative Law Judge: Tammy L. Eigenheer
2. Chronology of the Dispute
The dispute originated from difficulties following a change in the Respondent’s management company and subsequent records requests by the Petitioner.
• June-July 2019: The previous management company, Community Management & Consulting, LLC (CMC), terminated its agreement with the Respondent. A “financial disagreement” led to CMC withholding records, complicating the transition.
• Post-July 2019: Respondent hired Associa Arizona as its new management company. Associa and the Respondent’s counsel attempted to obtain the withheld records from CMC.
• April 29, 2020: After previous attempts to get information, Petitioner Nancy L. Babington sent a formal email to Associa and the Respondent’s Board of Directors. In the email, she stated:
• May 1, 2020: Linda Parker, Director of Client Services with Associa, replied, stating the request was not specific and asked the Petitioner to identify the exact records needed.
• May 1, 2020: The Petitioner responded with a detailed list of nine specific items:
1. All bank statements with copies of cancelled checks since Sept 1, 2019.
2. Any and all financial statements since Sept 1, 2019.
3. Any and all 1099s issued for 2019.
4. Any and all Executive Session meeting minutes conducted in 2020 (excluding statutory exemptions).
5. Any and all contracts signed in 2020.
6. Any and all outstanding invoices with a due date over 45 days.
7. Any documentation regarding the legality of the $204.75 maintenance fee.
8. Any proof of Stephen Silberschlag’s liability insurance.
9. Any landscaping plans.
• May 4, 2020: Ms. Parker from Associa responded that the company could only provide records within its possession.
• May 15, 2020: Following another email from the Petitioner, Ms. Parker stated that Associa had scheduled a meeting with the board on May 20 to discuss the request further.
• May 28, 2020: Having not received any of the requested documents, the Petitioner filed a petition with the Arizona Department of Real Estate.
3. The Initial Hearing and Decision (August – September 2020)
The first hearing focused on whether the Respondent had violated the statute by failing to produce the documents.
• The Respondent argued that it was unable to provide documents that were not in its possession.
• Joseph Silberschlag, Secretary of the Board of Directors, testified that issues with the former management company (CMC) meant neither the Respondent nor Associa had possession of many necessary documents.
• Specifically, he stated that without previous financial documents and starting balances from CMC, the association was unable to create current financial statements.
• The Respondent maintained it was under no statutory obligation to create documents to fulfill the Petitioner’s request.
• The Administrative Law Judge (ALJ) concluded that the Petitioner “failed to establish by a preponderance of the evidence that Respondent violated A.R.S. § 33-1258(A).”
• The finding was based on the Respondent’s argument that it did not possess the requested documents at the time of the request.
• On September 17, 2020, the ALJ issued a decision denying the Petitioner’s petition.
4. The Rehearing and Reversal (March 2021)
Following the initial decision, the case was reopened based on new evidence presented by the Petitioner.
• After the September 2020 decision, the Respondent provided some of the requested documents to the Petitioner.
• Upon reviewing these documents, the Petitioner realized that the Respondent had, in fact, been in possession of several key records prior to her May 1, 2020 request.
• She filed a Rehearing Request with the Department of Real Estate, citing “newly discovered material evidence that could not with reasonable diligence have been discovered and produced at the original hearing.” The request was granted.
The rehearing revealed crucial details about the location and accessibility of the requested records.
Record Type
Petitioner’s Evidence
Respondent’s Testimony/Explanation
Bank Statements
The documents received post-hearing showed that bank statements had been sent to Associa starting in August 2019.
Evelyn Shanley, Community Director for Associa, testified that statements for all HOAs were sent to a central office in Richardson, Texas. She admitted she did not contact the Texas office to obtain the statements for the Petitioner’s request. Counsel for the Respondent conceded the statements in Texas were in the possession of Associa.
Contracts
Petitioner presented two contracts signed by Board members on March 27 and March 31, 2020, prior to her request.
Ms. Shanley admitted the two signed contracts existed but stated that the Board of Directors members had not provided them to Associa.
1099 Forms
Petitioner noted a document indicating four vendors were eligible for 1099s.
Ms. Shanley denied that any 1099s had been issued.
• The documents were not in the “immediate possession” of the local Associa office.
• The matter was now moot because the Petitioner had received all requested documents.
• A civil penalty was inappropriate because the Petitioner did not specifically request one on her initial petition form.
• The evidence presented at the rehearing was “directly contradictory” to the representations made by the Respondent at the initial hearing.
• The Petitioner successfully established by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1258(A) by failing to provide documents (bank statements and contracts) that were in its possession.
• The ALJ rejected the Respondent’s argument against a civil penalty, stating that the plain language of A.R.S. § 32-2199.02 allows the judge to levy a penalty for established violations, and “nothing in the statute limits the available remedies to those specifically requested by a petitioner.”
5. Final Order and Penalties
The Administrative Law Judge Decision issued on March 24, 2021, reversed the initial finding and imposed penalties on the Respondent.
IT IS ORDERED that:
1. Respondent must pay the Petitioner her filing fee of $500.00 within 30 days.
2. Respondent must pay to the Department of Real Estate a civil penalty in the amount of $2,500.00 within 30 days.
Study Guide – 20F-H2020064-REL
Study Guide: Babington v. Park Scottsdale II Townhouse Corporation
This study guide provides a review of the administrative case involving Petitioner Nancy L. Babington and Respondent Park Scottsdale II Townhouse Corporation. It includes a short-answer quiz to test factual recall, a separate answer key, a set of essay questions for deeper analysis, and a glossary of key terms and entities involved in the proceedings.
Short-Answer Quiz
Answer each question in 2-3 sentences based on the information provided in the case documents.
1. Who were the primary parties in this case, and what was the Petitioner’s central allegation?
2. What specific Arizona statute was the Respondent accused of violating, and what does this law generally require?
3. What was the Respondent’s main defense during the initial hearing on August 28, 2020, for not providing the requested records?
4. What was the conclusion of the Administrative Law Judge in the first decision, issued on September 17, 2020?
5. On what legal grounds did the Petitioner successfully file for a rehearing of her case?
6. What new evidence regarding bank statements was presented by the Petitioner at the March 4, 2021, rehearing?
7. How did the Respondent’s management company, Associa Arizona, explain its failure to produce the bank statements and signed contracts in response to the initial request?
8. What was the final outcome of the rehearing, and how did it contradict the initial decision?
9. What two financial penalties were imposed upon the Respondent in the final order of March 24, 2021?
10. What was the Respondent’s argument against the imposition of a civil penalty, and why did the Administrative Law Judge reject it?
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Answer Key
1. The primary parties were Petitioner Nancy L. Babington, a property owner, and Respondent Park Scottsdale II Townhouse Corporation, a condominium owners association. The Petitioner alleged that the Respondent failed to provide association records she formally requested, in violation of Arizona law.
2. The Respondent was accused of violating A.R.S. § 33-1258. This statute requires a condominium owners association to make its financial and other records reasonably available for examination by a member and to provide copies of requested records within ten business days.
3. During the initial hearing, the Respondent’s main defense was that it was unable to provide the documents because they were not in its possession. The Respondent claimed its former management company, CMC, was withholding records and that without starting balances, it could not create new financial documents.
4. The Administrative Law Judge denied the Petitioner’s petition in the first decision. The judge concluded that the Petitioner failed to establish by a preponderance of the evidence that the Respondent violated the statute because the Respondent did not possess the documents and was not required to create them.
5. The Petitioner was granted a rehearing based on the discovery of “newly discovered material evidence that could not with reasonable diligence have been discovered and produced at the original hearing.” After the first decision, the Respondent provided documents that proved it had, in fact, been in possession of some of the requested records prior to her request.
6. At the rehearing, the Petitioner testified that after receiving the documents, she realized bank statements had been sent to Associa’s central office in Richardson, Texas, starting in August 2019. This demonstrated that the records were in the management company’s possession when she made her request.
7. Associa’s representative testified that bank statements went to a central office in Texas and were not forwarded to the local office because financial packets could not be prepared without starting balances from the previous management company. Regarding the contracts, Associa claimed that the Board of Directors members who signed them had not provided the contracts to Associa.
8. The final outcome of the rehearing was a ruling in favor of the Petitioner. The judge found that evidence presented at the rehearing directly contradicted the Respondent’s earlier claims, establishing that the Respondent did possess bank statements and contracts and had violated A.R.S. § 33-1258(A).
9. In the final order, the Respondent was ordered to pay the Petitioner’s filing fee of $500.00. Additionally, the Respondent was ordered to pay a civil penalty of $2,500.00 to the Arizona Department of Real Estate.
10. The Respondent argued that a civil penalty was not appropriate because the Petitioner did not specifically request one by checking the box on the petition form. The judge rejected this, stating that the plain language of A.R.S. § 32-2199.02 allows the judge to levy a civil penalty for established violations, and this authority is not limited by the remedies requested by a petitioner.
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Essay Questions
The following questions are designed for analytical and in-depth responses. Answers are not provided.
1. Analyze the concept of “possession” of records as it evolved from the first hearing to the second. How did the Respondent’s initial interpretation of “immediate possession” differ from the Administrative Law Judge’s final conclusion regarding the records held by Associa’s Texas office?
2. Discuss the significance of the “preponderance of the evidence” standard in this case. Explain specifically how the Petitioner failed to meet this standard in the first hearing but succeeded in the second, citing the key pieces of evidence that shifted the outcome.
3. Evaluate the role and responsibilities of the management company, Associa Arizona, in this dispute. To what extent were its internal procedures and actions (or inactions) the primary cause of the Respondent’s violation of A.R.S. § 33-1258?
4. Trace the timeline of communication between Nancy Babington and Associa Arizona from April 29, 2020, to May 15, 2020. Analyze how the responses from Associa may have contributed to the perception that the Respondent was refusing to provide information, ultimately leading to the petition being filed.
5. The Administrative Law Judge has the statutory authority to levy a civil penalty for each violation found. Based on the facts of this case, including the Respondent’s representations at the first hearing and the contradictory evidence presented at the second, construct an argument justifying the imposition of the $2,500 civil penalty.
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Glossary of Key Terms
Term / Entity
Definition
A.R.S. § 32-2199 et seq.
The Arizona Revised Statute cited as giving the Arizona Department of Real Estate jurisdiction to hear disputes between a property owner and a condominium owners association.
A.R.S. § 33-1258
The Arizona Revised Statute at the core of the dispute. It requires that an association’s financial and other records be made “reasonably available” for examination and that the association has ten business days to fulfill a request for examination or to provide copies.
Administrative Law Judge (ALJ)
The official from the Office of Administrative Hearings (Tammy L. Eigenheer in this case) responsible for conducting the hearings, weighing evidence, and issuing a legally binding decision and order.
Associa Arizona
The management company hired by the Respondent to handle its operations after the termination of the previous management agreement. It was the primary point of contact for the Petitioner’s records request.
Civil Penalty
A monetary fine levied by the Administrative Law Judge for a violation of the law. In this case, a $2,500 penalty was ordered to be paid to the Department of Real Estate.
Community Management & Consulting, LLC (CMC)
The Respondent’s former management company. CMC terminated its agreement with the Respondent and was withholding association records due to a financial disagreement, which was a key part of the Respondent’s defense in the initial hearing.
Department of Real Estate (Department)
The Arizona state agency with which the Petitioner filed her petition and which has jurisdiction over such disputes.
A legal argument made by the Respondent’s counsel during the rehearing. Counsel asserted that the matter was moot (no longer relevant or in dispute) because, by the time of the rehearing, the Petitioner had received all the documents she requested.
Newly Discovered Material Evidence
The legal basis upon which the Petitioner was granted a rehearing. It refers to significant evidence that was not available at the time of the original hearing despite reasonable diligence.
Petitioner
The party who initiates a legal action or petition. In this case, Nancy L. Babington, a condominium owner.
Preponderance of the Evidence
The standard of proof required for the Petitioner to win her case. It is defined as evidence that is more convincing and shows that the fact sought to be proved is “more probable than not.”
Rehearing
A second hearing granted by the Commissioner of the Department of Real Estate to re-examine a case, which was held on March 4, 2021, after the Petitioner presented newly discovered evidence.
Respondent
The party against whom a petition is filed. In this case, Park Scottsdale II Townhouse Corporation, the condominium owners association.
Blog Post – 20F-H2020064-REL
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20F-H2020064-REL-RHG
2 sources
These two sources are Administrative Law Judge Decisions concerning a dispute between Nancy L. Babington, a homeowner, and the Park Scottsdale II Townhouse Corporation, her condominium owners association, regarding the provision of association records under Arizona statute A.R.S. § 33-1258. The first document details the initial hearing, held in August 2020, where the judge ruled in favor of the association, concluding that the association was not in violation because it lacked possession of the requested documents due to issues with its former management company. The second document outlines the rehearing, granted due to newly discovered evidence suggesting the association or its new management company, Associa Arizona, actually possessed some records, such as bank statements and contracts, despite earlier claims. Based on the rehearing’s findings, the judge determined the association violated the statute by not providing the records within the ten-day requirement and ordered the association to reimburse the petitioner’s filing fee and pay a civil penalty.
How did newly discovered evidence lead to reversal of the initial legal decision?
What were the specific consequences for the respondent following the administrative rehearing?
How did the interpretation of statutory record possession requirements change between hearings?
Based on 2 sources
Case Participants
Petitioner Side
Nancy L. Babington(petitioner)
Respondent Side
Lydia A. Peirce Linsmeier(HOA attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Represented Respondent at initial hearing
Mark K. Sahl(HOA attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Represented Respondent at rehearing
Scott B. Carpenter(HOA attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Represented Respondent at rehearing
Debbie Schumacher(board member) Park Scottsdale II Townhouse Corporation
Marty Shuford(board member) Park Scottsdale II Townhouse Corporation
Joseph Silberschlag(board member) Park Scottsdale II Townhouse Corporation Secretary; testified
Angelina Rajenovich(board member) Park Scottsdale II Townhouse Corporation
Dermot Brown(board member) Park Scottsdale II Townhouse Corporation
Lori Nusbaum(board member) Park Scottsdale II Townhouse Corporation
Linda Parker(HOA staff) Associa Arizona Director of Client Services for property manager
Evelyn Shanley(HOA staff) Associa Arizona Community Director for property manager; testified at rehearing
Laura Smith(HOA staff) Associa Arizona
Neutral Parties
Tammy L. Eigenheer(ALJ) OAH
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
c. serrano(staff) Signed order transmission
Other Participants
Stephen Silberschlag(unknown) Subject of Petitioner's record request
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
19F-H1919071-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2020-01-30
Administrative Law Judge
Velva Moses-Thompson
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Thomas J. Van Dan Elzen
Counsel
—
Respondent
Carter Ranch Homeowners Association
Counsel
Augustus H. Shaw IV
Alleged Violations
A.R.S. § 33-1808
Outcome Summary
The Administrative Law Judge dismissed the Petitioner's claim, concluding that the Petitioner failed to prove the HOA violated A.R.S. § 33-1808 regarding flag display or that the HOA improperly adopted its rules; the Respondent was deemed the prevailing party,,.
Why this result: Petitioner failed to establish by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1808,, and failed to establish that the Flag Display Rule was improperly adopted or inconsistent with the CC&Rs.
Key Issues & Findings
Flag and Political Sign Display Restriction
Petitioner alleged the HOA violated A.R.S. § 33-1808 by prohibiting him from displaying a 'Trump 2020' flag in his front yard, asserting the HOA's Flag Display Rule was invalid because the CC&Rs did not specifically mention 'flag',,.
Orders: The petition is dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1808
A.A.C. R2-19-119
Analytics Highlights
Topics: Flag display, Political signs, HOA rules, Statutory violation
Administrative Hearing Brief: Van Dan Elzen v. Carter Ranch Homeowners Association
Executive Summary
This document synthesizes the findings and conclusions from two administrative law judge decisions concerning a dispute between homeowner Thomas J. Van Dan Elzen and the Carter Ranch Homeowners Association (HOA). The core conflict arose from Mr. Van Dan Elzen’s display of a “Trump 2020” flag, which the HOA deemed a violation of its “Flag Display Rule.” Mr. Van Dan Elzen petitioned the Arizona Department of Real Estate, alleging the HOA’s rule was invalid and violated Arizona Revised Statutes (A.R.S.) § 33-1808.
The Administrative Law Judge (ALJ) ultimately dismissed the petition, both in the initial hearing and upon a subsequent rehearing. The central findings were that the petitioner failed to meet his burden of proof to demonstrate that the HOA’s rule was inconsistent with its governing documents (CC&Rs) or that the HOA had violated the state statute. The HOA’s authority to create rules restricting the use of lots, granted by its CC&Rs, was upheld. The final decision affirmed the HOA as the prevailing party, concluding a legal challenge that centered on the distinction between statutorily protected flags and political displays.
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I. Case Background and Chronology
The dispute was adjudicated by the Office of Administrative Hearings, with Velva Moses-Thompson serving as the Administrative Law Judge. The case involved a petition filed by a homeowner against his HOA regarding flag display regulations.
Parties Involved:
• Petitioner: Thomas J. Van Dan Elzen (appeared on his own behalf)
• Respondent: Carter Ranch Homeowners Association (represented by Augustus H. Shaw IV, Esq.)
Key Events:
Date (2019-2020)
May 21, 2019
Carter Ranch HOA notifies Mr. Van Dan Elzen that his “Trump 2020” flag violates association rules.
June 14, 2019
Mr. Van Dan Elzen files a petition with the Arizona Department of Real Estate, alleging a violation of A.R.S. § 33-1808.
July 16, 2019
The Department of Real Estate issues a Notice of Hearing.
Sept. 9, 2019
The initial administrative hearing is held.
Sept. 30, 2019
The ALJ issues a decision dismissing the petitioner’s case.
Nov. 18, 2019
The Department of Real Estate issues an order for a rehearing.
Jan. 10, 2020
A rehearing is held.
Jan. 30, 2020
The ALJ issues a final decision on the rehearing, again dismissing the petition.
II. The Core Dispute and Competing Arguments
The central issue was the legality of the Carter Ranch HOA’s rule prohibiting Mr. Van Dan Elzen’s “Trump 2020” flag and the scope of the HOA’s authority to regulate such displays.
A. The Petitioner’s Position (Thomas J. Van Dan Elzen)
Mr. Van Dan Elzen’s challenge was based on the premise that the HOA’s “Flag Display Rule” was invalid because it was not explicitly supported by the language of the community’s Covenants, Conditions, and Restrictions (CC&Rs).
• Primary Argument: He asserted that because the CC&Rs do not specifically contain the word “flag,” any rule created by the HOA Board regulating flags is inconsistent with the CC&Rs and therefore unenforceable.
• Petition Allegation: In his formal petition, Mr. Van Dan Elzen stated the violation was “based on 33-1808 Flags and Sings [sic].” He further argued that the HOA’s rule referenced section 3.14 of the CC&Rs, which he claimed “ONLY defines SIGNS and has no reference to Flags whatsoever.”
B. The Respondent’s Position (Carter Ranch HOA)
The Carter Ranch HOA maintained that its “Flag Display Rule” was a valid exercise of the authority granted to its Board by the community’s governing documents.
• Basis of Authority: The HOA contended that it was authorized to adopt the rule under Article V, Section 5.3 of its CC&Rs.
• Defense of the Rule: The HOA argued that the Flag Display Rule was not inconsistent with the CC&Rs and was properly adopted.
• Argument for Dismissal: Carter Ranch asserted that the petition should be dismissed because the petitioner had not successfully alleged a violation of any statute or provision within the governing documents.
III. Governing Documents and Legal Framework
The case was decided based on an interpretation of both state law and the HOA’s internal governing documents.
A. Carter Ranch Homeowners Association Rules
• The “Flag Display Rule”: The association’s rules and regulations explicitly prohibit the flying of any flag other than the following:
◦ The American Flag
◦ Official or replica flags of the U.S. Army, Navy, Air Force, Marine Corps, or Coast Guard
◦ A POW/MIA flag
◦ The Arizona State flag
◦ An Arizona Indian Nations flag
◦ The Gadsden Flag
• CC&Rs, Article V, Section 5.3: This section grants the HOA Board broad rule-making authority. The text states, in relevant part:
B. Arizona Revised Statutes § 33-1808
This state statute places specific limitations on an HOA’s ability to prohibit certain flags and political signs.
• Section A – Protected Flags: The statute mandates that an HOA “shall not prohibit the outdoor display” of the exact list of flags enumerated in the Carter Ranch “Flag Display Rule” (American, military, POW/MIA, state, etc.). A “Trump 2020” flag is not included in this list of protected flags.
• Section C – Political Signs: The statute addresses political signs separately from flags.
◦ Definition: A “political sign” is defined as “a sign that attempts to influence the outcome of an election.”
◦ Regulation: An HOA may prohibit political signs “earlier than seventy-one days before the day of an election and later than three days after an election day.”
◦ Size/Number: An HOA may regulate the size and number of signs, provided the rules are no more restrictive than local ordinances. If no local ordinance exists, an HOA cannot limit the number of signs but can cap the maximum aggregate dimensions at nine square feet.
IV. Administrative Law Judge’s Conclusions and Final Order
Across both the initial hearing and the rehearing, the ALJ’s conclusions of law consistently favored the respondent HOA. The petitioner failed to meet the required legal standard to prove his case.
A. Burden of Proof
The ALJ established that the petitioner, Mr. Van Dan Elzen, bore the burden of proving by a “preponderance of the evidence” that the HOA had violated A.R.S. § 33-1808. A preponderance of the evidence means showing the fact sought to be proved is “more probable than not.”
B. Key Conclusions of Law
• Validity of the “Flag Display Rule”: The ALJ concluded that the petitioner “had not established that the Association improperly adopted the Flag Display Rule under its CC&Rs.” In the rehearing, this was stated as the petitioner having “not established that the Flag Display Rule was inconsistent with the CC&Rs.”
• No Statutory Violation: A critical conclusion in both decisions was that the petitioner “has not alleged that Carter Ranch violated A.R.S. § 33-1808.”
• Final Judgment: Based on these conclusions, the ALJ determined that Mr. Van Dan Elzen’s petition should be dismissed and that the Carter Ranch HOA should be deemed the prevailing party.
C. Final Order
• Initial Decision (September 30, 2019): “IT IS ORDERED that Petitioner Thomas J. Van Dan Elzen’s petition is dismissed.”
• Rehearing Decision (January 30, 2020): The order to dismiss was reaffirmed. The final notice specified that this order was binding on the parties and that any appeal must be filed for judicial review with the superior court within thirty-five days.
Study Guide – 19F-H1919071-REL-RHG
Study Guide: Van Dan Elzen v. Carter Ranch Homeowners Association
This study guide provides a comprehensive review of the administrative law case involving Thomas J. Van Dan Elzen and the Carter Ranch Homeowners Association, based on the legal decisions from September 2019 and January 2020. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms.
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Short-Answer Quiz
Instructions: Answer the following questions in 2-3 sentences each, based on the provided case documents.
1. Who were the Petitioner and the Respondent in this case, and what was the official case number?
2. What specific action by the Petitioner prompted the initial notice of violation from the homeowners association?
3. What was the Petitioner’s primary legal argument against the validity of the Association’s “Flag Display Rule”?
4. According to the Carter Ranch CC&Rs, what authority does the Board have to create rules and regulations?
5. What is the “preponderance of the evidence,” and which party had the burden of meeting this standard?
6. List at least five of the flags that are explicitly permitted for display under the Carter Ranch “Flag Display Rule.”
7. Summarize the key provisions of Arizona Revised Statute § 33-1808(C) regarding “political signs.”
8. What was the Administrative Law Judge’s conclusion regarding the Petitioner’s claim that the Association improperly adopted the Flag Display Rule?
9. What was the final outcome of the petition after both the initial hearing on September 9, 2019, and the rehearing on January 10, 2020?
10. Who was the Administrative Law Judge that presided over both hearings?
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Answer Key
1. The Petitioner was Thomas J. Van Dan Elzen, and the Respondent was the Carter Ranch Homeowners Association. The case number was 19F-H1919071-REL, with the rehearing designated as 19F-H1919071-REL-RHG.
2. The case was prompted by Mr. Van Dan Elzen displaying a “Trump 2020” flag on a flagpole in his front yard. On or about May 21, 2019, Carter Ranch notified him that this action violated the Association’s rules.
3. The Petitioner argued that the Flag Display Rule was invalid because the community’s Covenants, Conditions, and Restrictions (CC&Rs) do not specifically mention the word “flag.” He asserted that the Association’s rules and regulations can only be based on topics explicitly mentioned in the CC&Rs.
4. Article V, Section 5.3 of the CC&Rs grants the Board the authority to adopt, amend, and repeal rules pertaining to the management of common areas, minimum maintenance standards for lots, the health, safety, or welfare of residents, and restrictions on the use of lots.
5. “Preponderance of the evidence” is evidence that is more convincing and shows that the fact sought to be proved is more probable than not. The Petitioner, Mr. Van Dan Elzen, bore the burden of proving his case by this standard.
6. The Carter Ranch Flag Display Rule permits the display of the American Flag, an official replica of a U.S. military flag (Army, Navy, Air Force, Marine Corps, or Coast Guard), a POW/MIA flag, an Arizona Indian nations flag, the Arizona State flag, and the Gadsden Flag.
7. A.R.S. § 33-1808(C) states that an association cannot prohibit the display of political signs on a member’s property, but it can prohibit them earlier than 71 days before an election and later than 3 days after an election. An association may also regulate the size and number of signs to be no more restrictive than local ordinances, or to a maximum aggregate of nine square feet if no such ordinances exist.
8. The Administrative Law Judge concluded that the Petitioner had not established that the Association improperly adopted the Flag Display Rule under its CC&Rs. The judge found that the rule was not inconsistent with the CC&Rs.
9. In both instances, the Administrative Law Judge ordered that the Petitioner’s petition be dismissed. The Respondent, Carter Ranch Homeowners Association, was deemed the prevailing party in the matter.
10. The Administrative Law Judge for both the initial hearing and the rehearing was Velva Moses-Thompson.
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Suggested Essay Questions
Instructions: The following questions are designed to test a deeper, analytical understanding of the case. Formulate a comprehensive response for each.
1. Analyze the Petitioner’s legal strategy. Why did his argument that the CC&Rs do not explicitly mention the word “flag” ultimately fail to meet the “preponderance of the evidence” standard?
2. Explain the relationship between the Carter Ranch CC&Rs, the Association’s Rules and Regulations, and Arizona Revised Statute § 33-1808. How do these documents interact to govern what a resident can display on their property?
3. Discuss the concept of “burden of proof” in this case. How did the “preponderance of the evidence” standard apply to Thomas J. Van Dan Elzen’s petition, and why did the Administrative Law Judge conclude he did not meet it?
4. Could the “Trump 2020” flag have been considered a “political sign” under the definition provided in A.R.S. § 33-1808(C)? Based on the text, evaluate the potential arguments for and against this classification and how the statute’s time restrictions on display might have been relevant.
5. Examine the authority granted to the Carter Ranch HOA Board by Article V, Section 5.3 of its CC&Rs. How did the HOA use this section to justify its Flag Display Rule, and how did the Administrative Law Judge evaluate this justification?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The judge who presides over administrative hearings. In this case, the ALJ was Velva Moses-Thompson.
A.R.S. § 33-1808
The Arizona Revised Statute that, notwithstanding community documents, protects the right of homeowners to display certain flags (American, military, POW/MIA, state, etc.) and regulates how an association may restrict political signs.
Burden of Proof
The obligation of a party in a legal proceeding to provide evidence to prove their claim. In this case, the Petitioner had the burden of proof.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing legal documents that set up the guidelines for a planned community or homeowners association. In this case, Article V, Section 5.3 of the CC&Rs gave the Board authority to create rules.
Flag Display Rule
The specific Carter Ranch Association rule prohibiting any flag other than the American Flag, specific military flags, POW/MIA flag, Arizona Indian National flag, Arizona State flag, and the Gadsden Flag.
Petitioner
The party who files a petition to initiate a legal proceeding. In this case, the petitioner was Thomas J. Van Dan Elzen.
Political Sign
As defined in A.R.S. § 33-1808(C), “a sign that attempts to influence the outcome of an election, including supporting or opposing the recall of a public officer or supporting or opposing the circulation of a petition for a ballot measure, question or proposition or the recall of a public officer.”
Preponderance of the Evidence
The standard of proof required in this proceeding. Defined in the decision as “[e]vidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”
Rehearing
A second hearing of a case. In this matter, a rehearing was held on January 10, 2020, after the initial decision was made on September 30, 2019.
Respondent
The party against whom a petition is filed. In this case, the respondent was the Carter Ranch Homeowners Association.
Blog Post – 19F-H1919071-REL-RHG
Study Guide: Van Dan Elzen v. Carter Ranch Homeowners Association
This study guide provides a comprehensive review of the administrative law case involving Thomas J. Van Dan Elzen and the Carter Ranch Homeowners Association, based on the legal decisions from September 2019 and January 2020. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms.
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Short-Answer Quiz
Instructions: Answer the following questions in 2-3 sentences each, based on the provided case documents.
1. Who were the Petitioner and the Respondent in this case, and what was the official case number?
2. What specific action by the Petitioner prompted the initial notice of violation from the homeowners association?
3. What was the Petitioner’s primary legal argument against the validity of the Association’s “Flag Display Rule”?
4. According to the Carter Ranch CC&Rs, what authority does the Board have to create rules and regulations?
5. What is the “preponderance of the evidence,” and which party had the burden of meeting this standard?
6. List at least five of the flags that are explicitly permitted for display under the Carter Ranch “Flag Display Rule.”
7. Summarize the key provisions of Arizona Revised Statute § 33-1808(C) regarding “political signs.”
8. What was the Administrative Law Judge’s conclusion regarding the Petitioner’s claim that the Association improperly adopted the Flag Display Rule?
9. What was the final outcome of the petition after both the initial hearing on September 9, 2019, and the rehearing on January 10, 2020?
10. Who was the Administrative Law Judge that presided over both hearings?
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Answer Key
1. The Petitioner was Thomas J. Van Dan Elzen, and the Respondent was the Carter Ranch Homeowners Association. The case number was 19F-H1919071-REL, with the rehearing designated as 19F-H1919071-REL-RHG.
2. The case was prompted by Mr. Van Dan Elzen displaying a “Trump 2020” flag on a flagpole in his front yard. On or about May 21, 2019, Carter Ranch notified him that this action violated the Association’s rules.
3. The Petitioner argued that the Flag Display Rule was invalid because the community’s Covenants, Conditions, and Restrictions (CC&Rs) do not specifically mention the word “flag.” He asserted that the Association’s rules and regulations can only be based on topics explicitly mentioned in the CC&Rs.
4. Article V, Section 5.3 of the CC&Rs grants the Board the authority to adopt, amend, and repeal rules pertaining to the management of common areas, minimum maintenance standards for lots, the health, safety, or welfare of residents, and restrictions on the use of lots.
5. “Preponderance of the evidence” is evidence that is more convincing and shows that the fact sought to be proved is more probable than not. The Petitioner, Mr. Van Dan Elzen, bore the burden of proving his case by this standard.
6. The Carter Ranch Flag Display Rule permits the display of the American Flag, an official replica of a U.S. military flag (Army, Navy, Air Force, Marine Corps, or Coast Guard), a POW/MIA flag, an Arizona Indian nations flag, the Arizona State flag, and the Gadsden Flag.
7. A.R.S. § 33-1808(C) states that an association cannot prohibit the display of political signs on a member’s property, but it can prohibit them earlier than 71 days before an election and later than 3 days after an election. An association may also regulate the size and number of signs to be no more restrictive than local ordinances, or to a maximum aggregate of nine square feet if no such ordinances exist.
8. The Administrative Law Judge concluded that the Petitioner had not established that the Association improperly adopted the Flag Display Rule under its CC&Rs. The judge found that the rule was not inconsistent with the CC&Rs.
9. In both instances, the Administrative Law Judge ordered that the Petitioner’s petition be dismissed. The Respondent, Carter Ranch Homeowners Association, was deemed the prevailing party in the matter.
10. The Administrative Law Judge for both the initial hearing and the rehearing was Velva Moses-Thompson.
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Suggested Essay Questions
Instructions: The following questions are designed to test a deeper, analytical understanding of the case. Formulate a comprehensive response for each.
1. Analyze the Petitioner’s legal strategy. Why did his argument that the CC&Rs do not explicitly mention the word “flag” ultimately fail to meet the “preponderance of the evidence” standard?
2. Explain the relationship between the Carter Ranch CC&Rs, the Association’s Rules and Regulations, and Arizona Revised Statute § 33-1808. How do these documents interact to govern what a resident can display on their property?
3. Discuss the concept of “burden of proof” in this case. How did the “preponderance of the evidence” standard apply to Thomas J. Van Dan Elzen’s petition, and why did the Administrative Law Judge conclude he did not meet it?
4. Could the “Trump 2020” flag have been considered a “political sign” under the definition provided in A.R.S. § 33-1808(C)? Based on the text, evaluate the potential arguments for and against this classification and how the statute’s time restrictions on display might have been relevant.
5. Examine the authority granted to the Carter Ranch HOA Board by Article V, Section 5.3 of its CC&Rs. How did the HOA use this section to justify its Flag Display Rule, and how did the Administrative Law Judge evaluate this justification?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The judge who presides over administrative hearings. In this case, the ALJ was Velva Moses-Thompson.
A.R.S. § 33-1808
The Arizona Revised Statute that, notwithstanding community documents, protects the right of homeowners to display certain flags (American, military, POW/MIA, state, etc.) and regulates how an association may restrict political signs.
Burden of Proof
The obligation of a party in a legal proceeding to provide evidence to prove their claim. In this case, the Petitioner had the burden of proof.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing legal documents that set up the guidelines for a planned community or homeowners association. In this case, Article V, Section 5.3 of the CC&Rs gave the Board authority to create rules.
Flag Display Rule
The specific Carter Ranch Association rule prohibiting any flag other than the American Flag, specific military flags, POW/MIA flag, Arizona Indian National flag, Arizona State flag, and the Gadsden Flag.
Petitioner
The party who files a petition to initiate a legal proceeding. In this case, the petitioner was Thomas J. Van Dan Elzen.
Political Sign
As defined in A.R.S. § 33-1808(C), “a sign that attempts to influence the outcome of an election, including supporting or opposing the recall of a public officer or supporting or opposing the circulation of a petition for a ballot measure, question or proposition or the recall of a public officer.”
Preponderance of the Evidence
The standard of proof required in this proceeding. Defined in the decision as “[e]vidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”
Rehearing
A second hearing of a case. In this matter, a rehearing was held on January 10, 2020, after the initial decision was made on September 30, 2019.
Respondent
The party against whom a petition is filed. In this case, the respondent was the Carter Ranch Homeowners Association.
Case Participants
Petitioner Side
Thomas J. Van Dan Elzen(petitioner)
Respondent Side
Augustus H. Shaw IV(HOA attorney) Shaw & Lines LLC
The Administrative Law Judge concluded that Bellasera Community Association, Inc. did not violate A.R.S. § 33-1803(B) because the homeowner received constructive notice of the violation and fine structure, satisfying statutory requirements. The petition was dismissed.
Why this result: Petitioner failed to meet the burden of proving Respondent violated A.R.S. § 33-1803(B), as the evidence showed Petitioner received sufficient constructive notice of the alleged violation and had an opportunity to be heard or appeal.
Key Issues & Findings
Whether the HOA violated statutory requirements regarding notice and imposition of monetary penalties/late fees, resulting in suspension of privileges.
Petitioner alleged the HOA violated A.R.S. § 33-1803(B) by imposing fines and suspending gate/clubhouse access without providing adequate (actual) notice of the violation and hearing opportunity, and by improperly imposing late fees. The ALJ found the HOA provided constructive notice, satisfying the statute, and was entitled to impose cumulative fines for the ongoing violation.
Briefing Document: Greco v. Bellasera Community Association, Inc.
Executive Summary
This document synthesizes the findings and decision in the case of Robert L. Greco (Petitioner) versus the Bellasera Community Association, Inc. (Respondent), heard by the Arizona Office of Administrative Hearings. The Administrative Law Judge dismissed the petition, ruling in favor of the Homeowners Association (HOA).
The core dispute originated from a 2013 violation notice regarding a faded garage door. The Petitioner claimed he did not receive the initial notices and only became aware of the issue upon receiving a letter from the HOA’s attorney. Despite subsequently painting the door, an outstanding balance of $750 in fines remained on his account. For six years, the Petitioner paid his quarterly dues but ignored the outstanding fine balance. In June 2019, after failed settlement negotiations, the HOA deactivated the Petitioner’s security gate fob and clubhouse access, prompting him to file the formal dispute.
The judge’s decision rested on two key legal conclusions. First, the court rejected the Petitioner’s argument that “actual notice” was required for the fines to be valid. It ruled that the multiple notices mailed to the Petitioner’s residence constituted sufficient “constructive notice” under Arizona law, providing both notification of the violation and an opportunity to be heard. Second, the court determined that the $750 charge was not an improper late fee but rather three separate, legitimate fines of $250 each, levied for an ongoing, uncorrected violation as per the HOA’s enforcement policy.
Case Overview
Case Name
Robert L Greco, Petitioner, vs. Bellasera Community Association, Inc., Respondent
Case Number
20F-H2019018-REL
Jurisdiction
Arizona Office of Administrative Hearings
Presiding Judge
Administrative Law Judge Tammy L. Eigenheer
Hearing Date
January 9, 2020
Decision Date
January 29, 2020
Petitioner’s Core Allegation
Respondent violated A.R.S. § 33-1803(B) by imposing penalties and revoking privileges without providing proper notice and an opportunity to be heard.
Core Factual Issue
The denial of automatic gate and clubhouse access to the Petitioner on July 1, 2019, due to unpaid fines from 2013.
Chronology of the Dispute
The conflict between Mr. Greco and the Bellasera Community Association unfolded over six years, escalating from a minor maintenance issue to a formal legal dispute and revocation of privileges.
Initial Violation and Fines (2013)
Details
Feb. 5, 2013
Courtesy Notice
Respondent sent a notice to Petitioner’s address stating his garage door was faded and needed to be repainted, in violation of the Design Guidelines.
Mar. 14, 2013
Final Notice & First Fine
A follow-up notice was sent, stating a $250 fine was posted to Petitioner’s account. It warned that an additional $250 fine would be assessed automatically every 14 days if the violation remained uncorrected.
Apr. 2, 2013
Notice of Remedy & Second Fine
A third notice was sent, posting another $250 fine. This letter explicitly warned that the HOA had the “ability to suspend privileges for use of the Recreational Facilities” and informed the Petitioner of his right to appeal within 14 days.
May 7, 2013
Fourth Notice & Third Fine
A fourth notice was sent, posting another $250 fine to the account. It again noted the right to appeal the fine.
Jun. 5, 2013
Letter from HOA Counsel
Attorney Kelly Oetinger sent a letter demanding the garage door be repainted within 15 days. The letter explicitly stated, “If you do not repaint… the Association may disable the transponder you use to enter the community and may disable the fobs you use for the clubhouse.”
Petitioner’s Response and Aftermath (2013)
• July 4, 2013: Petitioner repainted the garage door.
• July 5, 2013: Petitioner sent a letter to the HOA stating the attorney’s letter was his “initial alert of the garage door condition.” He explained his delay by stating, “To effectively manage my workload, I dispose of unsolicited mail… In the future, I will exercise greater caution in disposing of unsolicited mail.”
• July 5, 2013: The HOA sent a letter acknowledging the repainting and offered to settle the $900 in fines for a payment of $500. The letter reiterated the threat to deactivate gate openers and fobs.
• July 17, 2013: The HOA sent a follow-up letter correcting an internal accounting error. The total fines were $750, not $900. A new settlement offer was made: pay $375, and the remaining $375 would be waived.
Period of Inaction (2013 – 2019)
From 2013 to 2019, the Petitioner received quarterly statements from the HOA indicating a $750 balance in addition to current assessments. Each quarter, the Petitioner would physically cross out the $750 balance and pay only the current assessment amount.
Escalation and Revocation of Privileges (2019)
• June 2019: Dennis Carson, a friend of the Petitioner serving on the HOA Board of Directors, informed him that his name was on a penalty list and the Board planned to deactivate his security gate and clubhouse access.
• June 2019: Settlement negotiations failed. The Petitioner offered $100; the Board countered with $250. The Petitioner then offered $251 ($250 for the fine and $1 to rent the clubhouse), which the Board declined.
• July 1, 2019: The Respondent deactivated the Petitioner’s security gate fob and access to the clubhouse.
• October 11, 2019: The Petitioner filed the Homeowners Association Dispute Process Petition, initiating the legal proceedings.
Key Arguments and Legal Findings
The Administrative Law Judge’s decision centered on the interpretation of “notice” as required by state law and the legitimacy of the fines imposed by the HOA.
Petitioner’s Position
1. Lack of Proper Notice: The Petitioner argued that he had not received “actual notice” of the violation or the impending fines until the letter from the HOA’s counsel on June 5, 2013. He asserted that because he acted promptly after receiving that letter, the fines were unjust. His argument implied that warnings in mail he did not personally read could not be held against him.
2. Improper Fines: The Petitioner alleged that the additional $500 in charges on the original $250 fine constituted improper late fees.
Administrative Law Judge’s Conclusions of Law
The Judge systematically refuted the Petitioner’s arguments, concluding that the HOA acted within its rights and in accordance with the law.
1. On the Matter of Notice:
• The governing statute, A.R.S. § 33-1803(B), requires “notice and an opportunity to be heard” before imposing penalties.
• The Judge found no legal authority requiring this to be “actual notice.” To accept this argument would create an unworkable standard where a homeowner could “avoid receiving ‘actual notice’ by simply refusing to sign for a certified mailing.”
• The decision established that the Petitioner received constructive notice through the “multiple mailings that were presumably delivered to his residential address.”
• The notices also informed the Petitioner how to appeal the matter, thereby satisfying the requirement for an “opportunity to be heard.”
• Conclusion: “Accordingly, Petitioner was provided notice and an opportunity to be heard in accordance with A.R.S. § 33-1803(B).”
2. On the Matter of Fines:
• The Judge differentiated between late fees and fines for an ongoing violation.
• The notices sent by the Respondent “clearly stated that an ongoing failure to remedy the violation would result in additional fines every 14 days.”
• The violation persisted from before March 14, 2013 (first fine) until July 5, 2013 (when the door was confirmed painted).
• Conclusion: The Respondent was entitled to impose three separate fines for the “ongoing condition of the garage door,” making the total of $750 legitimate.
Final Order and Implications
Based on the analysis of the evidence and law, the Administrative Law Judge reached a definitive conclusion.
• Final Ruling: “This Tribunal concludes that Respondent did not violate the provisions of A.R.S. § 33-1803(B).”
• Order: “IT IS ORDERED that Petitioner’s petition is dismissed.”
• Binding Nature: The order, dated January 29, 2020, is binding on the parties unless a rehearing is requested with the Commissioner of the Department of Real Estate within 30 days of the service of the order.
Study Guide – 20F-H2019018-REL
Study Guide: Greco v. Bellasera Community Association, Inc.
This guide provides a comprehensive review of the Administrative Law Judge Decision in the case of Robert L. Greco (Petitioner) versus Bellasera Community Association, Inc. (Respondent), Case No. 20F-H2019018-REL. It includes a short-answer quiz to test your knowledge, an answer key for review, a set of essay questions for deeper analysis, and a glossary of key terms.
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 Petitioner and Respondent in this case, and what was the Petitioner’s central complaint that initiated the legal action?
2. What specific violation of the community’s rules was the Petitioner initially accused of, and which governing documents were cited as being violated?
3. Describe the timeline of notices and fines issued by the Respondent between February and May 2013.
4. What was the Petitioner’s explanation for not responding to the initial violation notices from the Respondent before receiving a letter from the association’s attorney?
5. What actions did the Respondent take in or around June 2019 that led the Petitioner to file his petition with the Arizona Department of Real Estate?
6. What was the Petitioner’s primary legal argument regarding the “notice” required by the Arizona statute A.R.S. § 33-1803(B)?
7. How did the Administrative Law Judge differentiate between “actual notice” and “constructive notice” in her decision?
8. Why did the judge ultimately conclude that the Respondent had provided the Petitioner with adequate “notice and an opportunity to be heard”?
9. Explain the Petitioner’s allegation about improper late fees and the reason the judge rejected this argument.
10. What was the final order of the Administrative Law Judge in this case, and what recourse was available to the parties?
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Answer Key
1. The Petitioner was homeowner Robert L. Greco, and the Respondent was the Bellasera Community Association, Inc. (the HOA). Greco’s central complaint, filed on October 11, 2019, was that the HOA had denied him automatic gate access and use of clubhouse facilities on July 1, 2019, despite his being a long-term resident with timely payment of all quarterly dues.
2. The Petitioner was accused of having a faded garage door that needed to be repainted. The violation was cited as being contrary to the CC&Rs (Covenants, Conditions and Restrictions), specifically Article V, Section 5.2, and the community’s Design Guidelines, specifically Article III, Section J.
3. The Respondent sent an initial “Courtesy Notice” on February 5, 2013. This was followed by a “Final Notice” with a $250 fine on March 14, a “Notice of Remedy” with another $250 fine on April 2, and a “Fourth Notice of Non-Compliance” with another $250 fine on May 7, 2013.
4. The Petitioner claimed that the attorney’s letter, received around June 5, 2013, was his “initial alert” regarding the garage door condition. He stated that he routinely disposes of unsolicited mail without reading it and had inadvertently discarded the previous notices sent by the Respondent.
5. In June 2019, after failed settlement negotiations over the outstanding $750 in fines from 2013, the Respondent deactivated the Petitioner’s security gate fob and his access to the clubhouse. This action prompted the Petitioner to file his dispute petition.
6. The Petitioner’s primary argument was that he did not receive “actual notice” of the violation until the attorney’s letter. He contended that because he acted promptly to correct the violation after receiving actual notice, he should not have been fined.
7. The judge used definitions from Black’s Law Dictionary. “Actual notice” was defined as notice given directly to, or personally received by, a party. “Constructive notice” was defined as notice arising by presumption of law from facts and circumstances that a party had a duty to take notice of.
8. The judge concluded that the multiple notices mailed to the Petitioner’s residential address constituted “constructive notice” of the violation. Because the relevant statute, A.R.S. § 33-1803(B), does not explicitly require “actual notice,” and the mailings also advised him of his right to appeal, the judge found the Respondent had fulfilled its obligation to provide notice and an opportunity to be heard.
9. The Petitioner alleged that the additional $500 in fines were improper late fees on the original $250 fine. The judge rejected this, clarifying that the Respondent’s notices stated that additional fines would be assessed every 14 days for an ongoing failure to remedy the violation. Therefore, the additional charges were three separate fines for the “ongoing condition of the garage door,” not late fees.
10. The final order was that the Petitioner’s petition be dismissed. The parties were notified that this order was binding unless a request for rehearing was filed with the Commissioner of the Department of Real Estate within 30 days.
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Essay Questions
The following questions are designed for deeper analysis and discussion. No answers are provided.
1. Analyze the Administrative Law Judge’s reasoning for favoring “constructive notice” over “actual notice” in the context of A.R.S. § 33-1803(B). Discuss the potential consequences for homeowners and HOAs if the ruling had required “actual notice.”
2. Trace the negotiation attempts between the Petitioner and the Respondent in 2013 and 2019. Evaluate the effectiveness of these attempts and discuss whether the dispute could have been resolved without formal legal proceedings.
3. The Petitioner argued that the fines imposed after the initial $250 were improper late fees. The judge, however, characterized them as new fines for an “ongoing condition.” Based on the evidence presented in the notices, construct an argument supporting both the Petitioner’s and the judge’s interpretation.
4. Discuss the concept of “burden of proof” in this case. Explain what “preponderance of the evidence” means and identify the key pieces of evidence that allowed the judge to conclude the Respondent did not violate the statute.
5. Examine the roles of the various community governing documents cited in this case (CC&Rs, Design Guidelines, Violation Enforcement policy). Explain how these documents worked together to grant the Respondent the authority to take action against the Petitioner.
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Glossary of Key Terms
Definition
A.R.S. § 33-1803(B)
The Arizona Revised Statute central to this case, which permits an HOA board to impose reasonable monetary penalties for violations after providing “notice and an opportunity to be heard.”
Actual Notice
As defined in the decision, it is “[n]otice given directly to, or received personally by, a party.”
Administrative Law Judge (ALJ)
The official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues a decision. In this case, it was Tammy L. Eigenheer.
Bellasera Community Association, Inc.
The Respondent in the case; the homeowners association (HOA) for the Bellasera Community in Arizona.
An acronym for Declaration of Covenants, Conditions and Restrictions. These are the governing legal documents for the community, which the Petitioner was found to have violated (specifically Article V, Section 5.2).
Constructive Notice
As defined in the decision, it is “[n]otice arising by presumption of law from the existence of facts and circumstances that a party had a duty to take notice of.” The judge ruled that mail sent to a residence constitutes this form of notice.
Design Guidelines
A set of rules established by the HOA governing the aesthetic appearance of properties. The Petitioner was found in violation of Article III, Section J of these guidelines.
Petitioner
The party who initiates a legal action or petition seeking a ruling. In this case, it was the homeowner, Robert L. Greco.
Preponderance of the evidence
The standard of proof required in this hearing. It is defined as “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force.”
Respondent
The party against whom a petition is filed and who must respond to the allegations. In this case, it was the HOA.
Blog Post – 20F-H2019018-REL
He Threw Away His Mail for Years. His HOA’s Response Is a Warning to Every Homeowner.
That official-looking envelope from your Homeowners Association sits on the counter, a silent challenge. It’s easy to dismiss it as a newsletter or a bland reminder, just another piece of paper to be sorted later. But what if it isn’t? What if that envelope is a legal summons in disguise, the first shot in a battle you don’t even know you’re fighting?
For Robert L. Greco, a resident in his community for 17 years, this hypothetical became a harsh reality. He learned that ignoring HOA correspondence can ignite a conflict that smolders for years before erupting into severe consequences. Originating from a maintenance issue as simple as a faded garage door, his case offers a masterclass in the powerful lessons every homeowner should heed.
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1. The “I Didn’t Read It” Defense Doesn’t Work
The central pillar of the homeowner’s defense was disarmingly simple: he claimed he never received the first four violation notices because he habitually throws away what he considers “unsolicited mail.” He argued that without having read the warnings, he couldn’t be held responsible for the fines.
The judge’s ruling, however, invoked a foundational legal concept that extends far beyond HOA disputes into areas like property deeds and public records: the difference between “actual notice” and “constructive notice.” While actual notice means you personally saw the information, constructive notice presumes you have knowledge of something because it was delivered properly—in this case, mailed to the correct address. Whether you open the envelope is irrelevant.
In a July 5, 2013 letter, the homeowner unwittingly sealed his own fate by describing his mail-handling routine:
Routinely, Saturdays are my mail-pick-up days, and invariably, I walk straight to the re-cyclable container, and deposit the mail in the receptacle… I was astonished to learn that my garage door failed inspection. This is my initial alert of the garage door condition.
For homeowners, the takeaway is a stark one: in the eyes of the law, your recycling bin is not a valid legal defense. The burden doesn’t fall on an HOA to ensure you read your mail, only to send it. The responsibility to open and review all official correspondence rests squarely on the homeowner.
2. A Tiny Issue Can Snowball into a Years-Long Standoff
The timeline of this dispute reveals a classic case of conflict avoidance, where a minor, fixable problem was allowed to spiral into a major legal battle. The cost of a can of paint and a Saturday afternoon of work was ultimately dwarfed by a six-year, $750 dispute that cost the homeowner his access to his own community.
• February 5, 2013: The HOA sends its first “Courtesy Notice” regarding a faded garage door in need of repainting.
• March – May 2013: After no response, the HOA issues three more notices, levying escalating fines that total $750.
• 2013 to 2019: For six years, the homeowner receives quarterly statements showing the $750 balance. Each time, he would “cross out the $750.00 balance and pay the current assessment.”
• June/July 2019: The HOA finally forces the issue by deactivating his security gate fob and his access to the clubhouse.
This progression shows how a simple lack of communication transformed a weekend chore into a years-long standoff. By ignoring the notices and the subsequent fines, the homeowner allowed a molehill to grow into a mountain of conflict.
3. “Continuing Violation” Fines Are Not Late Fees
The homeowner contended that the HOA was improperly stacking late fees on top of an initial $250 penalty. However, the administrative law judge highlighted a critical distinction embedded in the association’s rules.
The HOA wasn’t charging late fees on a single, past-due penalty. It was levying new fines for a “continuing violation.” The notice sent on March 14, 2013, explicitly warned that “an additional fine of $250 will be assessed automatically every 14 days… if the violation remains uncorrected.”
This is a crucial detail found in many HOA bylaws. An unpainted garage door is not a one-time offense; it is an ongoing breach of community standards. A homeowner who thinks they are simply letting a single fine sit unpaid may actually be incurring entirely new violations over time, dramatically increasing their financial liability.
4. Failed Negotiations Can Cost More Than Money
Twice, this dispute could have been resolved. The breakdown in negotiations, however, reveals how ego and principle can prove more costly than the fines themselves.
The first attempt came in 2013, after the homeowner had finally painted the garage. The HOA initially offered to settle a supposed $900 balance for $500. This, however, was based on an “internal accounting error.” In a subsequent letter, the HOA apologized, corrected the record to show the true balance was $750, and made a formal offer: pay half—just $375—and the matter would be closed. The offer was not accepted. Including this error shows the HOA was not infallible, making the subsequent stalemate more complex.
The second negotiation occurred in 2019, prompted by a friend on the Board who urged a settlement. The homeowner offered $100. The Board countered with $250. The homeowner’s final offer was exquisitely specific: “$251.00, $250.00 to settle the outstanding fines and $1.00 to rent the clubhouse on a specific date.”
This offer was a tactical and psychological blunder. That extra dollar wasn’t about money; it was a message. Whether intended as a sarcastic jab or a principled stand to assert his rights as a member, it transformed a financial negotiation into a battle of wills. For a Board of Directors, accepting such an offer could be seen as capitulating to a petty gesture, setting a precedent that defiance works. They declined. Shortly after, the homeowner’s access to community facilities was cut off, leading to the legal petition he ultimately lost.
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Conclusion: A Lesson in Communication
This case serves as a powerful warning. The legal force of “constructive notice” makes you responsible for the mail you receive, not just the mail you read. The six-year standoff over a can of paint shows how inaction can have disproportionate consequences. And the failed $251 offer demonstrates that good-faith negotiation is paramount.
Ultimately, the homeowner was left still owing the money and locked out of his own amenities—a casualty of a battle he prolonged at every turn. It leaves every homeowner with a critical question to consider: in a dispute with your HOA, where is the line between standing on principle and causing yourself unnecessary harm?
Case Participants
Petitioner Side
Robert L Greco(petitioner)
Respondent Side
Nathan Tennyson(attorney) Brown|Olcott, PLLC
David Reid(board member) Testified for Respondent
Annette McCarthy(manager) Acting Manager; Testified for Respondent
Kelly Oetinger(attorney) Counsel for Respondent in 2013
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
19F-H1919071-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2020-01-30
Administrative Law Judge
Velva Moses-Thompson
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Thomas J. Van Dan Elzen
Counsel
—
Respondent
Carter Ranch Homeowners Association
Counsel
Augustus H. Shaw IV, Esq.
Alleged Violations
A.R.S. § 33-1808
Outcome Summary
The Administrative Law Judge dismissed the Petitioner's case, finding that the Petitioner failed to meet the burden of proof to establish that the Respondent HOA violated A.R.S. § 33-1808 or improperly adopted its Flag Display Rule.
Why this result: Petitioner failed to establish a violation of A.R.S. § 33-1808 and failed to prove that the HOA's Flag Display Rule was inconsistent with or improperly adopted under the CC&Rs.
Key Issues & Findings
Flags and Sings
Petitioner Thomas J. Van Dan Elzen filed a petition arguing that the HOA violated A.R.S. § 33-1808 after being notified he violated Association Rules by displaying a “Trump 2020” flag. He argued the HOA's Flag Display Rule was invalid because the CC&Rs only defined SIGNS (DCC&R 3.14) and had no reference to Flags whatsoever, thus the rule was inconsistent with the CC&Rs.
Orders: Petitioner Thomas J. Van Dan Elzen’s petition is dismissed. Respondent is deemed to be the prevailing party.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1808
A.A.C. R2-19-119
BLACK'S LAW DICTIONARY 1182 (6th ed. 1990)
4 United States Code sections 4 through 10
ARIZ. REV. STAT. section 32-2199.02(B)
ARIZ. REV. STAT. section 12-904(A)
Analytics Highlights
Topics: Flag Display, Political Sign, CC&Rs, Rules & Regulations
Administrative Hearing Brief: Van Dan Elzen v. Carter Ranch Homeowners Association
Executive Summary
This document synthesizes the findings and conclusions from two administrative law judge decisions concerning a dispute between homeowner Thomas J. Van Dan Elzen and the Carter Ranch Homeowners Association (HOA). The core conflict arose from Mr. Van Dan Elzen’s display of a “Trump 2020” flag, which the HOA deemed a violation of its “Flag Display Rule.” Mr. Van Dan Elzen petitioned the Arizona Department of Real Estate, alleging the HOA’s rule was invalid and violated Arizona Revised Statutes (A.R.S.) § 33-1808.
The Administrative Law Judge (ALJ) ultimately dismissed the petition, both in the initial hearing and upon a subsequent rehearing. The central findings were that the petitioner failed to meet his burden of proof to demonstrate that the HOA’s rule was inconsistent with its governing documents (CC&Rs) or that the HOA had violated the state statute. The HOA’s authority to create rules restricting the use of lots, granted by its CC&Rs, was upheld. The final decision affirmed the HOA as the prevailing party, concluding a legal challenge that centered on the distinction between statutorily protected flags and political displays.
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I. Case Background and Chronology
The dispute was adjudicated by the Office of Administrative Hearings, with Velva Moses-Thompson serving as the Administrative Law Judge. The case involved a petition filed by a homeowner against his HOA regarding flag display regulations.
Parties Involved:
• Petitioner: Thomas J. Van Dan Elzen (appeared on his own behalf)
• Respondent: Carter Ranch Homeowners Association (represented by Augustus H. Shaw IV, Esq.)
Key Events:
Date (2019-2020)
May 21, 2019
Carter Ranch HOA notifies Mr. Van Dan Elzen that his “Trump 2020” flag violates association rules.
June 14, 2019
Mr. Van Dan Elzen files a petition with the Arizona Department of Real Estate, alleging a violation of A.R.S. § 33-1808.
July 16, 2019
The Department of Real Estate issues a Notice of Hearing.
Sept. 9, 2019
The initial administrative hearing is held.
Sept. 30, 2019
The ALJ issues a decision dismissing the petitioner’s case.
Nov. 18, 2019
The Department of Real Estate issues an order for a rehearing.
Jan. 10, 2020
A rehearing is held.
Jan. 30, 2020
The ALJ issues a final decision on the rehearing, again dismissing the petition.
II. The Core Dispute and Competing Arguments
The central issue was the legality of the Carter Ranch HOA’s rule prohibiting Mr. Van Dan Elzen’s “Trump 2020” flag and the scope of the HOA’s authority to regulate such displays.
A. The Petitioner’s Position (Thomas J. Van Dan Elzen)
Mr. Van Dan Elzen’s challenge was based on the premise that the HOA’s “Flag Display Rule” was invalid because it was not explicitly supported by the language of the community’s Covenants, Conditions, and Restrictions (CC&Rs).
• Primary Argument: He asserted that because the CC&Rs do not specifically contain the word “flag,” any rule created by the HOA Board regulating flags is inconsistent with the CC&Rs and therefore unenforceable.
• Petition Allegation: In his formal petition, Mr. Van Dan Elzen stated the violation was “based on 33-1808 Flags and Sings [sic].” He further argued that the HOA’s rule referenced section 3.14 of the CC&Rs, which he claimed “ONLY defines SIGNS and has no reference to Flags whatsoever.”
B. The Respondent’s Position (Carter Ranch HOA)
The Carter Ranch HOA maintained that its “Flag Display Rule” was a valid exercise of the authority granted to its Board by the community’s governing documents.
• Basis of Authority: The HOA contended that it was authorized to adopt the rule under Article V, Section 5.3 of its CC&Rs.
• Defense of the Rule: The HOA argued that the Flag Display Rule was not inconsistent with the CC&Rs and was properly adopted.
• Argument for Dismissal: Carter Ranch asserted that the petition should be dismissed because the petitioner had not successfully alleged a violation of any statute or provision within the governing documents.
III. Governing Documents and Legal Framework
The case was decided based on an interpretation of both state law and the HOA’s internal governing documents.
A. Carter Ranch Homeowners Association Rules
• The “Flag Display Rule”: The association’s rules and regulations explicitly prohibit the flying of any flag other than the following:
◦ The American Flag
◦ Official or replica flags of the U.S. Army, Navy, Air Force, Marine Corps, or Coast Guard
◦ A POW/MIA flag
◦ The Arizona State flag
◦ An Arizona Indian Nations flag
◦ The Gadsden Flag
• CC&Rs, Article V, Section 5.3: This section grants the HOA Board broad rule-making authority. The text states, in relevant part:
B. Arizona Revised Statutes § 33-1808
This state statute places specific limitations on an HOA’s ability to prohibit certain flags and political signs.
• Section A – Protected Flags: The statute mandates that an HOA “shall not prohibit the outdoor display” of the exact list of flags enumerated in the Carter Ranch “Flag Display Rule” (American, military, POW/MIA, state, etc.). A “Trump 2020” flag is not included in this list of protected flags.
• Section C – Political Signs: The statute addresses political signs separately from flags.
◦ Definition: A “political sign” is defined as “a sign that attempts to influence the outcome of an election.”
◦ Regulation: An HOA may prohibit political signs “earlier than seventy-one days before the day of an election and later than three days after an election day.”
◦ Size/Number: An HOA may regulate the size and number of signs, provided the rules are no more restrictive than local ordinances. If no local ordinance exists, an HOA cannot limit the number of signs but can cap the maximum aggregate dimensions at nine square feet.
IV. Administrative Law Judge’s Conclusions and Final Order
Across both the initial hearing and the rehearing, the ALJ’s conclusions of law consistently favored the respondent HOA. The petitioner failed to meet the required legal standard to prove his case.
A. Burden of Proof
The ALJ established that the petitioner, Mr. Van Dan Elzen, bore the burden of proving by a “preponderance of the evidence” that the HOA had violated A.R.S. § 33-1808. A preponderance of the evidence means showing the fact sought to be proved is “more probable than not.”
B. Key Conclusions of Law
• Validity of the “Flag Display Rule”: The ALJ concluded that the petitioner “had not established that the Association improperly adopted the Flag Display Rule under its CC&Rs.” In the rehearing, this was stated as the petitioner having “not established that the Flag Display Rule was inconsistent with the CC&Rs.”
• No Statutory Violation: A critical conclusion in both decisions was that the petitioner “has not alleged that Carter Ranch violated A.R.S. § 33-1808.”
• Final Judgment: Based on these conclusions, the ALJ determined that Mr. Van Dan Elzen’s petition should be dismissed and that the Carter Ranch HOA should be deemed the prevailing party.
C. Final Order
• Initial Decision (September 30, 2019): “IT IS ORDERED that Petitioner Thomas J. Van Dan Elzen’s petition is dismissed.”
• Rehearing Decision (January 30, 2020): The order to dismiss was reaffirmed. The final notice specified that this order was binding on the parties and that any appeal must be filed for judicial review with the superior court within thirty-five days.
Study Guide – 19F-H1919071-REL-RHG
Study Guide: Van Dan Elzen v. Carter Ranch Homeowners Association
This study guide provides a comprehensive review of the administrative law case involving Thomas J. Van Dan Elzen and the Carter Ranch Homeowners Association, based on the legal decisions from September 2019 and January 2020. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms.
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Short-Answer Quiz
Instructions: Answer the following questions in 2-3 sentences each, based on the provided case documents.
1. Who were the Petitioner and the Respondent in this case, and what was the official case number?
2. What specific action by the Petitioner prompted the initial notice of violation from the homeowners association?
3. What was the Petitioner’s primary legal argument against the validity of the Association’s “Flag Display Rule”?
4. According to the Carter Ranch CC&Rs, what authority does the Board have to create rules and regulations?
5. What is the “preponderance of the evidence,” and which party had the burden of meeting this standard?
6. List at least five of the flags that are explicitly permitted for display under the Carter Ranch “Flag Display Rule.”
7. Summarize the key provisions of Arizona Revised Statute § 33-1808(C) regarding “political signs.”
8. What was the Administrative Law Judge’s conclusion regarding the Petitioner’s claim that the Association improperly adopted the Flag Display Rule?
9. What was the final outcome of the petition after both the initial hearing on September 9, 2019, and the rehearing on January 10, 2020?
10. Who was the Administrative Law Judge that presided over both hearings?
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Answer Key
1. The Petitioner was Thomas J. Van Dan Elzen, and the Respondent was the Carter Ranch Homeowners Association. The case number was 19F-H1919071-REL, with the rehearing designated as 19F-H1919071-REL-RHG.
2. The case was prompted by Mr. Van Dan Elzen displaying a “Trump 2020” flag on a flagpole in his front yard. On or about May 21, 2019, Carter Ranch notified him that this action violated the Association’s rules.
3. The Petitioner argued that the Flag Display Rule was invalid because the community’s Covenants, Conditions, and Restrictions (CC&Rs) do not specifically mention the word “flag.” He asserted that the Association’s rules and regulations can only be based on topics explicitly mentioned in the CC&Rs.
4. Article V, Section 5.3 of the CC&Rs grants the Board the authority to adopt, amend, and repeal rules pertaining to the management of common areas, minimum maintenance standards for lots, the health, safety, or welfare of residents, and restrictions on the use of lots.
5. “Preponderance of the evidence” is evidence that is more convincing and shows that the fact sought to be proved is more probable than not. The Petitioner, Mr. Van Dan Elzen, bore the burden of proving his case by this standard.
6. The Carter Ranch Flag Display Rule permits the display of the American Flag, an official replica of a U.S. military flag (Army, Navy, Air Force, Marine Corps, or Coast Guard), a POW/MIA flag, an Arizona Indian nations flag, the Arizona State flag, and the Gadsden Flag.
7. A.R.S. § 33-1808(C) states that an association cannot prohibit the display of political signs on a member’s property, but it can prohibit them earlier than 71 days before an election and later than 3 days after an election. An association may also regulate the size and number of signs to be no more restrictive than local ordinances, or to a maximum aggregate of nine square feet if no such ordinances exist.
8. The Administrative Law Judge concluded that the Petitioner had not established that the Association improperly adopted the Flag Display Rule under its CC&Rs. The judge found that the rule was not inconsistent with the CC&Rs.
9. In both instances, the Administrative Law Judge ordered that the Petitioner’s petition be dismissed. The Respondent, Carter Ranch Homeowners Association, was deemed the prevailing party in the matter.
10. The Administrative Law Judge for both the initial hearing and the rehearing was Velva Moses-Thompson.
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Suggested Essay Questions
Instructions: The following questions are designed to test a deeper, analytical understanding of the case. Formulate a comprehensive response for each.
1. Analyze the Petitioner’s legal strategy. Why did his argument that the CC&Rs do not explicitly mention the word “flag” ultimately fail to meet the “preponderance of the evidence” standard?
2. Explain the relationship between the Carter Ranch CC&Rs, the Association’s Rules and Regulations, and Arizona Revised Statute § 33-1808. How do these documents interact to govern what a resident can display on their property?
3. Discuss the concept of “burden of proof” in this case. How did the “preponderance of the evidence” standard apply to Thomas J. Van Dan Elzen’s petition, and why did the Administrative Law Judge conclude he did not meet it?
4. Could the “Trump 2020” flag have been considered a “political sign” under the definition provided in A.R.S. § 33-1808(C)? Based on the text, evaluate the potential arguments for and against this classification and how the statute’s time restrictions on display might have been relevant.
5. Examine the authority granted to the Carter Ranch HOA Board by Article V, Section 5.3 of its CC&Rs. How did the HOA use this section to justify its Flag Display Rule, and how did the Administrative Law Judge evaluate this justification?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The judge who presides over administrative hearings. In this case, the ALJ was Velva Moses-Thompson.
A.R.S. § 33-1808
The Arizona Revised Statute that, notwithstanding community documents, protects the right of homeowners to display certain flags (American, military, POW/MIA, state, etc.) and regulates how an association may restrict political signs.
Burden of Proof
The obligation of a party in a legal proceeding to provide evidence to prove their claim. In this case, the Petitioner had the burden of proof.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing legal documents that set up the guidelines for a planned community or homeowners association. In this case, Article V, Section 5.3 of the CC&Rs gave the Board authority to create rules.
Flag Display Rule
The specific Carter Ranch Association rule prohibiting any flag other than the American Flag, specific military flags, POW/MIA flag, Arizona Indian National flag, Arizona State flag, and the Gadsden Flag.
Petitioner
The party who files a petition to initiate a legal proceeding. In this case, the petitioner was Thomas J. Van Dan Elzen.
Political Sign
As defined in A.R.S. § 33-1808(C), “a sign that attempts to influence the outcome of an election, including supporting or opposing the recall of a public officer or supporting or opposing the circulation of a petition for a ballot measure, question or proposition or the recall of a public officer.”
Preponderance of the Evidence
The standard of proof required in this proceeding. Defined in the decision as “[e]vidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”
Rehearing
A second hearing of a case. In this matter, a rehearing was held on January 10, 2020, after the initial decision was made on September 30, 2019.
Respondent
The party against whom a petition is filed. In this case, the respondent was the Carter Ranch Homeowners Association.
Blog Post – 19F-H1919071-REL-RHG
Study Guide: Van Dan Elzen v. Carter Ranch Homeowners Association
This study guide provides a comprehensive review of the administrative law case involving Thomas J. Van Dan Elzen and the Carter Ranch Homeowners Association, based on the legal decisions from September 2019 and January 2020. 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 2-3 sentences each, based on the provided case documents.
1. Who were the Petitioner and the Respondent in this case, and what was the official case number?
2. What specific action by the Petitioner prompted the initial notice of violation from the homeowners association?
3. What was the Petitioner’s primary legal argument against the validity of the Association’s “Flag Display Rule”?
4. According to the Carter Ranch CC&Rs, what authority does the Board have to create rules and regulations?
5. What is the “preponderance of the evidence,” and which party had the burden of meeting this standard?
6. List at least five of the flags that are explicitly permitted for display under the Carter Ranch “Flag Display Rule.”
7. Summarize the key provisions of Arizona Revised Statute § 33-1808(C) regarding “political signs.”
8. What was the Administrative Law Judge’s conclusion regarding the Petitioner’s claim that the Association improperly adopted the Flag Display Rule?
9. What was the final outcome of the petition after both the initial hearing on September 9, 2019, and the rehearing on January 10, 2020?
10. Who was the Administrative Law Judge that presided over both hearings?
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Answer Key
1. The Petitioner was Thomas J. Van Dan Elzen, and the Respondent was the Carter Ranch Homeowners Association. The case number was 19F-H1919071-REL, with the rehearing designated as 19F-H1919071-REL-RHG.
2. The case was prompted by Mr. Van Dan Elzen displaying a “Trump 2020” flag on a flagpole in his front yard. On or about May 21, 2019, Carter Ranch notified him that this action violated the Association’s rules.
3. The Petitioner argued that the Flag Display Rule was invalid because the community’s Covenants, Conditions, and Restrictions (CC&Rs) do not specifically mention the word “flag.” He asserted that the Association’s rules and regulations can only be based on topics explicitly mentioned in the CC&Rs.
4. Article V, Section 5.3 of the CC&Rs grants the Board the authority to adopt, amend, and repeal rules pertaining to the management of common areas, minimum maintenance standards for lots, the health, safety, or welfare of residents, and restrictions on the use of lots.
5. “Preponderance of the evidence” is evidence that is more convincing and shows that the fact sought to be proved is more probable than not. The Petitioner, Mr. Van Dan Elzen, bore the burden of proving his case by this standard.
6. The Carter Ranch Flag Display Rule permits the display of the American Flag, an official replica of a U.S. military flag (Army, Navy, Air Force, Marine Corps, or Coast Guard), a POW/MIA flag, an Arizona Indian nations flag, the Arizona State flag, and the Gadsden Flag.
7. A.R.S. § 33-1808(C) states that an association cannot prohibit the display of political signs on a member’s property, but it can prohibit them earlier than 71 days before an election and later than 3 days after an election. An association may also regulate the size and number of signs to be no more restrictive than local ordinances, or to a maximum aggregate of nine square feet if no such ordinances exist.
8. The Administrative Law Judge concluded that the Petitioner had not established that the Association improperly adopted the Flag Display Rule under its CC&Rs. The judge found that the rule was not inconsistent with the CC&Rs.
9. In both instances, the Administrative Law Judge ordered that the Petitioner’s petition be dismissed. The Respondent, Carter Ranch Homeowners Association, was deemed the prevailing party in the matter.
10. The Administrative Law Judge for both the initial hearing and the rehearing was Velva Moses-Thompson.
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Suggested Essay Questions
Instructions: The following questions are designed to test a deeper, analytical understanding of the case. Formulate a comprehensive response for each.
1. Analyze the Petitioner’s legal strategy. Why did his argument that the CC&Rs do not explicitly mention the word “flag” ultimately fail to meet the “preponderance of the evidence” standard?
2. Explain the relationship between the Carter Ranch CC&Rs, the Association’s Rules and Regulations, and Arizona Revised Statute § 33-1808. How do these documents interact to govern what a resident can display on their property?
3. Discuss the concept of “burden of proof” in this case. How did the “preponderance of the evidence” standard apply to Thomas J. Van Dan Elzen’s petition, and why did the Administrative Law Judge conclude he did not meet it?
4. Could the “Trump 2020” flag have been considered a “political sign” under the definition provided in A.R.S. § 33-1808(C)? Based on the text, evaluate the potential arguments for and against this classification and how the statute’s time restrictions on display might have been relevant.
5. Examine the authority granted to the Carter Ranch HOA Board by Article V, Section 5.3 of its CC&Rs. How did the HOA use this section to justify its Flag Display Rule, and how did the Administrative Law Judge evaluate this justification?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The judge who presides over administrative hearings. In this case, the ALJ was Velva Moses-Thompson.
A.R.S. § 33-1808
The Arizona Revised Statute that, notwithstanding community documents, protects the right of homeowners to display certain flags (American, military, POW/MIA, state, etc.) and regulates how an association may restrict political signs.
Burden of Proof
The obligation of a party in a legal proceeding to provide evidence to prove their claim. In this case, the Petitioner had the burden of proof.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing legal documents that set up the guidelines for a planned community or homeowners association. In this case, Article V, Section 5.3 of the CC&Rs gave the Board authority to create rules.
Flag Display Rule
The specific Carter Ranch Association rule prohibiting any flag other than the American Flag, specific military flags, POW/MIA flag, Arizona Indian National flag, Arizona State flag, and the Gadsden Flag.
Petitioner
The party who files a petition to initiate a legal proceeding. In this case, the petitioner was Thomas J. Van Dan Elzen.
Political Sign
As defined in A.R.S. § 33-1808(C), “a sign that attempts to influence the outcome of an election, including supporting or opposing the recall of a public officer or supporting or opposing the circulation of a petition for a ballot measure, question or proposition or the recall of a public officer.”
Preponderance of the Evidence
The standard of proof required in this proceeding. Defined in the decision as “[e]vidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”
Rehearing
A second hearing of a case. In this matter, a rehearing was held on January 10, 2020, after the initial decision was made on September 30, 2019.
Respondent
The party against whom a petition is filed. In this case, the respondent was the Carter Ranch Homeowners Association.
Case Participants
Petitioner Side
Thomas J. Van Dan Elzen(petitioner)
Respondent Side
Augustus H. Shaw IV(HOA attorney) Shaw & Lines LLC
The Administrative Law Judge concluded that Bellasera Community Association, Inc. did not violate A.R.S. § 33-1803(B) because the homeowner received constructive notice of the violation and fine structure, satisfying statutory requirements. The petition was dismissed.
Why this result: Petitioner failed to meet the burden of proving Respondent violated A.R.S. § 33-1803(B), as the evidence showed Petitioner received sufficient constructive notice of the alleged violation and had an opportunity to be heard or appeal.
Key Issues & Findings
Whether the HOA violated statutory requirements regarding notice and imposition of monetary penalties/late fees, resulting in suspension of privileges.
Petitioner alleged the HOA violated A.R.S. § 33-1803(B) by imposing fines and suspending gate/clubhouse access without providing adequate (actual) notice of the violation and hearing opportunity, and by improperly imposing late fees. The ALJ found the HOA provided constructive notice, satisfying the statute, and was entitled to impose cumulative fines for the ongoing violation.
Briefing Document: Greco v. Bellasera Community Association, Inc.
Executive Summary
This document synthesizes the findings and decision in the case of Robert L. Greco (Petitioner) versus the Bellasera Community Association, Inc. (Respondent), heard by the Arizona Office of Administrative Hearings. The Administrative Law Judge dismissed the petition, ruling in favor of the Homeowners Association (HOA).
The core dispute originated from a 2013 violation notice regarding a faded garage door. The Petitioner claimed he did not receive the initial notices and only became aware of the issue upon receiving a letter from the HOA’s attorney. Despite subsequently painting the door, an outstanding balance of $750 in fines remained on his account. For six years, the Petitioner paid his quarterly dues but ignored the outstanding fine balance. In June 2019, after failed settlement negotiations, the HOA deactivated the Petitioner’s security gate fob and clubhouse access, prompting him to file the formal dispute.
The judge’s decision rested on two key legal conclusions. First, the court rejected the Petitioner’s argument that “actual notice” was required for the fines to be valid. It ruled that the multiple notices mailed to the Petitioner’s residence constituted sufficient “constructive notice” under Arizona law, providing both notification of the violation and an opportunity to be heard. Second, the court determined that the $750 charge was not an improper late fee but rather three separate, legitimate fines of $250 each, levied for an ongoing, uncorrected violation as per the HOA’s enforcement policy.
Case Overview
Case Name
Robert L Greco, Petitioner, vs. Bellasera Community Association, Inc., Respondent
Case Number
20F-H2019018-REL
Jurisdiction
Arizona Office of Administrative Hearings
Presiding Judge
Administrative Law Judge Tammy L. Eigenheer
Hearing Date
January 9, 2020
Decision Date
January 29, 2020
Petitioner’s Core Allegation
Respondent violated A.R.S. § 33-1803(B) by imposing penalties and revoking privileges without providing proper notice and an opportunity to be heard.
Core Factual Issue
The denial of automatic gate and clubhouse access to the Petitioner on July 1, 2019, due to unpaid fines from 2013.
Chronology of the Dispute
The conflict between Mr. Greco and the Bellasera Community Association unfolded over six years, escalating from a minor maintenance issue to a formal legal dispute and revocation of privileges.
Initial Violation and Fines (2013)
Details
Feb. 5, 2013
Courtesy Notice
Respondent sent a notice to Petitioner’s address stating his garage door was faded and needed to be repainted, in violation of the Design Guidelines.
Mar. 14, 2013
Final Notice & First Fine
A follow-up notice was sent, stating a $250 fine was posted to Petitioner’s account. It warned that an additional $250 fine would be assessed automatically every 14 days if the violation remained uncorrected.
Apr. 2, 2013
Notice of Remedy & Second Fine
A third notice was sent, posting another $250 fine. This letter explicitly warned that the HOA had the “ability to suspend privileges for use of the Recreational Facilities” and informed the Petitioner of his right to appeal within 14 days.
May 7, 2013
Fourth Notice & Third Fine
A fourth notice was sent, posting another $250 fine to the account. It again noted the right to appeal the fine.
Jun. 5, 2013
Letter from HOA Counsel
Attorney Kelly Oetinger sent a letter demanding the garage door be repainted within 15 days. The letter explicitly stated, “If you do not repaint… the Association may disable the transponder you use to enter the community and may disable the fobs you use for the clubhouse.”
Petitioner’s Response and Aftermath (2013)
• July 4, 2013: Petitioner repainted the garage door.
• July 5, 2013: Petitioner sent a letter to the HOA stating the attorney’s letter was his “initial alert of the garage door condition.” He explained his delay by stating, “To effectively manage my workload, I dispose of unsolicited mail… In the future, I will exercise greater caution in disposing of unsolicited mail.”
• July 5, 2013: The HOA sent a letter acknowledging the repainting and offered to settle the $900 in fines for a payment of $500. The letter reiterated the threat to deactivate gate openers and fobs.
• July 17, 2013: The HOA sent a follow-up letter correcting an internal accounting error. The total fines were $750, not $900. A new settlement offer was made: pay $375, and the remaining $375 would be waived.
Period of Inaction (2013 – 2019)
From 2013 to 2019, the Petitioner received quarterly statements from the HOA indicating a $750 balance in addition to current assessments. Each quarter, the Petitioner would physically cross out the $750 balance and pay only the current assessment amount.
Escalation and Revocation of Privileges (2019)
• June 2019: Dennis Carson, a friend of the Petitioner serving on the HOA Board of Directors, informed him that his name was on a penalty list and the Board planned to deactivate his security gate and clubhouse access.
• June 2019: Settlement negotiations failed. The Petitioner offered $100; the Board countered with $250. The Petitioner then offered $251 ($250 for the fine and $1 to rent the clubhouse), which the Board declined.
• July 1, 2019: The Respondent deactivated the Petitioner’s security gate fob and access to the clubhouse.
• October 11, 2019: The Petitioner filed the Homeowners Association Dispute Process Petition, initiating the legal proceedings.
Key Arguments and Legal Findings
The Administrative Law Judge’s decision centered on the interpretation of “notice” as required by state law and the legitimacy of the fines imposed by the HOA.
Petitioner’s Position
1. Lack of Proper Notice: The Petitioner argued that he had not received “actual notice” of the violation or the impending fines until the letter from the HOA’s counsel on June 5, 2013. He asserted that because he acted promptly after receiving that letter, the fines were unjust. His argument implied that warnings in mail he did not personally read could not be held against him.
2. Improper Fines: The Petitioner alleged that the additional $500 in charges on the original $250 fine constituted improper late fees.
Administrative Law Judge’s Conclusions of Law
The Judge systematically refuted the Petitioner’s arguments, concluding that the HOA acted within its rights and in accordance with the law.
1. On the Matter of Notice:
• The governing statute, A.R.S. § 33-1803(B), requires “notice and an opportunity to be heard” before imposing penalties.
• The Judge found no legal authority requiring this to be “actual notice.” To accept this argument would create an unworkable standard where a homeowner could “avoid receiving ‘actual notice’ by simply refusing to sign for a certified mailing.”
• The decision established that the Petitioner received constructive notice through the “multiple mailings that were presumably delivered to his residential address.”
• The notices also informed the Petitioner how to appeal the matter, thereby satisfying the requirement for an “opportunity to be heard.”
• Conclusion: “Accordingly, Petitioner was provided notice and an opportunity to be heard in accordance with A.R.S. § 33-1803(B).”
2. On the Matter of Fines:
• The Judge differentiated between late fees and fines for an ongoing violation.
• The notices sent by the Respondent “clearly stated that an ongoing failure to remedy the violation would result in additional fines every 14 days.”
• The violation persisted from before March 14, 2013 (first fine) until July 5, 2013 (when the door was confirmed painted).
• Conclusion: The Respondent was entitled to impose three separate fines for the “ongoing condition of the garage door,” making the total of $750 legitimate.
Final Order and Implications
Based on the analysis of the evidence and law, the Administrative Law Judge reached a definitive conclusion.
• Final Ruling: “This Tribunal concludes that Respondent did not violate the provisions of A.R.S. § 33-1803(B).”
• Order: “IT IS ORDERED that Petitioner’s petition is dismissed.”
• Binding Nature: The order, dated January 29, 2020, is binding on the parties unless a rehearing is requested with the Commissioner of the Department of Real Estate within 30 days of the service of the order.
Study Guide – 20F-H2019018-REL
Study Guide: Greco v. Bellasera Community Association, Inc.
This guide provides a comprehensive review of the Administrative Law Judge Decision in the case of Robert L. Greco (Petitioner) versus Bellasera Community Association, Inc. (Respondent), Case No. 20F-H2019018-REL. It includes a short-answer quiz to test your knowledge, an answer key for review, a set of essay questions for deeper analysis, and a glossary of key terms.
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 Petitioner and Respondent in this case, and what was the Petitioner’s central complaint that initiated the legal action?
2. What specific violation of the community’s rules was the Petitioner initially accused of, and which governing documents were cited as being violated?
3. Describe the timeline of notices and fines issued by the Respondent between February and May 2013.
4. What was the Petitioner’s explanation for not responding to the initial violation notices from the Respondent before receiving a letter from the association’s attorney?
5. What actions did the Respondent take in or around June 2019 that led the Petitioner to file his petition with the Arizona Department of Real Estate?
6. What was the Petitioner’s primary legal argument regarding the “notice” required by the Arizona statute A.R.S. § 33-1803(B)?
7. How did the Administrative Law Judge differentiate between “actual notice” and “constructive notice” in her decision?
8. Why did the judge ultimately conclude that the Respondent had provided the Petitioner with adequate “notice and an opportunity to be heard”?
9. Explain the Petitioner’s allegation about improper late fees and the reason the judge rejected this argument.
10. What was the final order of the Administrative Law Judge in this case, and what recourse was available to the parties?
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Answer Key
1. The Petitioner was homeowner Robert L. Greco, and the Respondent was the Bellasera Community Association, Inc. (the HOA). Greco’s central complaint, filed on October 11, 2019, was that the HOA had denied him automatic gate access and use of clubhouse facilities on July 1, 2019, despite his being a long-term resident with timely payment of all quarterly dues.
2. The Petitioner was accused of having a faded garage door that needed to be repainted. The violation was cited as being contrary to the CC&Rs (Covenants, Conditions and Restrictions), specifically Article V, Section 5.2, and the community’s Design Guidelines, specifically Article III, Section J.
3. The Respondent sent an initial “Courtesy Notice” on February 5, 2013. This was followed by a “Final Notice” with a $250 fine on March 14, a “Notice of Remedy” with another $250 fine on April 2, and a “Fourth Notice of Non-Compliance” with another $250 fine on May 7, 2013.
4. The Petitioner claimed that the attorney’s letter, received around June 5, 2013, was his “initial alert” regarding the garage door condition. He stated that he routinely disposes of unsolicited mail without reading it and had inadvertently discarded the previous notices sent by the Respondent.
5. In June 2019, after failed settlement negotiations over the outstanding $750 in fines from 2013, the Respondent deactivated the Petitioner’s security gate fob and his access to the clubhouse. This action prompted the Petitioner to file his dispute petition.
6. The Petitioner’s primary argument was that he did not receive “actual notice” of the violation until the attorney’s letter. He contended that because he acted promptly to correct the violation after receiving actual notice, he should not have been fined.
7. The judge used definitions from Black’s Law Dictionary. “Actual notice” was defined as notice given directly to, or personally received by, a party. “Constructive notice” was defined as notice arising by presumption of law from facts and circumstances that a party had a duty to take notice of.
8. The judge concluded that the multiple notices mailed to the Petitioner’s residential address constituted “constructive notice” of the violation. Because the relevant statute, A.R.S. § 33-1803(B), does not explicitly require “actual notice,” and the mailings also advised him of his right to appeal, the judge found the Respondent had fulfilled its obligation to provide notice and an opportunity to be heard.
9. The Petitioner alleged that the additional $500 in fines were improper late fees on the original $250 fine. The judge rejected this, clarifying that the Respondent’s notices stated that additional fines would be assessed every 14 days for an ongoing failure to remedy the violation. Therefore, the additional charges were three separate fines for the “ongoing condition of the garage door,” not late fees.
10. The final order was that the Petitioner’s petition be dismissed. The parties were notified that this order was binding unless a request for rehearing was filed with the Commissioner of the Department of Real Estate within 30 days.
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Essay Questions
The following questions are designed for deeper analysis and discussion. No answers are provided.
1. Analyze the Administrative Law Judge’s reasoning for favoring “constructive notice” over “actual notice” in the context of A.R.S. § 33-1803(B). Discuss the potential consequences for homeowners and HOAs if the ruling had required “actual notice.”
2. Trace the negotiation attempts between the Petitioner and the Respondent in 2013 and 2019. Evaluate the effectiveness of these attempts and discuss whether the dispute could have been resolved without formal legal proceedings.
3. The Petitioner argued that the fines imposed after the initial $250 were improper late fees. The judge, however, characterized them as new fines for an “ongoing condition.” Based on the evidence presented in the notices, construct an argument supporting both the Petitioner’s and the judge’s interpretation.
4. Discuss the concept of “burden of proof” in this case. Explain what “preponderance of the evidence” means and identify the key pieces of evidence that allowed the judge to conclude the Respondent did not violate the statute.
5. Examine the roles of the various community governing documents cited in this case (CC&Rs, Design Guidelines, Violation Enforcement policy). Explain how these documents worked together to grant the Respondent the authority to take action against the Petitioner.
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Glossary of Key Terms
Definition
A.R.S. § 33-1803(B)
The Arizona Revised Statute central to this case, which permits an HOA board to impose reasonable monetary penalties for violations after providing “notice and an opportunity to be heard.”
Actual Notice
As defined in the decision, it is “[n]otice given directly to, or received personally by, a party.”
Administrative Law Judge (ALJ)
The official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues a decision. In this case, it was Tammy L. Eigenheer.
Bellasera Community Association, Inc.
The Respondent in the case; the homeowners association (HOA) for the Bellasera Community in Arizona.
An acronym for Declaration of Covenants, Conditions and Restrictions. These are the governing legal documents for the community, which the Petitioner was found to have violated (specifically Article V, Section 5.2).
Constructive Notice
As defined in the decision, it is “[n]otice arising by presumption of law from the existence of facts and circumstances that a party had a duty to take notice of.” The judge ruled that mail sent to a residence constitutes this form of notice.
Design Guidelines
A set of rules established by the HOA governing the aesthetic appearance of properties. The Petitioner was found in violation of Article III, Section J of these guidelines.
Petitioner
The party who initiates a legal action or petition seeking a ruling. In this case, it was the homeowner, Robert L. Greco.
Preponderance of the evidence
The standard of proof required in this hearing. It is defined as “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force.”
Respondent
The party against whom a petition is filed and who must respond to the allegations. In this case, it was the HOA.
Blog Post – 20F-H2019018-REL
He Threw Away His Mail for Years. His HOA’s Response Is a Warning to Every Homeowner.
That official-looking envelope from your Homeowners Association sits on the counter, a silent challenge. It’s easy to dismiss it as a newsletter or a bland reminder, just another piece of paper to be sorted later. But what if it isn’t? What if that envelope is a legal summons in disguise, the first shot in a battle you don’t even know you’re fighting?
For Robert L. Greco, a resident in his community for 17 years, this hypothetical became a harsh reality. He learned that ignoring HOA correspondence can ignite a conflict that smolders for years before erupting into severe consequences. Originating from a maintenance issue as simple as a faded garage door, his case offers a masterclass in the powerful lessons every homeowner should heed.
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1. The “I Didn’t Read It” Defense Doesn’t Work
The central pillar of the homeowner’s defense was disarmingly simple: he claimed he never received the first four violation notices because he habitually throws away what he considers “unsolicited mail.” He argued that without having read the warnings, he couldn’t be held responsible for the fines.
The judge’s ruling, however, invoked a foundational legal concept that extends far beyond HOA disputes into areas like property deeds and public records: the difference between “actual notice” and “constructive notice.” While actual notice means you personally saw the information, constructive notice presumes you have knowledge of something because it was delivered properly—in this case, mailed to the correct address. Whether you open the envelope is irrelevant.
In a July 5, 2013 letter, the homeowner unwittingly sealed his own fate by describing his mail-handling routine:
Routinely, Saturdays are my mail-pick-up days, and invariably, I walk straight to the re-cyclable container, and deposit the mail in the receptacle… I was astonished to learn that my garage door failed inspection. This is my initial alert of the garage door condition.
For homeowners, the takeaway is a stark one: in the eyes of the law, your recycling bin is not a valid legal defense. The burden doesn’t fall on an HOA to ensure you read your mail, only to send it. The responsibility to open and review all official correspondence rests squarely on the homeowner.
2. A Tiny Issue Can Snowball into a Years-Long Standoff
The timeline of this dispute reveals a classic case of conflict avoidance, where a minor, fixable problem was allowed to spiral into a major legal battle. The cost of a can of paint and a Saturday afternoon of work was ultimately dwarfed by a six-year, $750 dispute that cost the homeowner his access to his own community.
• February 5, 2013: The HOA sends its first “Courtesy Notice” regarding a faded garage door in need of repainting.
• March – May 2013: After no response, the HOA issues three more notices, levying escalating fines that total $750.
• 2013 to 2019: For six years, the homeowner receives quarterly statements showing the $750 balance. Each time, he would “cross out the $750.00 balance and pay the current assessment.”
• June/July 2019: The HOA finally forces the issue by deactivating his security gate fob and his access to the clubhouse.
This progression shows how a simple lack of communication transformed a weekend chore into a years-long standoff. By ignoring the notices and the subsequent fines, the homeowner allowed a molehill to grow into a mountain of conflict.
3. “Continuing Violation” Fines Are Not Late Fees
The homeowner contended that the HOA was improperly stacking late fees on top of an initial $250 penalty. However, the administrative law judge highlighted a critical distinction embedded in the association’s rules.
The HOA wasn’t charging late fees on a single, past-due penalty. It was levying new fines for a “continuing violation.” The notice sent on March 14, 2013, explicitly warned that “an additional fine of $250 will be assessed automatically every 14 days… if the violation remains uncorrected.”
This is a crucial detail found in many HOA bylaws. An unpainted garage door is not a one-time offense; it is an ongoing breach of community standards. A homeowner who thinks they are simply letting a single fine sit unpaid may actually be incurring entirely new violations over time, dramatically increasing their financial liability.
4. Failed Negotiations Can Cost More Than Money
Twice, this dispute could have been resolved. The breakdown in negotiations, however, reveals how ego and principle can prove more costly than the fines themselves.
The first attempt came in 2013, after the homeowner had finally painted the garage. The HOA initially offered to settle a supposed $900 balance for $500. This, however, was based on an “internal accounting error.” In a subsequent letter, the HOA apologized, corrected the record to show the true balance was $750, and made a formal offer: pay half—just $375—and the matter would be closed. The offer was not accepted. Including this error shows the HOA was not infallible, making the subsequent stalemate more complex.
The second negotiation occurred in 2019, prompted by a friend on the Board who urged a settlement. The homeowner offered $100. The Board countered with $250. The homeowner’s final offer was exquisitely specific: “$251.00, $250.00 to settle the outstanding fines and $1.00 to rent the clubhouse on a specific date.”
This offer was a tactical and psychological blunder. That extra dollar wasn’t about money; it was a message. Whether intended as a sarcastic jab or a principled stand to assert his rights as a member, it transformed a financial negotiation into a battle of wills. For a Board of Directors, accepting such an offer could be seen as capitulating to a petty gesture, setting a precedent that defiance works. They declined. Shortly after, the homeowner’s access to community facilities was cut off, leading to the legal petition he ultimately lost.
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Conclusion: A Lesson in Communication
This case serves as a powerful warning. The legal force of “constructive notice” makes you responsible for the mail you receive, not just the mail you read. The six-year standoff over a can of paint shows how inaction can have disproportionate consequences. And the failed $251 offer demonstrates that good-faith negotiation is paramount.
Ultimately, the homeowner was left still owing the money and locked out of his own amenities—a casualty of a battle he prolonged at every turn. It leaves every homeowner with a critical question to consider: in a dispute with your HOA, where is the line between standing on principle and causing yourself unnecessary harm?
Case Participants
Petitioner Side
Robert L Greco(petitioner)
Respondent Side
Nathan Tennyson(attorney) Brown|Olcott, PLLC
David Reid(board member) Testified for Respondent
Annette McCarthy(manager) Acting Manager; Testified for Respondent
Kelly Oetinger(attorney) Counsel for Respondent in 2013
The Administrative Law Judge dismissed the Petitioner's case, finding that the Petitioner failed to meet the burden of proof to establish that the Respondent HOA violated A.R.S. § 33-1808 or improperly adopted its Flag Display Rule.
Why this result: Petitioner failed to establish a violation of A.R.S. § 33-1808 and failed to prove that the HOA's Flag Display Rule was inconsistent with or improperly adopted under the CC&Rs.
Key Issues & Findings
Flags and Sings
Petitioner Thomas J. Van Dan Elzen filed a petition arguing that the HOA violated A.R.S. § 33-1808 after being notified he violated Association Rules by displaying a “Trump 2020” flag. He argued the HOA's Flag Display Rule was invalid because the CC&Rs only defined SIGNS (DCC&R 3.14) and had no reference to Flags whatsoever, thus the rule was inconsistent with the CC&Rs.
Orders: Petitioner Thomas J. Van Dan Elzen’s petition is dismissed. Respondent is deemed to be the prevailing party.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1808
A.A.C. R2-19-119
BLACK'S LAW DICTIONARY 1182 (6th ed. 1990)
4 United States Code sections 4 through 10
ARIZ. REV. STAT. section 32-2199.02(B)
ARIZ. REV. STAT. section 12-904(A)
Analytics Highlights
Topics: Flag Display, Political Sign, CC&Rs, Rules & Regulations
Additional Citations:
A.R.S. § 33-1808
A.A.C. R2-19-119
4 United States Code sections 4 through 10
Audio Overview
Decision Documents
19F-H1919071-REL Decision – 767071.pdf
Uploaded 2025-10-08T07:09:41 (69.0 KB)
Briefing Doc – 19F-H1919071-REL
Administrative Hearing Briefing: Van Dan Elzen v. Carter Ranch HOA
Executive Summary
This document provides a comprehensive analysis of the Administrative Law Judge (ALJ) Decision in the case of Thomas J. Van Dan Elzen versus the Carter Ranch Homeowners Association (HOA), case number 19F-H1919071-REL-RHG. The dispute centered on the HOA’s prohibition of a “Trump 2020” flag displayed by Mr. Van Dan Elzen at his property. The petitioner alleged this prohibition violated Arizona state law.
The ALJ ultimately dismissed the petition, ruling in favor of the Carter Ranch HOA. The decision was based on the petitioner’s failure to prove by a preponderance of the evidence that the HOA’s “Flag Display Rule” was inconsistent with its foundational Covenants, Conditions, and Restrictions (CC&Rs) or that the rule was improperly adopted. Crucially, the ALJ found that the petitioner had not sufficiently alleged a direct violation of the relevant state statute, A.R.S. § 33-1808. The ruling effectively upholds the HOA’s authority, granted by its CC&Rs, to regulate the display of flags not explicitly protected by Arizona law.
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I. Case Overview
• Case Name: Thomas J. Van Dan Elzen, Petitioner, vs. Carter Ranch Homeowners Association, Respondent.
• Case Number: 19F-H1919071-REL-RHG
• Adjudicating Body: Arizona Office of Administrative Hearings
• Presiding Judge: Administrative Law Judge Velva Moses-Thompson
• Hearing Date: January 10, 2020
• Decision Date: January 30, 2020
• Subject of Dispute: The validity of an HOA rule prohibiting the display of a “Trump 2020” political flag, which the petitioner claimed violated A.R.S. § 33-1808.
II. Chronology of Key Events
• May 21, 2019: Carter Ranch HOA notifies petitioner Thomas J. Van Dan Elzen that his “Trump 2020” flag violates Association Rules.
• June 14, 2019: Mr. Van Dan Elzen files a petition with the Arizona Department of Real Estate, alleging the HOA violated A.R.S. § 33-1808.
• November 18, 2019: The Department of Real Estate issues an order setting the matter for a rehearing.
• January 10, 2020: The rehearing is held before an Administrative Law Judge.
III. Petitioner’s Position (Thomas J. Van Dan Elzen)
Mr. Van Dan Elzen’s case was predicated on the argument that the HOA’s rules regarding flags were inconsistent with its own governing documents, specifically the Covenants, Conditions, and Restrictions (CC&Rs).
• Core Allegation: The HOA’s enforcement action violated A.R.S. § 33-1808, which governs flags and signs.
• Primary Argument: Mr. Van Dan Elzen contended that the HOA’s “Flag Display Rule” was invalid because the CC&Rs do not explicitly mention the word “flag.” He argued that the relevant section of the governing documents, DCC&R 3.14, only defines “SIGNS.”
• Direct Quotation from Petition: The petition stated the following, highlighting the perceived discrepancy:
IV. Respondent’s Position (Carter Ranch HOA)
The Carter Ranch HOA maintained that its “Flag Display Rule” was valid, properly enacted, and did not violate state law or its own governing documents.
• The “Flag Display Rule”: The HOA’s rules explicitly prohibit flying any flag other than those on an approved list, which includes:
◦ The American Flag
◦ Official flags of the U.S. Army, Navy, Air Force, Marine Corps, or Coast Guard
◦ A POW/MIA flag
◦ An Arizona Indian National flag
◦ The Arizona State flag
◦ The Gadsden Flag
• Authority to Regulate: The HOA asserted its authority to create this rule stemmed from Article V, Section 5.3 of its CC&Rs. This section grants the Board the power to adopt, amend, and repeal rules pertaining to “the health, safety or welfare of the owners… or restrictions on the use of Lots.” It also specifies that such rules are “enforceable in the same manner” as the CC&Rs themselves.
• Defense Arguments: The HOA contended that the petition should be dismissed because:
1. The Flag Display Rule was not inconsistent with the CC&Rs.
2. The rule was properly adopted under the authority granted in the CC&Rs.
3. The petitioner failed to allege that the HOA had actually violated a specific statute or provision of its governing documents.
V. Analysis of Governing Law: A.R.S. § 33-1808
This Arizona Revised Statute was central to the dispute. It places specific limitations on an HOA’s ability to regulate the display of certain flags and political signs.
Provision
Description of Regulation
Subsection A: Protected Flags
An HOA cannot prohibit the outdoor display of: The American flag (if displayed consistent with federal code), official U.S. military flags, the POW/MIA flag, the Arizona state flag, an Arizona Indian nations flag, or the Gadsden flag.
Subsection C: Political Signs
An HOA cannot prohibit the display of political signs on a member’s property, but may regulate them. Permissible regulations include: • Time: Prohibiting display earlier than 71 days before an election and later than 3 days after an election. • Size & Number: Regulations must be no more restrictive than applicable city/county ordinances. If no such ordinance exists, the HOA cannot limit the number of signs, but can cap the maximum aggregate dimensions at nine square feet.
• Definition of “Political Sign”: The statute defines a political sign as “a sign that attempts to influence the outcome of an election.”
VI. Administrative Law Judge’s Decision and Order
The ALJ concluded that the petitioner failed to meet the required burden of proof, which is to prove a violation by a preponderance of the evidence.
1. Rule Consistency: The ALJ concluded that the “Petitioner has not established that the Flag Display Rule was inconsistent with the CC&Rs.”
2. Rule Adoption: The ALJ found that the “Petitioner has not established that the Association improperly adopted the Flag Display Rule under its CC&Rs.”
3. Failure to Allege Violation: The judge noted that the “Petitioner has not alleged that Carter Ranch violated A.R.S. § 33-1808.” This indicates a failure in the petition’s framing to connect the HOA’s actions to a specific statutory prohibition.
4. Final Determination: Based on these conclusions, the judge determined that “Mr. Van Dan Elzen’s petition should be dismissed and the Respondent be deemed to be the prevailing party in this matter.”
• Dismissal: “IT IS ORDERED that Petitioner Thomas J. Van Dan Elzen’s petition is dismissed.”
• Binding Nature: The order is binding on the parties as it resulted from a rehearing.
• Appeal Rights: Any appeal must be filed with the superior court within 35 days from the date the order was served.
