Camelback Country Club Estates I & II Homeowners Association
Counsel
Diana J. Elston, J. Gary Linder
Alleged Violations
CC&Rs Section 12
Outcome Summary
The Administrative Law Judge denied the petition related to landscaping (18F-H1818030-REL), but deemed Petitioner the prevailing party and ordered the refund of the $500 filing fee regarding the petition concerning the additional mailbox (18F-H1818031-REL) because the HOA improperly based the fine on CC&R Section 12.
Why this result: Petitioner failed to prove the olive tree was alive, and a dead tree could be reasonably considered a violation of CC&R Section 28 requiring neatly trimmed/properly cultivated plantings (Case 18F-H1818030-REL).
Key Issues & Findings
Improper fine regarding additional freestanding mailbox
Petitioner challenged fines for an additional mailbox lacking architectural approval. The ALJ found that CC&R Section 12 (related to 'building') could not be applied to a mailbox, rendering the fine imposed under that section a violation by the Respondent. Petitioner was deemed the prevailing party in this docket number (18F-H1818031-REL).
Orders: Respondent ordered to pay Petitioner $500.00 filing fee refund within thirty days.
Briefing Document: Holyoak v. Camelback Country Club Estates HOA
Executive Summary
This briefing document synthesizes the findings and conclusions from an Administrative Law Judge Decision concerning two consolidated petitions filed by homeowner Jon Paul Holyoak against the Camelback Country Club Estates I & II Homeowners Association (HOA). The disputes centered on HOA-issued violations for landscaping maintenance and the presence of a freestanding mailbox.
The final judgment produced a split decision. The Petitioner, Mr. Holyoak, failed to prove the HOA acted improperly in the landscaping case and his petition was denied. However, he was deemed the prevailing party in the mailbox case, with the judge concluding the HOA had violated its own community documents (CC&Rs) by imposing a fine based on an inapplicable section. As the prevailing party in one of the two matters, Mr. Holyoak was awarded his $500 filing fee, to be paid by the HOA. The initial decision document required two subsequent nunc pro tunc orders to correct typographical errors.
Key Takeaways:
• Landscaping Petition (Denied): Mr. Holyoak was cited for failing to remove a “dead” olive tree. He argued the tree was merely “in distress.” The judge ruled that a reasonable person would consider the tree dead and that Mr. Holyoak failed to provide sufficient evidence to the contrary. A dead tree was found to be a potential violation of CC&R Section 28, which requires plantings to be “neatly trimmed” and “properly cultivated.”
• Mailbox Petition (Upheld): Mr. Holyoak was cited for an “additional mailbox” that was present when he purchased the property in 2012. The judge found the HOA’s enforcement problematic for two primary reasons:
1. The HOA cited three different CC&R sections across multiple notices.
2. The fine was ultimately based on Section 12, which pertains to “buildings” and was deemed inapplicable to a mailbox.
• Final Order: The HOA was ordered to pay the Petitioner’s $500 filing fee. The decision is binding on the parties.
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Case Overview
The matter involves two petitions filed on February 2, 2018, by Petitioner Jon Paul Holyoak with the Arizona Department of Real Estate against the Respondent, Camelback Country Club Estates I & II Homeowners Association. The petitions alleged that the HOA had improperly cited Mr. Holyoak for violations of the community’s Conditions, Covenants, and Restrictions (CC&Rs). The two cases were consolidated for a single hearing.
This petition alleged that the HOA improperly cited Mr. Holyoak for violating Section 28 of the CC&Rs, which governs landscape maintenance.
HOA Actions and Timeline
The HOA, through its inspection team Associa Arizona, issued a series of notices regarding the landscaping on Mr. Holyoak’s property.
Notice Type
Description
Oct 17, 2017
Courtesy Notice
“Please remove the dead foliage on your lot.”
Dec 13, 2017
Courtesy Notice
“Please remove the dead olive tree in the front yard.”
Dec 13, 2017
Courtesy Notice
“There are several other trees that need to be removed as they have dead branches including the cassia…”
Jan 25, 2018
Notice of Violation
“2nd notice…There are several other trees that need to be removed as they have dead branches…” (Included photo of backyard).
Arguments Presented
• Petitioner’s Position (Holyoak):
◦ The olive tree in the front yard was not “dead” but rather “in distress,” and he was actively trying to nurse it back to health. He eventually had the tree removed on April 25, 2018, after months of effort.
◦ Regarding the backyard photo attached to the fine notice, he argued that the olive tree visible was healthy and that no dead trees were depicted.
◦ He requested that the fine be abated.
• Respondent’s Position (HOA):
◦ Board member Terry Rogers testified that the front yard olive tree had no leaves, appeared dead from the roadway, and was therefore not “properly trimmed” as required.
◦ He stated the backyard notice referred to a eucalyptus tree with several dead branches visible from the sidewalk bordering the property.
Administrative Law Judge’s Findings and Conclusion
The judge ruled in favor of the HOA in this matter.
• Burden of Proof: The Petitioner failed to present sufficient evidence, beyond “his self-serving statements,” that the olive tree was alive.
• Reasonable Interpretation: The judge concluded that “Any reasonable person viewing the olive tree, as depicted in the photographs presented, would understand the tree to be dead.”
• Violation of CC&Rs: A dead tree could reasonably be considered as not being “neatly trimmed” or “properly cultivated” in accordance with Section 28.
• Verdict: The Petitioner’s petition was denied. The judge found that the HOA had not improperly fined him for the landscaping violation.
This petition alleged that the HOA improperly cited Mr. Holyoak for having an “additional mailbox” in violation of the CC&Rs.
HOA Actions and Timeline
The HOA’s notices for the mailbox cited three different sections of the CC&Rs over time.
Notice Type
Description
CC&R Section Cited
Oct 17, 2017
Courtesy Notice
“Please remove the additional mailbox on your lot.”
Section 27
Dec 14, 2017
Courtesy Notice
“…there is an additional mailbox on your lot. In research of our files, there is no architectural application on file for the modification.”
Section 12
Jan 25, 2018
Notice of Violation
“2nd notice…Please remove the mailbox or provide the approved architectural application.” (Mailbox was painted bright pink and yellow at this time).
Section 12
Jan 25, 2018¹
Notice of Violation
“3rd notice…Please remove the mailbox or provide the approved architectural application.”
Section 8
¹The decision document states this notice was sent on January 25, 2018, but references a violation noted on March 15, 2018. The judge’s conclusions later clarify a notice referencing Section 8 was issued April 11, 2018, and was not properly before the tribunal.
Arguments Presented
• Petitioner’s Position (Holyoak):
◦ The freestanding mailbox was already in place when he purchased the home in 2012.
◦ At the time of purchase, he received a statement that there were no known covenant violations on the property.
◦ He argued the mailbox is required by the United States Postal Service (USPS), which no longer provides walking delivery and requires mailboxes to be reachable from a vehicle. The home’s other mailbox, built into a monument, is approximately 15 feet from the curb.
◦ A USPS mail carrier had confirmed this delivery requirement.
• Respondent’s Position (HOA):
◦ Board member Terry Rogers testified that the USPS mail carrier told him he would prefer to deliver to the permanent monument mailbox because the freestanding one was not secure.
◦ The mailbox had become an “eyesore,” as it was faded, peeling, and “listing to one side.”
◦ Of the 61 homes in the community, only three have freestanding mailboxes, and the Petitioner is the only one with two mailboxes.
Administrative Law Judge’s Findings and Conclusion
The judge ruled in favor of the Petitioner in this matter.
• Inconsistent Enforcement: The judge found it “problematic” that the HOA relied on three different sections of the CC&Rs in its notices.
• Pre-existing Structure: The Petitioner established that the mailbox was present at the time of his 2012 home purchase and that he was told of no existing violations. Therefore, the HOA’s argument regarding the lack of an architectural approval was “without merit.”
• Inapplicable CC&R Section: The fine was imposed based on Section 12 of the CC&Rs. The judge determined the plain language of this section relates to a “building” and “cannot be read to apply to Petitioner’s mailbox.”
• Violation by HOA: By imposing a fine based on an inapplicable section, the HOA was in violation of the CC&Rs.
• Verdict: The Petitioner was deemed the prevailing party. The judge noted that the HOA could potentially impose fines for failure to maintain the mailbox or for painting it without approval, but those specific violations were not before the court.
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Final Order and Subsequent Corrections
• Order of May 25, 2018:
1. Petitioner’s petition in Case Number 18F-H1818030-REL (Landscaping) is denied.
2. Petitioner is deemed the prevailing party in Case Number 18F-H1818031-REL (Mailbox).
3. Respondent (HOA) is ordered to pay Petitioner his $500.00 filing fee within thirty days.
• Order Nunc Pro Tunc of May 30, 2018:
◦ This order corrected a typographical error in the original decision. The original text mistakenly stated the petition for the mailbox case (31-REL) was denied.
◦ Correction: The denial was correctly applied to the landscaping case: “it is ORDERED that Petitioner’s petition in Case Number 18F-H1818031-REL 18F-H1818030-REL is denied.”
• Order Nunc Pro Tunc of May 31, 2018:
◦ This order corrected a typographical error in the May 30 order, which had misstated the date of the original decision.
◦ Correction: “On April 26 May 25, 2018, the Administrative Law Judge issued the Administrative Law Judge Decision…”
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Key CC&R Sections Cited
• Section 8 (Architectural Control): Requires written approval from the Committee before any “building or other structure” is erected, altered, or repaired. This includes exterior finish, color, and architectural style.
• Section 12 (Buildings): States that “No building may be erected or maintained upon any Lot except one single family dwelling with private appurtenant garage and customary outbuildings” without prior written approval.
• Section 27 (Maintenance): Prohibits any building or structure from falling into disrepair and requires owners to keep them in good condition and adequately painted.
• Section 28 (Landscaping): Requires the owner of each lot to “at all times keep shrubs, trees, grass and plantings of every kind, on his lot mostly trimmed, properly cultivated, and free of trash, weeds and other unsightly material.”
Camelback Country Club Estates I & II Homeowners Association
Counsel
Diana J. Elston, J. Gary Linder
Alleged Violations
CC&Rs Section 12
Outcome Summary
The Administrative Law Judge denied the petition related to landscaping (18F-H1818030-REL), but deemed Petitioner the prevailing party and ordered the refund of the $500 filing fee regarding the petition concerning the additional mailbox (18F-H1818031-REL) because the HOA improperly based the fine on CC&R Section 12.
Why this result: Petitioner failed to prove the olive tree was alive, and a dead tree could be reasonably considered a violation of CC&R Section 28 requiring neatly trimmed/properly cultivated plantings (Case 18F-H1818030-REL).
Key Issues & Findings
Improper fine regarding additional freestanding mailbox
Petitioner challenged fines for an additional mailbox lacking architectural approval. The ALJ found that CC&R Section 12 (related to 'building') could not be applied to a mailbox, rendering the fine imposed under that section a violation by the Respondent. Petitioner was deemed the prevailing party in this docket number (18F-H1818031-REL).
Orders: Respondent ordered to pay Petitioner $500.00 filing fee refund within thirty days.
Briefing Document: Holyoak v. Camelback Country Club Estates HOA
Executive Summary
This briefing document synthesizes the findings and conclusions from an Administrative Law Judge Decision concerning two consolidated petitions filed by homeowner Jon Paul Holyoak against the Camelback Country Club Estates I & II Homeowners Association (HOA). The disputes centered on HOA-issued violations for landscaping maintenance and the presence of a freestanding mailbox.
The final judgment produced a split decision. The Petitioner, Mr. Holyoak, failed to prove the HOA acted improperly in the landscaping case and his petition was denied. However, he was deemed the prevailing party in the mailbox case, with the judge concluding the HOA had violated its own community documents (CC&Rs) by imposing a fine based on an inapplicable section. As the prevailing party in one of the two matters, Mr. Holyoak was awarded his $500 filing fee, to be paid by the HOA. The initial decision document required two subsequent nunc pro tunc orders to correct typographical errors.
Key Takeaways:
• Landscaping Petition (Denied): Mr. Holyoak was cited for failing to remove a “dead” olive tree. He argued the tree was merely “in distress.” The judge ruled that a reasonable person would consider the tree dead and that Mr. Holyoak failed to provide sufficient evidence to the contrary. A dead tree was found to be a potential violation of CC&R Section 28, which requires plantings to be “neatly trimmed” and “properly cultivated.”
• Mailbox Petition (Upheld): Mr. Holyoak was cited for an “additional mailbox” that was present when he purchased the property in 2012. The judge found the HOA’s enforcement problematic for two primary reasons:
1. The HOA cited three different CC&R sections across multiple notices.
2. The fine was ultimately based on Section 12, which pertains to “buildings” and was deemed inapplicable to a mailbox.
• Final Order: The HOA was ordered to pay the Petitioner’s $500 filing fee. The decision is binding on the parties.
——————————————————————————–
Case Overview
The matter involves two petitions filed on February 2, 2018, by Petitioner Jon Paul Holyoak with the Arizona Department of Real Estate against the Respondent, Camelback Country Club Estates I & II Homeowners Association. The petitions alleged that the HOA had improperly cited Mr. Holyoak for violations of the community’s Conditions, Covenants, and Restrictions (CC&Rs). The two cases were consolidated for a single hearing.
This petition alleged that the HOA improperly cited Mr. Holyoak for violating Section 28 of the CC&Rs, which governs landscape maintenance.
HOA Actions and Timeline
The HOA, through its inspection team Associa Arizona, issued a series of notices regarding the landscaping on Mr. Holyoak’s property.
Notice Type
Description
Oct 17, 2017
Courtesy Notice
“Please remove the dead foliage on your lot.”
Dec 13, 2017
Courtesy Notice
“Please remove the dead olive tree in the front yard.”
Dec 13, 2017
Courtesy Notice
“There are several other trees that need to be removed as they have dead branches including the cassia…”
Jan 25, 2018
Notice of Violation
“2nd notice…There are several other trees that need to be removed as they have dead branches…” (Included photo of backyard).
Arguments Presented
• Petitioner’s Position (Holyoak):
◦ The olive tree in the front yard was not “dead” but rather “in distress,” and he was actively trying to nurse it back to health. He eventually had the tree removed on April 25, 2018, after months of effort.
◦ Regarding the backyard photo attached to the fine notice, he argued that the olive tree visible was healthy and that no dead trees were depicted.
◦ He requested that the fine be abated.
• Respondent’s Position (HOA):
◦ Board member Terry Rogers testified that the front yard olive tree had no leaves, appeared dead from the roadway, and was therefore not “properly trimmed” as required.
◦ He stated the backyard notice referred to a eucalyptus tree with several dead branches visible from the sidewalk bordering the property.
Administrative Law Judge’s Findings and Conclusion
The judge ruled in favor of the HOA in this matter.
• Burden of Proof: The Petitioner failed to present sufficient evidence, beyond “his self-serving statements,” that the olive tree was alive.
• Reasonable Interpretation: The judge concluded that “Any reasonable person viewing the olive tree, as depicted in the photographs presented, would understand the tree to be dead.”
• Violation of CC&Rs: A dead tree could reasonably be considered as not being “neatly trimmed” or “properly cultivated” in accordance with Section 28.
• Verdict: The Petitioner’s petition was denied. The judge found that the HOA had not improperly fined him for the landscaping violation.
This petition alleged that the HOA improperly cited Mr. Holyoak for having an “additional mailbox” in violation of the CC&Rs.
HOA Actions and Timeline
The HOA’s notices for the mailbox cited three different sections of the CC&Rs over time.
Notice Type
Description
CC&R Section Cited
Oct 17, 2017
Courtesy Notice
“Please remove the additional mailbox on your lot.”
Section 27
Dec 14, 2017
Courtesy Notice
“…there is an additional mailbox on your lot. In research of our files, there is no architectural application on file for the modification.”
Section 12
Jan 25, 2018
Notice of Violation
“2nd notice…Please remove the mailbox or provide the approved architectural application.” (Mailbox was painted bright pink and yellow at this time).
Section 12
Jan 25, 2018¹
Notice of Violation
“3rd notice…Please remove the mailbox or provide the approved architectural application.”
Section 8
¹The decision document states this notice was sent on January 25, 2018, but references a violation noted on March 15, 2018. The judge’s conclusions later clarify a notice referencing Section 8 was issued April 11, 2018, and was not properly before the tribunal.
Arguments Presented
• Petitioner’s Position (Holyoak):
◦ The freestanding mailbox was already in place when he purchased the home in 2012.
◦ At the time of purchase, he received a statement that there were no known covenant violations on the property.
◦ He argued the mailbox is required by the United States Postal Service (USPS), which no longer provides walking delivery and requires mailboxes to be reachable from a vehicle. The home’s other mailbox, built into a monument, is approximately 15 feet from the curb.
◦ A USPS mail carrier had confirmed this delivery requirement.
• Respondent’s Position (HOA):
◦ Board member Terry Rogers testified that the USPS mail carrier told him he would prefer to deliver to the permanent monument mailbox because the freestanding one was not secure.
◦ The mailbox had become an “eyesore,” as it was faded, peeling, and “listing to one side.”
◦ Of the 61 homes in the community, only three have freestanding mailboxes, and the Petitioner is the only one with two mailboxes.
Administrative Law Judge’s Findings and Conclusion
The judge ruled in favor of the Petitioner in this matter.
• Inconsistent Enforcement: The judge found it “problematic” that the HOA relied on three different sections of the CC&Rs in its notices.
• Pre-existing Structure: The Petitioner established that the mailbox was present at the time of his 2012 home purchase and that he was told of no existing violations. Therefore, the HOA’s argument regarding the lack of an architectural approval was “without merit.”
• Inapplicable CC&R Section: The fine was imposed based on Section 12 of the CC&Rs. The judge determined the plain language of this section relates to a “building” and “cannot be read to apply to Petitioner’s mailbox.”
• Violation by HOA: By imposing a fine based on an inapplicable section, the HOA was in violation of the CC&Rs.
• Verdict: The Petitioner was deemed the prevailing party. The judge noted that the HOA could potentially impose fines for failure to maintain the mailbox or for painting it without approval, but those specific violations were not before the court.
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Final Order and Subsequent Corrections
• Order of May 25, 2018:
1. Petitioner’s petition in Case Number 18F-H1818030-REL (Landscaping) is denied.
2. Petitioner is deemed the prevailing party in Case Number 18F-H1818031-REL (Mailbox).
3. Respondent (HOA) is ordered to pay Petitioner his $500.00 filing fee within thirty days.
• Order Nunc Pro Tunc of May 30, 2018:
◦ This order corrected a typographical error in the original decision. The original text mistakenly stated the petition for the mailbox case (31-REL) was denied.
◦ Correction: The denial was correctly applied to the landscaping case: “it is ORDERED that Petitioner’s petition in Case Number 18F-H1818031-REL 18F-H1818030-REL is denied.”
• Order Nunc Pro Tunc of May 31, 2018:
◦ This order corrected a typographical error in the May 30 order, which had misstated the date of the original decision.
◦ Correction: “On April 26 May 25, 2018, the Administrative Law Judge issued the Administrative Law Judge Decision…”
——————————————————————————–
Key CC&R Sections Cited
• Section 8 (Architectural Control): Requires written approval from the Committee before any “building or other structure” is erected, altered, or repaired. This includes exterior finish, color, and architectural style.
• Section 12 (Buildings): States that “No building may be erected or maintained upon any Lot except one single family dwelling with private appurtenant garage and customary outbuildings” without prior written approval.
• Section 27 (Maintenance): Prohibits any building or structure from falling into disrepair and requires owners to keep them in good condition and adequately painted.
• Section 28 (Landscaping): Requires the owner of each lot to “at all times keep shrubs, trees, grass and plantings of every kind, on his lot mostly trimmed, properly cultivated, and free of trash, weeds and other unsightly material.”
Study Guide – 18F-H1818030-REL
Study Guide: Holyoak v. Camelback Country Club Estates I & II HOA
This guide provides a comprehensive review of the administrative hearing case between petitioner Jon Paul Holyoak and the respondent, Camelback Country Club Estates I & II Homeowners Association. It covers the core disputes, arguments, legal interpretations, and the final decision rendered by the Administrative Law Judge.
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 sentences based on the information provided in the case documents.
1. Who were the primary parties in this administrative case, and what were their roles?
2. What were the two distinct case numbers, and what violation did each one address?
3. According to Section 28 of the CC&Rs, what is the responsibility of a lot owner regarding landscaping?
4. What was the petitioner’s primary defense regarding the citation for a “dead” olive tree in his front yard?
5. What was the respondent’s argument for why the olive tree was a violation of the CC&Rs?
6. What key fact did the petitioner establish regarding the freestanding mailbox that was central to the judge’s decision in that matter?
7. Why did the Administrative Law Judge find the respondent’s enforcement actions regarding the mailbox to be “problematic”?
8. On what grounds did the Administrative Law Judge rule that the respondent violated the CC&Rs by fining the petitioner for the mailbox under Section 12?
9. What was the final outcome and financial penalty ordered in the consolidated cases?
10. What is an “Order Nunc Pro Tunc,” and why were two such orders issued after the initial decision?
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Answer Key
1. The primary parties were Jon Paul Holyoak, the homeowner, who acted as the Petitioner. The Respondent was the Camelback Country Club Estates I & II Homeowners Association, which was represented by Gary Linder and Diana Elston.
2. The first case, No. 18F-H1818030-REL, addressed alleged landscaping violations under Section 28 of the CC&Rs concerning dead trees and foliage. The second case, No. 18F-H1818031-REL, addressed an alleged violation for an additional freestanding mailbox, primarily under Section 12 of the CC&Rs.
3. Section 28 of the CC&Rs requires that the owner of each lot shall at all times keep shrubs, trees, grass, and plantings neatly trimmed, properly cultivated, and free of trash, weeds, and other unsightly material.
4. The petitioner testified that the olive tree was not “dead” but was “in distress,” and that he and his landscaper were actively trying to nurse it back to health. He argued he should not be forced to remove a tree with dead branches while attempting to save it.
5. The respondent’s board member, Terry Rogers, testified that the olive tree had no leaves and appeared dead from the roadway. He contended that a dead tree could not be considered “properly trimmed” as required by the CC&Rs.
6. The petitioner established by a preponderance of the evidence that the freestanding mailbox was already in place when he purchased the property in 2012. Furthermore, at the time of purchase, he was notified that there were no known covenant violations on the property.
7. The Judge found the respondent’s actions problematic because, over the course of four notices sent to the petitioner about the mailbox, the respondent relied on three different sections of the CC&Rs (Sections 27, 12, and 8). This inconsistency weakened the respondent’s position.
8. The Judge ruled that the plain language of Section 12 of the CC&Rs relates to a “building,” such as a single-family dwelling or garage. The Judge concluded that a mailbox cannot be considered a “building” under this section, making the fine imposed under this rule a violation of the CC&Rs by the respondent.
9. The petitioner’s petition regarding landscaping (18F-H1818030-REL) was denied. However, the petitioner was deemed the prevailing party in the mailbox case (18F-H1818031-REL), and the respondent was ordered to pay the petitioner’s $500.00 filing fee.
10. “Nunc Pro Tunc” is a legal term for an order that corrects a clerical error in a prior court decision, with the correction being retroactive. The first order corrected the case number in the final ruling, and the second order corrected a date referenced in the first corrective order.
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Essay Questions
Instructions: Consider the following questions. Formulate a detailed response that synthesizes facts and arguments from the case documents to support your position.
1. Explain the concept of “preponderance of the evidence” as defined in the decision and analyze how the petitioner met this burden of proof in the mailbox case but failed to meet it in the landscaping case.
2. Discuss the legal significance of the HOA’s inconsistent application of its CC&Rs in the mailbox dispute. Why did citing three different sections (27, 12, and 8) undermine the HOA’s case?
3. Analyze the Administrative Law Judge’s interpretation of Section 12 of the CC&Rs. How does the “plain language” of the rule factor into the decision that a mailbox is not a “building”?
4. Examine the arguments presented by both parties regarding the freestanding mailbox, including the conflicting accounts of conversations with the USPS mail carrier. Evaluate the strengths and weaknesses of each party’s position.
5. The Judge noted that while the fine under Section 12 was improper, the HOA could potentially impose fines for failure to maintain the mailbox or for painting it without approval. Based on the facts presented, construct a hypothetical argument the HOA could have made that might have been successful.
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Glossary of Key Terms
Definition
To reduce or remove. In the context of the hearing, the Petitioner asked that the fines be abated, meaning he requested they be cancelled or removed.
Administrative Law Judge (ALJ)
An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions, similar to a judge in a court of law. In this case, the ALJ was Tammy L. Eigenheer.
Conditions, Covenants, and Restrictions (CC&Rs)
The governing legal documents that set forth the rules and regulations for a planned community or subdivision. The petitioner and respondent both based their arguments on interpretations of these documents.
Conclusions of Law
The section of a legal decision where the judge applies legal principles and rules (like the CC&Rs and state statutes) to the facts of the case to reach a final judgment.
Findings of Fact
The section of a legal decision that establishes the factual record of the case based on the evidence and testimony presented during the hearing.
Jurisdiction
The official power to make legal decisions and judgments. The Arizona Department of Real Estate was determined to have jurisdiction to hear disputes between a property owner and a homeowners association.
Nunc Pro Tunc
A Latin phrase meaning “now for then.” It refers to a legal order that corrects a clerical error in a previous order, making the correction retroactive to the original date of the decision.
Petitioner
The party who initiates a lawsuit or files a petition seeking a legal remedy. In this case, Jon Paul Holyoak was the Petitioner.
Preponderance of the Evidence
The standard of proof in most civil cases. It means the greater weight of the evidence shows that a fact is more likely than not to be true. The Petitioner bore this burden of proof.
Prevailing Party
The party in a lawsuit who is found to have won the legal dispute. In case 18F-H1818031-REL, the Petitioner was deemed the prevailing party, which entitled him to have his filing fee reimbursed.
Respondent
The party against whom a petition is filed; the defending party. In this case, the Camelback Country Club Estates I & II Homeowners Association was the Respondent.
Blog Post – 18F-H1818030-REL
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18F-H1818030-REL
3 sources
The sources document an Administrative Law Judge Decision concerning a dispute between Jon Paul Holyoak (Petitioner) and the Camelback Country Club Estates I & II Homeowners Association (Respondent), along with subsequent orders correcting clerical errors. The initial decision addresses two consolidated petitions: one regarding landscaping violations (dead trees) under CC&R Section 28, and a second concerning a disputed mailbox under various CC&R sections, particularly Section 12. While the Petitioner failed to prove the association improperly fined him for the dead tree, the judge determined the association was in violation of the CC&Rs for improperly citing Section 12 for the mailbox issue, leading the Petitioner to be deemed the prevailing party in the mailbox case and awarded his $500 filing fee. The subsequent documents, titled Order Nunc Pro Tunc, are procedural corrections to typographical errors found in the original decision’s text and date.
Based on 3 sources
Case Participants
Petitioner Side
John Paul Holyoak(petitioner) Also appears as 'Jon Paul Holyoak'
Respondent Side
Terry Rogers(board member) Camelback Country Club Estates I & II HOA Testified at hearing
Gary Linder(attorney) Jones, Skelton & Hochuli, P.L.C. Also listed as 'J. Gary Linder'
Diana J. Elston(attorney) Jones, Skelton & Hochuli, P.L.C.
Neutral Parties
Tammy L. Eigenheer(ALJ)
Judy Lowe(commissioner) Arizona Department of Real Estate (ADRE)
Felicia Del Sol(clerk) Transmitting agent
LDettorre(ADRE staff) Arizona Department of Real Estate (ADRE)
AHansen(ADRE staff) Arizona Department of Real Estate (ADRE)
djones(ADRE staff) Arizona Department of Real Estate (ADRE)
DGardner(ADRE staff) Arizona Department of Real Estate (ADRE)
ncano(ADRE staff) Arizona Department of Real Estate (ADRE)
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
18F-H1817005-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2018-05-10
Administrative Law Judge
Tammy L. Eigenheer
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Gary W. Moselle
Counsel
—
Respondent
Desert Mountain Master Association
Counsel
Curtis Ekmark
Alleged Violations
A.R.S. § 33-1804(A)
Outcome Summary
The ALJ denied the Petitioner's petition, concluding that the DMMA Communications committee meeting was not subject to the open meetings law because the committee did not hold 'regularly scheduled' meetings.
Why this result: Petitioner failed to prove by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1804, as the committee meeting in question did not meet the definition of a 'regularly scheduled committee meeting' required to be open to members.
Key Issues & Findings
Whether the Respondent violated the open meeting statute by closing a committee meeting.
Petitioner alleged that the DMMA Communications committee meeting was improperly closed and subject to open meeting laws. The ALJ determined the committee did not hold 'regularly scheduled' meetings (defined as meetings occurring at regular intervals) and was therefore not subject to A.R.S. § 33-1804.
Orders: Petitioner’s petition is denied.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1804
A.R.S. § 32-2199 et seq.
A.A.C. R2-19-119
State ex rel. Thomas v. Contes, 216 Ariz. 525, 527, 169 P.3d 115, 117 (App. 2007)
Marsoner v. Pima County, 166 Ariz. 486, 488, 803 P.2d 897, 899 (1991)
Analytics Highlights
Topics: HOA Open Meetings Law, Committee Meeting, Regularly Scheduled
Additional Citations:
A.R.S. § 33-1804
A.R.S. § 32-2199 et seq.
A.A.C. R2-19-119
State ex rel. Thomas v. Contes, 216 Ariz. 525, 527, 169 P.3d 115, 117 (App. 2007)
Marsoner v. Pima County, 166 Ariz. 486, 488, 803 P.2d 897, 899 (1991)
Briefing on the Moselle v. Desert Mountain Master Association Case
Executive Summary
This document synthesizes two Administrative Law Judge Decisions regarding a dispute between homeowner Gary W. Moselle (Petitioner) and the Desert Mountain Master Association (DMMA or Respondent). The core of the case, No. 18F-H1817005-REL, is the legal interpretation of the phrase “regularly scheduled committee meetings” as it appears in Arizona’s open meeting statute for planned communities, A.R.S. § 33-1804.
The conflict arose when the DMMA Communications Committee held a closed meeting on September 6, 2017, which Mr. Moselle was barred from attending. He contended this violated the statute’s open meeting requirements. The DMMA argued the committee was exempt because its meetings were infrequent and not held at fixed intervals.
In two separate decisions—an initial ruling on December 7, 2017, and a second after a rehearing on May 10, 2018—Administrative Law Judge Tammy L. Eigenheer consistently ruled in favor of the DMMA. The judge concluded that “regularly scheduled” applies to meetings that occur at regular, predictable intervals (e.g., monthly, quarterly). Since the Communications Committee met only four times in two years without a set schedule, it was not subject to the open meeting law. The judge determined that the statute’s general policy favoring openness does not override its more specific provisions. Ultimately, the petitioner’s petition was denied.
Case Background and Timeline
The dispute proceeded through the Arizona Department of Real Estate and the Office of Administrative Hearings, culminating in a definitive ruling after a granted rehearing.
September 1, 2017
Gary W. Moselle files a petition with the Arizona Department of Real Estate, alleging DMMA violated open meeting laws.
September 6, 2017
The DMMA Communications Committee holds a closed meeting, which Mr. Moselle is not permitted to attend.
September 18, 2017
DMMA files an answer denying all allegations.
November 17, 2017
An initial hearing is conducted before Administrative Law Judge (ALJ) Tammy L. Eigenheer.
December 7, 2017
The ALJ issues a decision denying Mr. Moselle’s petition.
January 4, 2018
Mr. Moselle files a request for rehearing, citing “newly discovered material evidence” and arguing the decision was contrary to law.
January 26, 2018
The Department of Real Estate grants the request for a rehearing.
April 20, 2018
A rehearing is conducted before the ALJ.
May 10, 2018
The ALJ issues a final decision after rehearing, again denying Mr. Moselle’s petition.
Core Legal Issue: Interpretation of A.R.S. § 33-1804
The central legal question was whether the DMMA Communications Committee was subject to the open meeting requirements mandated by Arizona Revised Statute § 33-1804. The resolution of the case hinged on the interpretation of specific language within the statute.
Relevant Statutory Provisions
• A.R.S. § 33-1804(A): “Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association…”
• A.R.S. § 33-1804(F): “It is the policy of this state as reflected in this section that all meetings of a planned community… be conducted openly… Toward this end, any person or entity that is charged with the interpretation of these provisions… shall take into account this declaration of policy and shall construe any provision of this section in favor of open meetings.”
Arguments Presented by the Parties
The petitioner and respondent presented starkly different interpretations of the phrase “regularly scheduled.”
Petitioner’s Position (Gary W. Moselle)
• Definition of “Regularly Scheduled”: Mr. Moselle argued that “regularly scheduled” should be interpreted to mean a meeting scheduled in a “normal manner” or “ordinary fashion,” not necessarily one that recurs at fixed intervals.
• Primacy of Openness Policy: He emphasized the policy statement in A.R.S. § 33-1804(F), asserting that the statute’s clear preference for open meetings should guide the interpretation of any ambiguous terms.
• Arguments for Rehearing: In his request for a rehearing, Mr. Moselle cited newly discovered evidence (an email sent by the DMMA after the first hearing) and suggested the ALJ should evaluate whether the DMMA had misled the court regarding the Board’s actions on the committee’s recommendation.
Respondent’s Position (Desert Mountain Master Association)
• Definition of “Regularly Scheduled”: DMMA contended that the phrase “regularly scheduled” plainly refers to meetings that occur at regular, predictable intervals, “such as on the third Thursday of every month, quarterly, or even annually.”
• Evidence of Infrequent Meetings: As evidence, the DMMA testified that its Communications Committee met infrequently and without a fixed pattern, holding only four meetings in 2016 and 2017 (twice in April 2016, once in June 2017, and the contested meeting of September 6, 2017).
• Lack of Board Action: The DMMA further argued that a recommendation from the committee to the Board of Directors was not acted upon, which it presented as evidence that the committee was not “conducting any actual business of the Board.”
Administrative Law Judge’s Analysis and Rulings
Across both decisions, the Administrative Law Judge (ALJ) provided a consistent legal analysis that ultimately favored the respondent’s interpretation of the statute.
Initial Decision (December 7, 2017)
• The ALJ concluded that the DMMA Communications Committee does not hold “regularly scheduled meetings.”
• Based on this finding, the committee was deemed not subject to the open meetings law.
• The decision to hold a closed meeting on September 6, 2017, was therefore ruled not to be a violation of A.R.S. § 33-1804.
• The petitioner’s petition was denied.
Decision After Rehearing (May 10, 2018)
• Statutory Interpretation: The ALJ reaffirmed the conclusion that the “plain language” of A.R.S. § 33-1804(A) applies to meetings that “occur at regular intervals.” While acknowledging that “regularly scheduled” could have multiple meanings, the ALJ settled on this interpretation.
• Policy vs. Specifics: The decision explicitly states that the general policy favoring open meetings in subsection (F) “does not override the specific provisions of A.R.S. § 33-1804(A) that only ‘regularly scheduled’ committee meetings must be open to the members.”
• Petitioner’s Testimony: The ALJ noted that during the rehearing, Mr. Moselle’s own testimony on cross-examination appeared to support the court’s interpretation. When questioned about other DMMA committees, Mr. Moselle stated that five of them “meet at the request of the chair and they’re not regularly scheduled.”
• Final Ruling: The ALJ again concluded that the DMMA Communication Committee did not hold “regularly scheduled” meetings at the time of the incident and was therefore not in violation of the statute. The petition was denied for a final time.
Final Disposition
The petition filed by Gary W. Moselle against the Desert Mountain Master Association was denied. The Administrative Law Judge’s order of May 10, 2018, issued after the rehearing, was declared binding on the parties. As per the final notice, any further appeal would require a party to seek judicial review in superior court within thirty-five days of the order.
Study Guide – 18F-H1817005-REL-RHG
Study Guide: Moselle v. Desert Mountain Master Association
This guide provides a comprehensive review of the administrative case between Gary W. Moselle (Petitioner) and the Desert Mountain Master Association (Respondent) concerning Arizona’s open meetings law for planned communities. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms.
Short-Answer Quiz
Instructions: Answer the following questions in two to three sentences, based on the information provided in the case documents.
1. Who were the primary parties in this case, and what were their respective roles?
2. What specific event on September 6, 2017, prompted the Petitioner to file his complaint?
3. What specific Arizona statute did the Petitioner allege the Respondent had violated?
4. What was the Respondent’s primary argument for why its Communications Committee was not subject to the open meetings law?
5. How did the Petitioner, Gary W. Moselle, interpret the key statutory phrase “regularly scheduled committee meetings”?
6. What evidence did the Respondent present regarding the frequency of the Communications Committee’s meetings in 2016 and 2017?
7. What is the “preponderance of the evidence” standard, and which party had the responsibility to meet it?
8. What was the Administrative Law Judge’s final conclusion regarding the meaning of “regularly scheduled” in the context of the statute?
9. On what grounds did the Petitioner successfully request a rehearing after the initial decision was issued on December 7, 2017?
10. How did the judge weigh the general policy statement in A.R.S. § 33-1804(F) against the specific language in A.R.S. § 33-1804(A)?
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Answer Key
1. The primary parties were Gary W. Moselle, the Petitioner, and the Desert Mountain Master Association (DMMA), the Respondent. Mr. Moselle was a homeowner who filed a petition against the DMMA, which is the homeowners association for the community.
2. The Petitioner filed his complaint after he was not allowed to attend a “closed” meeting of the DMMA Communications Committee that was held on September 6, 2017. He alleged this violated Arizona’s open meeting statute.
3. The Petitioner alleged that the Respondent had violated Arizona Revised Statute (A.R.S.) § 33-1804. This statute governs open meetings for planned communities, such as homeowners associations.
4. The Respondent argued that the Communications Committee did not meet at regular, established intervals and therefore its meetings were not “regularly scheduled” as required by the statute to be open. They also asserted that the committee’s recommendation was not acted upon by the Board, suggesting it was not conducting official business.
5. The Petitioner argued that “regularly scheduled” should be interpreted to mean a meeting that was scheduled in a normal or ordinary fashion. He asserted this interpretation was supported by the statute’s general policy favoring open meetings.
6. The Respondent provided testimony that the Communications Committee met infrequently and without a set interval, having held only four meetings in 2016 and 2017. These meetings occurred twice in April 2016, once in June 2017, and on September 6, 2017.
7. “Preponderance of the evidence” is the standard of proof requiring evidence to show that a fact is more probable than not. In this proceeding, the Petitioner, Gary W. Moselle, bore the burden of proving the Respondent’s violation by a preponderance of the evidence.
8. The Administrative Law Judge concluded that the plain language of the statute meant “regularly scheduled” referred to meetings that occur at regular intervals, such as monthly, quarterly, or annually. The judge rejected the Petitioner’s alternate interpretation.
9. The Petitioner was granted a rehearing by citing newly discovered material evidence (an email sent after the first hearing) and arguing the need to evaluate whether the Respondent had misled the judge. He also contended that the initial decision was contrary to law.
10. The judge acknowledged the state’s policy favoring open meetings as stated in subsection (F). However, the judge ruled that this general policy statement did not override the specific provision in subsection (A) that only “regularly scheduled” committee meetings are required to be open.
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Essay Questions
Instructions: The following questions are designed for longer, more analytical responses. Formulate an essay-style answer for each, drawing upon the facts, arguments, and legal reasoning presented in the case documents.
1. Analyze the conflicting interpretations of the phrase “regularly scheduled” as presented by the Petitioner and the Respondent. Discuss the principles of statutory construction used by the Administrative Law Judge to resolve this dispute and explain why one interpretation was favored over the other.
2. Examine the procedural history of this case, from the initial petition filed with the Arizona Department of Real Estate to the final order issued after the rehearing. What were the key legal steps, decisions, and turning points in the process?
3. Discuss the evidence presented by the Desert Mountain Master Association to support its case. How did testimony regarding meeting frequency and the Board’s actions on committee recommendations contribute to the final outcome?
4. Explain the legal relationship between A.R.S. § 33-1804(A) and A.R.S. § 33-1804(F). Based on the judge’s decision, what is the hierarchy between a statute’s specific provisions and its general policy declarations?
5. During the rehearing, the Petitioner’s own testimony about other committees was noted by the Administrative Law Judge. Explain this apparent contradiction in the Petitioner’s argument and discuss its potential impact on the case.
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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 on behalf of a government agency.
A.R.S. § 33-1804
The specific Arizona Revised Statute at the center of the dispute, which governs open meetings for planned communities and their boards of directors and committees.
Burden of Proof
The obligation of a party in a legal case to provide sufficient evidence to prove their allegations. In this case, the burden was on the Petitioner.
Conclusions of Law
The judge’s application of legal principles to the facts of the case to reach a decision.
Department of Real Estate
The Arizona state agency with jurisdiction to hear disputes between property owners and homeowners associations under A.R.S. § 32-2199 et seq.
Desert Mountain Master Association (DMMA)
The Respondent in the case; a homeowners association located in Scottsdale, Arizona, classified as a Planned Unit Development.
Findings of Fact
The determination of factual events made by a judge from the evidence presented in a trial or hearing.
Gary W. Moselle
The Petitioner in the case; a homeowner within the DMMA who filed the complaint.
Jurisdiction
The official power of a court or agency to hear a case and make legal decisions and judgments.
Open Meetings Law
A law, in this case A.R.S. § 33-1804, that requires meetings of certain entities to be open to all members or the public.
Petition
The formal written request filed with an administrative body or court to initiate a case.
Petitioner
The party who files a petition and initiates a legal action.
Planned Unit Development (PUD)
A type of real estate development and community governed by specific state laws, such as those in A.R.S. Title 33, Chapter 16.
Preponderance of the Evidence
The standard of proof in most civil and administrative cases, defined as evidence that is more convincing and shows a fact is more probable than not.
Rehearing
A second hearing of a case to reconsider the previous decision, typically granted due to new evidence or an argument of legal error.
Regularly Scheduled
The key statutory phrase in dispute. The judge interpreted it to mean meetings that occur at regular, established intervals (e.g., monthly, quarterly).
Respondent
The party against whom a petition is filed; the party defending against the complaint.
Statutory Construction
The process by which judges interpret and apply legislation. The primary goal is to ascertain the legislature’s intent, starting with the plain text of the statute.
Blog Post – 18F-H1817005-REL-RHG
Your HOA Committee Might Be Meeting in Secret—And It Could Be Perfectly Legal
As a homeowner in a planned community, you likely know you have the right to attend your HOA’s board of directors meetings. But what about the committee meetings? The finance, architectural, or communications committees often lay the critical groundwork for decisions that ultimately affect your property and fees. Do you have a right to observe their deliberations?
A recent legal case in Scottsdale, Arizona, hinged on the interpretation of a single, seemingly straightforward phrase and exposed a surprising rule about HOA transparency. The case, Moselle v. Desert Mountain Master Association, reveals critical lessons for any homeowner about the letter of the law and how it can sometimes create legal loopholes that allow committee meetings to happen behind closed doors.
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1. The Crucial Loophole: “Regularly Scheduled” Doesn’t Mean What You Think
The entire dispute rested on how to interpret the phrase “regularly scheduled committee meetings” as written in Arizona statute A.R.S. § 33-1804, which governs open meetings for planned communities.
The Homeowner’s Argument The petitioner, homeowner Gary Moselle, argued that when the Communications Committee of the Desert Mountain Master Association (DMMA) scheduled a meeting for September 6, 2017, it should be open to all members. His logic was simple: a meeting that is formally scheduled and placed on the calendar is, by any common-sense definition, a “regularly scheduled” meeting.
The HOA’s Counter-Argument The DMMA countered with a different interpretation. They argued that the phrase “regularly scheduled” implies a recurring, predictable pattern, such as meetings held monthly, quarterly, or on the third Thursday of every month. The association presented evidence that its Communications Committee met infrequently and without a set pattern, having convened only four times in 2016 and 2017. Because the meetings were sporadic, the HOA contended they were not “regularly scheduled” and therefore not subject to the open meeting law.
To bolster its case, the HOA added a second point: the committee’s work wasn’t essential to board business anyway. They noted that a recommendation from the committee was never acted upon by the board, suggesting the committee was not conducting “any actual business of the Board” and thus did not require the same level of transparency.
The Surprising Verdict Administrative Law Judge Tammy L. Eigenheer sided with the HOA. The final decision concluded that “regularly scheduled” refers to meetings that occur at regular intervals. This created a legal distinction: HOA committees that meet on a fixed, recurring schedule must be open, but those that meet on an as-needed basis may not be.
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2. A Law’s “Spirit” Can Be Trumped by Its “Letter”
Adding another layer to the case was the law’s own powerful statement about its intent. The petitioner pointed to a specific section of the statute designed to ensure transparency.
The Policy Statement The Arizona law contains a strong policy statement declaring that all HOA meetings should be conducted openly. It explicitly directs anyone interpreting the law to favor open meetings.
It is the policy of this state as reflected in this section that all meetings of a planned community… be conducted openly… Toward this end, any person or entity that is charged with the interpretation of these provisions… shall take into account this declaration of policy and shall construe any provision of this section in favor of open meetings.
The Legal Reasoning Despite this clear declaration, Judge Eigenheer ruled that a general policy statement does not override the specific and explicit language of the law. The statute does not say all committee meetings must be open; it says “regularly scheduled committee meetings” must be open. The judge concluded that this specific wording created a clear exception, and the broad policy in favor of transparency could not erase it.
The Impact This is a critical takeaway for understanding how laws are interpreted. This outcome reflects a fundamental principle of statutory construction: while the “spirit” or stated policy of a law provides guidance, it cannot override the plain meaning of the specific words—the “letter”—that the legislature chose to write.
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3. A Cautionary Tale: How a Petitioner Undermined His Own Case
The petitioner was granted a rehearing, giving him another chance to argue his case. However, a statement he made during his own testimony dramatically weakened his position.
The Key Testimony During the rehearing on April 20, 2018, the petitioner was asked about other committees within the DMMA. In explaining how they operated, he unintentionally adopted the very definition of “regularly scheduled” that the HOA was using against him. The judge recorded his exact words in the final decision:
…five of the committees listed in the Volunteer Request page “meet at the request of the chair and they’re not regularly scheduled.”
The Consequence The judge seized on this admission in the final ruling. The decision notes that while “regularly scheduled” could have multiple meanings, the petitioner himself used the phrase to differentiate between committees that meet at fixed intervals and those that do not. By describing committees that “meet at the request of the chair” as being “not regularly scheduled,” he validated the very interpretation the court was now adopting.
The Lesson This moment serves as a dramatic lesson in the power and precision of language in legal proceedings. In an attempt to describe the function of other committees, the petitioner inadvertently validated his opponent’s core legal argument.
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Conclusion: A Question of Transparency
The ruling in Moselle v. Desert Mountain Master Association clarifies a significant point in HOA governance. Under this legal interpretation, committees that meet on an ad-hoc basis or “at the call of the chair” may not be subject to open meeting laws. Only those committees that meet on a fixed, recurring schedule are explicitly required to be open to homeowners.
This ruling draws a bright line between standing committees with fixed schedules and ad-hoc committees that meet “at the call of the chair.” Homeowners should now ask: Which of our committees fall into this second category, and are we comfortable with decisions being shaped behind closed doors?
Case Participants
Petitioner Side
Gary W. Moselle(petitioner) Appeared on his own behalf
Respondent Side
Desert Mountain Master Association(respondent) Organizational party (HOA)
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
18F-H1817005-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2018-05-10
Administrative Law Judge
Tammy L. Eigenheer
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Gary W. Moselle
Counsel
—
Respondent
Desert Mountain Master Association
Counsel
Curtis Ekmark
Alleged Violations
A.R.S. § 33-1804
Outcome Summary
The Administrative Law Judge denied the petition, ruling that the DMMA Communication Committee was not subject to the open meetings law (A.R.S. § 33-1804) because it did not hold 'regularly scheduled meetings',,,.
Why this result: The committee met too infrequently and without regular intervals to be deemed 'regularly scheduled' for the purposes of A.R.S. § 33-1804(A),,.
Key Issues & Findings
Whether a Communications Committee meeting must be open to members under the open meetings law.
Petitioner alleged that Respondent violated the open meetings statute by closing the September 6, 2017 meeting of the Communications Committee. The issue was whether this committee constituted a 'regularly scheduled committee meeting' subject to A.R.S. § 33-1804(A),,,,.
Orders: Petitioner's petition was denied. The Administrative Law Judge concluded that the DMMA Communication committee did not hold 'regularly scheduled' meetings, meaning it was not subject to the open meetings law under A.R.S. § 33-1804,,,.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1804
A.R.S. Title 33, Chapter 16
A.R.S. § 32-2199 et seq.
A.A.C. R2-19-119
BLACK'S LAW DICTIONARY 1182 (6th ed. 1990)
State ex rel. Thomas v. Contes, 216 Ariz. 525, 527, 169 P.3d 115, 117 (App. 2007)
Marsoner v. Pima County, 166 Ariz. 486, 488, 803 P.2d 897, 899 (1991)
Analytics Highlights
Topics: HOA, Open Meetings Law, Committee Meetings, Statutory Interpretation, Planned Community
Additional Citations:
A.R.S. § 33-1804
A.R.S. Title 33, Chapter 16, Sections 33-1801 to 33-1818
A.R.S. § 32-2199 et seq.
A.A.C. R2-19-119
State ex rel. Thomas v. Contes, 216 Ariz. 525, 527, 169 P.3d 115, 117 (App. 2007)
Marsoner v. Pima County, 166 Ariz. 486, 488, 803 P.2d 897, 899 (1991)
Briefing on the Moselle v. Desert Mountain Master Association Case
Executive Summary
This document synthesizes two Administrative Law Judge Decisions regarding a dispute between homeowner Gary W. Moselle (Petitioner) and the Desert Mountain Master Association (DMMA or Respondent). The core of the case, No. 18F-H1817005-REL, is the legal interpretation of the phrase “regularly scheduled committee meetings” as it appears in Arizona’s open meeting statute for planned communities, A.R.S. § 33-1804.
The conflict arose when the DMMA Communications Committee held a closed meeting on September 6, 2017, which Mr. Moselle was barred from attending. He contended this violated the statute’s open meeting requirements. The DMMA argued the committee was exempt because its meetings were infrequent and not held at fixed intervals.
In two separate decisions—an initial ruling on December 7, 2017, and a second after a rehearing on May 10, 2018—Administrative Law Judge Tammy L. Eigenheer consistently ruled in favor of the DMMA. The judge concluded that “regularly scheduled” applies to meetings that occur at regular, predictable intervals (e.g., monthly, quarterly). Since the Communications Committee met only four times in two years without a set schedule, it was not subject to the open meeting law. The judge determined that the statute’s general policy favoring openness does not override its more specific provisions. Ultimately, the petitioner’s petition was denied.
Case Background and Timeline
The dispute proceeded through the Arizona Department of Real Estate and the Office of Administrative Hearings, culminating in a definitive ruling after a granted rehearing.
September 1, 2017
Gary W. Moselle files a petition with the Arizona Department of Real Estate, alleging DMMA violated open meeting laws.
September 6, 2017
The DMMA Communications Committee holds a closed meeting, which Mr. Moselle is not permitted to attend.
September 18, 2017
DMMA files an answer denying all allegations.
November 17, 2017
An initial hearing is conducted before Administrative Law Judge (ALJ) Tammy L. Eigenheer.
December 7, 2017
The ALJ issues a decision denying Mr. Moselle’s petition.
January 4, 2018
Mr. Moselle files a request for rehearing, citing “newly discovered material evidence” and arguing the decision was contrary to law.
January 26, 2018
The Department of Real Estate grants the request for a rehearing.
April 20, 2018
A rehearing is conducted before the ALJ.
May 10, 2018
The ALJ issues a final decision after rehearing, again denying Mr. Moselle’s petition.
Core Legal Issue: Interpretation of A.R.S. § 33-1804
The central legal question was whether the DMMA Communications Committee was subject to the open meeting requirements mandated by Arizona Revised Statute § 33-1804. The resolution of the case hinged on the interpretation of specific language within the statute.
Relevant Statutory Provisions
• A.R.S. § 33-1804(A): “Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association…”
• A.R.S. § 33-1804(F): “It is the policy of this state as reflected in this section that all meetings of a planned community… be conducted openly… Toward this end, any person or entity that is charged with the interpretation of these provisions… shall take into account this declaration of policy and shall construe any provision of this section in favor of open meetings.”
Arguments Presented by the Parties
The petitioner and respondent presented starkly different interpretations of the phrase “regularly scheduled.”
Petitioner’s Position (Gary W. Moselle)
• Definition of “Regularly Scheduled”: Mr. Moselle argued that “regularly scheduled” should be interpreted to mean a meeting scheduled in a “normal manner” or “ordinary fashion,” not necessarily one that recurs at fixed intervals.
• Primacy of Openness Policy: He emphasized the policy statement in A.R.S. § 33-1804(F), asserting that the statute’s clear preference for open meetings should guide the interpretation of any ambiguous terms.
• Arguments for Rehearing: In his request for a rehearing, Mr. Moselle cited newly discovered evidence (an email sent by the DMMA after the first hearing) and suggested the ALJ should evaluate whether the DMMA had misled the court regarding the Board’s actions on the committee’s recommendation.
Respondent’s Position (Desert Mountain Master Association)
• Definition of “Regularly Scheduled”: DMMA contended that the phrase “regularly scheduled” plainly refers to meetings that occur at regular, predictable intervals, “such as on the third Thursday of every month, quarterly, or even annually.”
• Evidence of Infrequent Meetings: As evidence, the DMMA testified that its Communications Committee met infrequently and without a fixed pattern, holding only four meetings in 2016 and 2017 (twice in April 2016, once in June 2017, and the contested meeting of September 6, 2017).
• Lack of Board Action: The DMMA further argued that a recommendation from the committee to the Board of Directors was not acted upon, which it presented as evidence that the committee was not “conducting any actual business of the Board.”
Administrative Law Judge’s Analysis and Rulings
Across both decisions, the Administrative Law Judge (ALJ) provided a consistent legal analysis that ultimately favored the respondent’s interpretation of the statute.
Initial Decision (December 7, 2017)
• The ALJ concluded that the DMMA Communications Committee does not hold “regularly scheduled meetings.”
• Based on this finding, the committee was deemed not subject to the open meetings law.
• The decision to hold a closed meeting on September 6, 2017, was therefore ruled not to be a violation of A.R.S. § 33-1804.
• The petitioner’s petition was denied.
Decision After Rehearing (May 10, 2018)
• Statutory Interpretation: The ALJ reaffirmed the conclusion that the “plain language” of A.R.S. § 33-1804(A) applies to meetings that “occur at regular intervals.” While acknowledging that “regularly scheduled” could have multiple meanings, the ALJ settled on this interpretation.
• Policy vs. Specifics: The decision explicitly states that the general policy favoring open meetings in subsection (F) “does not override the specific provisions of A.R.S. § 33-1804(A) that only ‘regularly scheduled’ committee meetings must be open to the members.”
• Petitioner’s Testimony: The ALJ noted that during the rehearing, Mr. Moselle’s own testimony on cross-examination appeared to support the court’s interpretation. When questioned about other DMMA committees, Mr. Moselle stated that five of them “meet at the request of the chair and they’re not regularly scheduled.”
• Final Ruling: The ALJ again concluded that the DMMA Communication Committee did not hold “regularly scheduled” meetings at the time of the incident and was therefore not in violation of the statute. The petition was denied for a final time.
Final Disposition
The petition filed by Gary W. Moselle against the Desert Mountain Master Association was denied. The Administrative Law Judge’s order of May 10, 2018, issued after the rehearing, was declared binding on the parties. As per the final notice, any further appeal would require a party to seek judicial review in superior court within thirty-five days of the order.
Study Guide – 18F-H1817005-REL-RHG
Study Guide: Moselle v. Desert Mountain Master Association
This guide provides a comprehensive review of the administrative case between Gary W. Moselle (Petitioner) and the Desert Mountain Master Association (Respondent) concerning Arizona’s open meetings law for planned communities. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms.
Short-Answer Quiz
Instructions: Answer the following questions in two to three sentences, based on the information provided in the case documents.
1. Who were the primary parties in this case, and what were their respective roles?
2. What specific event on September 6, 2017, prompted the Petitioner to file his complaint?
3. What specific Arizona statute did the Petitioner allege the Respondent had violated?
4. What was the Respondent’s primary argument for why its Communications Committee was not subject to the open meetings law?
5. How did the Petitioner, Gary W. Moselle, interpret the key statutory phrase “regularly scheduled committee meetings”?
6. What evidence did the Respondent present regarding the frequency of the Communications Committee’s meetings in 2016 and 2017?
7. What is the “preponderance of the evidence” standard, and which party had the responsibility to meet it?
8. What was the Administrative Law Judge’s final conclusion regarding the meaning of “regularly scheduled” in the context of the statute?
9. On what grounds did the Petitioner successfully request a rehearing after the initial decision was issued on December 7, 2017?
10. How did the judge weigh the general policy statement in A.R.S. § 33-1804(F) against the specific language in A.R.S. § 33-1804(A)?
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Answer Key
1. The primary parties were Gary W. Moselle, the Petitioner, and the Desert Mountain Master Association (DMMA), the Respondent. Mr. Moselle was a homeowner who filed a petition against the DMMA, which is the homeowners association for the community.
2. The Petitioner filed his complaint after he was not allowed to attend a “closed” meeting of the DMMA Communications Committee that was held on September 6, 2017. He alleged this violated Arizona’s open meeting statute.
3. The Petitioner alleged that the Respondent had violated Arizona Revised Statute (A.R.S.) § 33-1804. This statute governs open meetings for planned communities, such as homeowners associations.
4. The Respondent argued that the Communications Committee did not meet at regular, established intervals and therefore its meetings were not “regularly scheduled” as required by the statute to be open. They also asserted that the committee’s recommendation was not acted upon by the Board, suggesting it was not conducting official business.
5. The Petitioner argued that “regularly scheduled” should be interpreted to mean a meeting that was scheduled in a normal or ordinary fashion. He asserted this interpretation was supported by the statute’s general policy favoring open meetings.
6. The Respondent provided testimony that the Communications Committee met infrequently and without a set interval, having held only four meetings in 2016 and 2017. These meetings occurred twice in April 2016, once in June 2017, and on September 6, 2017.
7. “Preponderance of the evidence” is the standard of proof requiring evidence to show that a fact is more probable than not. In this proceeding, the Petitioner, Gary W. Moselle, bore the burden of proving the Respondent’s violation by a preponderance of the evidence.
8. The Administrative Law Judge concluded that the plain language of the statute meant “regularly scheduled” referred to meetings that occur at regular intervals, such as monthly, quarterly, or annually. The judge rejected the Petitioner’s alternate interpretation.
9. The Petitioner was granted a rehearing by citing newly discovered material evidence (an email sent after the first hearing) and arguing the need to evaluate whether the Respondent had misled the judge. He also contended that the initial decision was contrary to law.
10. The judge acknowledged the state’s policy favoring open meetings as stated in subsection (F). However, the judge ruled that this general policy statement did not override the specific provision in subsection (A) that only “regularly scheduled” committee meetings are required to be open.
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Essay Questions
Instructions: The following questions are designed for longer, more analytical responses. Formulate an essay-style answer for each, drawing upon the facts, arguments, and legal reasoning presented in the case documents.
1. Analyze the conflicting interpretations of the phrase “regularly scheduled” as presented by the Petitioner and the Respondent. Discuss the principles of statutory construction used by the Administrative Law Judge to resolve this dispute and explain why one interpretation was favored over the other.
2. Examine the procedural history of this case, from the initial petition filed with the Arizona Department of Real Estate to the final order issued after the rehearing. What were the key legal steps, decisions, and turning points in the process?
3. Discuss the evidence presented by the Desert Mountain Master Association to support its case. How did testimony regarding meeting frequency and the Board’s actions on committee recommendations contribute to the final outcome?
4. Explain the legal relationship between A.R.S. § 33-1804(A) and A.R.S. § 33-1804(F). Based on the judge’s decision, what is the hierarchy between a statute’s specific provisions and its general policy declarations?
5. During the rehearing, the Petitioner’s own testimony about other committees was noted by the Administrative Law Judge. Explain this apparent contradiction in the Petitioner’s argument and discuss its potential impact on the case.
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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 on behalf of a government agency.
A.R.S. § 33-1804
The specific Arizona Revised Statute at the center of the dispute, which governs open meetings for planned communities and their boards of directors and committees.
Burden of Proof
The obligation of a party in a legal case to provide sufficient evidence to prove their allegations. In this case, the burden was on the Petitioner.
Conclusions of Law
The judge’s application of legal principles to the facts of the case to reach a decision.
Department of Real Estate
The Arizona state agency with jurisdiction to hear disputes between property owners and homeowners associations under A.R.S. § 32-2199 et seq.
Desert Mountain Master Association (DMMA)
The Respondent in the case; a homeowners association located in Scottsdale, Arizona, classified as a Planned Unit Development.
Findings of Fact
The determination of factual events made by a judge from the evidence presented in a trial or hearing.
Gary W. Moselle
The Petitioner in the case; a homeowner within the DMMA who filed the complaint.
Jurisdiction
The official power of a court or agency to hear a case and make legal decisions and judgments.
Open Meetings Law
A law, in this case A.R.S. § 33-1804, that requires meetings of certain entities to be open to all members or the public.
Petition
The formal written request filed with an administrative body or court to initiate a case.
Petitioner
The party who files a petition and initiates a legal action.
Planned Unit Development (PUD)
A type of real estate development and community governed by specific state laws, such as those in A.R.S. Title 33, Chapter 16.
Preponderance of the Evidence
The standard of proof in most civil and administrative cases, defined as evidence that is more convincing and shows a fact is more probable than not.
Rehearing
A second hearing of a case to reconsider the previous decision, typically granted due to new evidence or an argument of legal error.
Regularly Scheduled
The key statutory phrase in dispute. The judge interpreted it to mean meetings that occur at regular, established intervals (e.g., monthly, quarterly).
Respondent
The party against whom a petition is filed; the party defending against the complaint.
Statutory Construction
The process by which judges interpret and apply legislation. The primary goal is to ascertain the legislature’s intent, starting with the plain text of the statute.
Blog Post – 18F-H1817005-REL-RHG
Your HOA Committee Might Be Meeting in Secret—And It Could Be Perfectly Legal
As a homeowner in a planned community, you likely know you have the right to attend your HOA’s board of directors meetings. But what about the committee meetings? The finance, architectural, or communications committees often lay the critical groundwork for decisions that ultimately affect your property and fees. Do you have a right to observe their deliberations?
A recent legal case in Scottsdale, Arizona, hinged on the interpretation of a single, seemingly straightforward phrase and exposed a surprising rule about HOA transparency. The case, Moselle v. Desert Mountain Master Association, reveals critical lessons for any homeowner about the letter of the law and how it can sometimes create legal loopholes that allow committee meetings to happen behind closed doors.
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1. The Crucial Loophole: “Regularly Scheduled” Doesn’t Mean What You Think
The entire dispute rested on how to interpret the phrase “regularly scheduled committee meetings” as written in Arizona statute A.R.S. § 33-1804, which governs open meetings for planned communities.
The Homeowner’s Argument The petitioner, homeowner Gary Moselle, argued that when the Communications Committee of the Desert Mountain Master Association (DMMA) scheduled a meeting for September 6, 2017, it should be open to all members. His logic was simple: a meeting that is formally scheduled and placed on the calendar is, by any common-sense definition, a “regularly scheduled” meeting.
The HOA’s Counter-Argument The DMMA countered with a different interpretation. They argued that the phrase “regularly scheduled” implies a recurring, predictable pattern, such as meetings held monthly, quarterly, or on the third Thursday of every month. The association presented evidence that its Communications Committee met infrequently and without a set pattern, having convened only four times in 2016 and 2017. Because the meetings were sporadic, the HOA contended they were not “regularly scheduled” and therefore not subject to the open meeting law.
To bolster its case, the HOA added a second point: the committee’s work wasn’t essential to board business anyway. They noted that a recommendation from the committee was never acted upon by the board, suggesting the committee was not conducting “any actual business of the Board” and thus did not require the same level of transparency.
The Surprising Verdict Administrative Law Judge Tammy L. Eigenheer sided with the HOA. The final decision concluded that “regularly scheduled” refers to meetings that occur at regular intervals. This created a legal distinction: HOA committees that meet on a fixed, recurring schedule must be open, but those that meet on an as-needed basis may not be.
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2. A Law’s “Spirit” Can Be Trumped by Its “Letter”
Adding another layer to the case was the law’s own powerful statement about its intent. The petitioner pointed to a specific section of the statute designed to ensure transparency.
The Policy Statement The Arizona law contains a strong policy statement declaring that all HOA meetings should be conducted openly. It explicitly directs anyone interpreting the law to favor open meetings.
It is the policy of this state as reflected in this section that all meetings of a planned community… be conducted openly… Toward this end, any person or entity that is charged with the interpretation of these provisions… shall take into account this declaration of policy and shall construe any provision of this section in favor of open meetings.
The Legal Reasoning Despite this clear declaration, Judge Eigenheer ruled that a general policy statement does not override the specific and explicit language of the law. The statute does not say all committee meetings must be open; it says “regularly scheduled committee meetings” must be open. The judge concluded that this specific wording created a clear exception, and the broad policy in favor of transparency could not erase it.
The Impact This is a critical takeaway for understanding how laws are interpreted. This outcome reflects a fundamental principle of statutory construction: while the “spirit” or stated policy of a law provides guidance, it cannot override the plain meaning of the specific words—the “letter”—that the legislature chose to write.
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3. A Cautionary Tale: How a Petitioner Undermined His Own Case
The petitioner was granted a rehearing, giving him another chance to argue his case. However, a statement he made during his own testimony dramatically weakened his position.
The Key Testimony During the rehearing on April 20, 2018, the petitioner was asked about other committees within the DMMA. In explaining how they operated, he unintentionally adopted the very definition of “regularly scheduled” that the HOA was using against him. The judge recorded his exact words in the final decision:
…five of the committees listed in the Volunteer Request page “meet at the request of the chair and they’re not regularly scheduled.”
The Consequence The judge seized on this admission in the final ruling. The decision notes that while “regularly scheduled” could have multiple meanings, the petitioner himself used the phrase to differentiate between committees that meet at fixed intervals and those that do not. By describing committees that “meet at the request of the chair” as being “not regularly scheduled,” he validated the very interpretation the court was now adopting.
The Lesson This moment serves as a dramatic lesson in the power and precision of language in legal proceedings. In an attempt to describe the function of other committees, the petitioner inadvertently validated his opponent’s core legal argument.
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Conclusion: A Question of Transparency
The ruling in Moselle v. Desert Mountain Master Association clarifies a significant point in HOA governance. Under this legal interpretation, committees that meet on an ad-hoc basis or “at the call of the chair” may not be subject to open meeting laws. Only those committees that meet on a fixed, recurring schedule are explicitly required to be open to homeowners.
This ruling draws a bright line between standing committees with fixed schedules and ad-hoc committees that meet “at the call of the chair.” Homeowners should now ask: Which of our committees fall into this second category, and are we comfortable with decisions being shaped behind closed doors?
Case Participants
Petitioner Side
Gary W. Moselle(petitioner) Appeared on his own behalf
Respondent Side
Desert Mountain Master Association(respondent) Organizational party (HOA)
Petitioner won the statutory claim regarding access to association documents (A.R.S. § 33-1805(A)) and was refunded the $500 filing fee. Petitioner lost the claim regarding the failure to maintain exterior walls (CC&Rs) due to insufficient evidence.
Why this result: Petitioner failed to prove the maintenance issue by a preponderance of the evidence (for case 18F-H1818025-REL).
Key Issues & Findings
Failure to repair and maintain exterior walls
Petitioner alleged the HOA failed to repair damage (crack) to the exterior wall of his unit as required by the CC&Rs. The ALJ found that Petitioner failed to present sufficient evidence (black and white photographs did not clearly show the damage) to establish a violation.
Orders: Petitioner's petition in Case Number 18F-H1818025-REL is denied.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
CC&Rs
5
17
Failure to provide requested association records
Petitioner requested meeting notices and minutes in December 2017. Respondent's former management company failed to respond in a timely fashion. Petitioner established by a preponderance of the evidence that Respondent violated the statute.
Orders: Petitioner deemed the prevailing party in Case Number 18F-H1818027-REL. Respondent ordered to comply with A.R.S. § 33-1805(A) in the future and pay Petitioner the filing fee of $500.00.
Administrative Hearing Brief: Duffett vs. Suntech Patio Homes HOA
Executive Summary
This briefing document analyzes the Administrative Law Judge Decision in two consolidated cases filed by homeowner Rex E. Duffett against the Suntech Patio Homes Homeowners Association (HOA). The ruling presents a split decision, with the petitioner prevailing on one claim while failing to provide sufficient evidence for the other.
The first petition, concerning the HOA’s alleged failure to repair exterior walls, was denied. The petitioner failed to meet the burden of proof, as the submitted photographic evidence was unclear and did not sufficiently establish the existence or severity of the damage requiring immediate repair.
The second petition, concerning the HOA’s failure to provide association records upon request, was upheld. The judge found that the HOA, through its former management company, violated state law (A.R.S. § 33-1805(A)) by not responding to a formal document request within the mandated ten-business-day window.
As a result, Mr. Duffett was deemed the prevailing party in the records-request case. The HOA was ordered to pay his $500 filing fee and to ensure future compliance with the relevant statutes. The case highlights critical issues of evidence quality in homeowner disputes and demonstrates the legal liability an HOA retains for the failures of its management agents, particularly during periods of transition.
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Case Overview
Case Numbers
18F-H1818025-REL and 18F-H1818027-REL (Consolidated)
Petitioner
Rex E. Duffett
Respondent
Suntech Patio Homes Homeowners Association
Hearing Date
April 4, 2018
Decision Date
April 24, 2018
Presiding Judge
Administrative Law Judge Tammy L. Eigenheer
The hearing addressed two separate petitions filed by Rex E. Duffett with the Arizona Department of Real Estate:
1. Petition 1 (18F-H1818025-REL): Alleged the HOA violated community CC&Rs by failing to repair exterior walls of the petitioner’s unit.
2. Petition 2 (18F-H1818027-REL): Alleged the HOA violated A.R.S. § 33-1805(A) by failing to provide requested documents.
Petition 1: Failure to Repair Exterior Walls (Denied)
Petitioner’s Allegations and Evidence
• Core Claim: The petitioner alleged the HOA failed its duty, as defined by a March 1993 amendment to the CC&Rs, to maintain the exterior walls of his unit. The CC&Rs state, “The Suntech Patio Homeowners Association shall be responsible for the painting and maintenance of the following: A) Exterior walls of all units . . . .”
• Initial Request (July 14, 2017): Mr. Duffett faxed the HOA’s management company, The Management Trust, stating, “While inspecting the outside of my property I noticed a crack in the exterior wall. Please inspect, repair and paint the wall as soon as possible to prevent any damage which could result from rain water in the interior of the wall.”
• Follow-Up Request (August 21, 2017): In a certified letter, Mr. Duffett provided more detail, identifying a crack in the entryway wall allowing “rain water to seep into the interior wall,” a “bare concrete” area on the garage, and a previously cracked garage wall that had been repaired by a roofing company but not painted.
• Hearing Testimony: Mr. Duffett testified that a roofing company he hired to find a leak in his garage ceiling determined the source was not the roof but a crack in the exterior wall.
• Submitted Evidence: The petitioner submitted five black-and-white photographs of his home’s exterior across his two communications.
Respondent’s Position and Evidence
• Management Transition: Pride Community Management took over from The Management Trust on February 1, 2018. The new manager, Rebecca Stowers, and owner, Frank Peake, testified to a difficult transition where The Management Trust initially provided only one box of records, later discovering seven or eight more boxes in storage. Mr. Peake stated that Pride had not seen the petitioner’s communications regarding the damage until the hearing.
• Inspection: Ms. Stowers testified that she inspected the petitioner’s home on March 27, 2018. While she noted “a missing area of stucco on the front of the garage that needed to be repaired,” she “denied being able to identify a crack in the stucco anywhere else on the front of the house.”
• Community-Wide Repair Plan: Ms. Stowers stated that the HOA intended to repair the stucco and paint all exterior walls in the community during the 2018 calendar year at a projected cost of $46,000, to be funded potentially through a special assessment due to the HOA being underfunded.
Conclusion of Law and Ruling
• Burden of Proof: The Administrative Law Judge (ALJ) determined that the petitioner bore the burden of proving his claim by a preponderance of the evidence.
• Evidence Failure: The ALJ found the submitted evidence insufficient. The decision states: “The black and white photographs submitted at hearing did not clearly show the crack Petitioner alleged existed on the exterior wall of his unit… The Administrative Law Judge was unable to identify the location or severity of the alleged crack, and therefore, cannot conclude that such a crack exists and/or that it is necessary to be repaired immediately.”
• Final Ruling: The petitioner failed to meet his burden of proof. The petition in Case Number 18F-H1818025-REL was denied.
Petition 2: Failure to Provide Association Records (Upheld)
Petitioner’s Allegations and Evidence
• Core Claim: The petitioner alleged that the HOA violated A.R.S. § 33-1805(A), which requires an association to fulfill a request for records within ten business days.
• The Request (December 22, 2017): Mr. Duffett faxed The Management Trust a request for specific documents, citing a statement made by the HOA in a separate case. He requested copies of:
◦ Meeting notices and minutes for all meetings where “rules and regulations were discussed” in August/September 2017.
◦ Meeting notices and minutes for meetings where the last HOA dues increase was discussed.
◦ A copy of the notice for the last association rate increase.
Respondent’s Position and Evidence
• Lack of Awareness: The HOA’s initial response on January 29, 2018, indicated it had only become aware of the request upon receiving notice of the petition. The current management company, Pride, testified they had not seen the original communication from the petitioner.
• Vagueness of Request: Frank Peake of Pride testified that the request for minutes of meetings “where the rules and regulations were discussed” was unclear “because rules and regulations are discussed in some form at virtually every meeting of the association.”
• Claim of Privilege: The initial response from The Management Trust on January 29, 2018, claimed that the requested minutes were for “closed executive meetings and were only available to Board members.”
Conclusion of Law and Ruling
• Statutory Violation: The ALJ concluded that the petitioner clearly made a request for documents and that the HOA, via its former management company, failed to act as required by law.
• Failure of Former Management: The decision explicitly faults the prior management company: “The Management Trust should have responded or requested additional clarification of what documents Petitioner was requesting as it was the management company during the ten day window Respondent had to respond pursuant to the statute.”
• Final Ruling: The petitioner successfully established by a preponderance of the evidence that the HOA violated A.R.S. § 33-1805(A). Mr. Duffett was deemed the prevailing party in Case Number 18F-H1818027-REL.
Final Order and Implications
The Administrative Law Judge issued the following orders based on the conclusions of law:
Case Number
Subject
Ruling
18F-H1818025-REL
Exterior Wall Repairs
Petition Denied
18F-H1818027-REL
Document Request
Petitioner Deemed Prevailing Party
Directives to the Respondent (Suntech Patio Homes HOA):
1. Future Compliance: The HOA must comply with the provisions of A.R.S. § 33-1805(A) going forward.
2. Payment of Filing Fee: The HOA must pay the petitioner his filing fee of $500.00 within thirty (30) days of the order.
This order is considered binding on the parties unless a rehearing is granted.
Petitioner won the statutory claim regarding access to association documents (A.R.S. § 33-1805(A)) and was refunded the $500 filing fee. Petitioner lost the claim regarding the failure to maintain exterior walls (CC&Rs) due to insufficient evidence.
Why this result: Petitioner failed to prove the maintenance issue by a preponderance of the evidence (for case 18F-H1818025-REL).
Key Issues & Findings
Failure to repair and maintain exterior walls
Petitioner alleged the HOA failed to repair damage (crack) to the exterior wall of his unit as required by the CC&Rs. The ALJ found that Petitioner failed to present sufficient evidence (black and white photographs did not clearly show the damage) to establish a violation.
Orders: Petitioner's petition in Case Number 18F-H1818025-REL is denied.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
CC&Rs
5
17
Failure to provide requested association records
Petitioner requested meeting notices and minutes in December 2017. Respondent's former management company failed to respond in a timely fashion. Petitioner established by a preponderance of the evidence that Respondent violated the statute.
Orders: Petitioner deemed the prevailing party in Case Number 18F-H1818027-REL. Respondent ordered to comply with A.R.S. § 33-1805(A) in the future and pay Petitioner the filing fee of $500.00.
Administrative Hearing Brief: Duffett vs. Suntech Patio Homes HOA
Executive Summary
This briefing document analyzes the Administrative Law Judge Decision in two consolidated cases filed by homeowner Rex E. Duffett against the Suntech Patio Homes Homeowners Association (HOA). The ruling presents a split decision, with the petitioner prevailing on one claim while failing to provide sufficient evidence for the other.
The first petition, concerning the HOA’s alleged failure to repair exterior walls, was denied. The petitioner failed to meet the burden of proof, as the submitted photographic evidence was unclear and did not sufficiently establish the existence or severity of the damage requiring immediate repair.
The second petition, concerning the HOA’s failure to provide association records upon request, was upheld. The judge found that the HOA, through its former management company, violated state law (A.R.S. § 33-1805(A)) by not responding to a formal document request within the mandated ten-business-day window.
As a result, Mr. Duffett was deemed the prevailing party in the records-request case. The HOA was ordered to pay his $500 filing fee and to ensure future compliance with the relevant statutes. The case highlights critical issues of evidence quality in homeowner disputes and demonstrates the legal liability an HOA retains for the failures of its management agents, particularly during periods of transition.
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Case Overview
Case Numbers
18F-H1818025-REL and 18F-H1818027-REL (Consolidated)
Petitioner
Rex E. Duffett
Respondent
Suntech Patio Homes Homeowners Association
Hearing Date
April 4, 2018
Decision Date
April 24, 2018
Presiding Judge
Administrative Law Judge Tammy L. Eigenheer
The hearing addressed two separate petitions filed by Rex E. Duffett with the Arizona Department of Real Estate:
1. Petition 1 (18F-H1818025-REL): Alleged the HOA violated community CC&Rs by failing to repair exterior walls of the petitioner’s unit.
2. Petition 2 (18F-H1818027-REL): Alleged the HOA violated A.R.S. § 33-1805(A) by failing to provide requested documents.
Petition 1: Failure to Repair Exterior Walls (Denied)
Petitioner’s Allegations and Evidence
• Core Claim: The petitioner alleged the HOA failed its duty, as defined by a March 1993 amendment to the CC&Rs, to maintain the exterior walls of his unit. The CC&Rs state, “The Suntech Patio Homeowners Association shall be responsible for the painting and maintenance of the following: A) Exterior walls of all units . . . .”
• Initial Request (July 14, 2017): Mr. Duffett faxed the HOA’s management company, The Management Trust, stating, “While inspecting the outside of my property I noticed a crack in the exterior wall. Please inspect, repair and paint the wall as soon as possible to prevent any damage which could result from rain water in the interior of the wall.”
• Follow-Up Request (August 21, 2017): In a certified letter, Mr. Duffett provided more detail, identifying a crack in the entryway wall allowing “rain water to seep into the interior wall,” a “bare concrete” area on the garage, and a previously cracked garage wall that had been repaired by a roofing company but not painted.
• Hearing Testimony: Mr. Duffett testified that a roofing company he hired to find a leak in his garage ceiling determined the source was not the roof but a crack in the exterior wall.
• Submitted Evidence: The petitioner submitted five black-and-white photographs of his home’s exterior across his two communications.
Respondent’s Position and Evidence
• Management Transition: Pride Community Management took over from The Management Trust on February 1, 2018. The new manager, Rebecca Stowers, and owner, Frank Peake, testified to a difficult transition where The Management Trust initially provided only one box of records, later discovering seven or eight more boxes in storage. Mr. Peake stated that Pride had not seen the petitioner’s communications regarding the damage until the hearing.
• Inspection: Ms. Stowers testified that she inspected the petitioner’s home on March 27, 2018. While she noted “a missing area of stucco on the front of the garage that needed to be repaired,” she “denied being able to identify a crack in the stucco anywhere else on the front of the house.”
• Community-Wide Repair Plan: Ms. Stowers stated that the HOA intended to repair the stucco and paint all exterior walls in the community during the 2018 calendar year at a projected cost of $46,000, to be funded potentially through a special assessment due to the HOA being underfunded.
Conclusion of Law and Ruling
• Burden of Proof: The Administrative Law Judge (ALJ) determined that the petitioner bore the burden of proving his claim by a preponderance of the evidence.
• Evidence Failure: The ALJ found the submitted evidence insufficient. The decision states: “The black and white photographs submitted at hearing did not clearly show the crack Petitioner alleged existed on the exterior wall of his unit… The Administrative Law Judge was unable to identify the location or severity of the alleged crack, and therefore, cannot conclude that such a crack exists and/or that it is necessary to be repaired immediately.”
• Final Ruling: The petitioner failed to meet his burden of proof. The petition in Case Number 18F-H1818025-REL was denied.
Petition 2: Failure to Provide Association Records (Upheld)
Petitioner’s Allegations and Evidence
• Core Claim: The petitioner alleged that the HOA violated A.R.S. § 33-1805(A), which requires an association to fulfill a request for records within ten business days.
• The Request (December 22, 2017): Mr. Duffett faxed The Management Trust a request for specific documents, citing a statement made by the HOA in a separate case. He requested copies of:
◦ Meeting notices and minutes for all meetings where “rules and regulations were discussed” in August/September 2017.
◦ Meeting notices and minutes for meetings where the last HOA dues increase was discussed.
◦ A copy of the notice for the last association rate increase.
Respondent’s Position and Evidence
• Lack of Awareness: The HOA’s initial response on January 29, 2018, indicated it had only become aware of the request upon receiving notice of the petition. The current management company, Pride, testified they had not seen the original communication from the petitioner.
• Vagueness of Request: Frank Peake of Pride testified that the request for minutes of meetings “where the rules and regulations were discussed” was unclear “because rules and regulations are discussed in some form at virtually every meeting of the association.”
• Claim of Privilege: The initial response from The Management Trust on January 29, 2018, claimed that the requested minutes were for “closed executive meetings and were only available to Board members.”
Conclusion of Law and Ruling
• Statutory Violation: The ALJ concluded that the petitioner clearly made a request for documents and that the HOA, via its former management company, failed to act as required by law.
• Failure of Former Management: The decision explicitly faults the prior management company: “The Management Trust should have responded or requested additional clarification of what documents Petitioner was requesting as it was the management company during the ten day window Respondent had to respond pursuant to the statute.”
• Final Ruling: The petitioner successfully established by a preponderance of the evidence that the HOA violated A.R.S. § 33-1805(A). Mr. Duffett was deemed the prevailing party in Case Number 18F-H1818027-REL.
Final Order and Implications
The Administrative Law Judge issued the following orders based on the conclusions of law:
Case Number
Subject
Ruling
18F-H1818025-REL
Exterior Wall Repairs
Petition Denied
18F-H1818027-REL
Document Request
Petitioner Deemed Prevailing Party
Directives to the Respondent (Suntech Patio Homes HOA):
1. Future Compliance: The HOA must comply with the provisions of A.R.S. § 33-1805(A) going forward.
2. Payment of Filing Fee: The HOA must pay the petitioner his filing fee of $500.00 within thirty (30) days of the order.
This order is considered binding on the parties unless a rehearing is granted.
Study Guide – 18F-H1818025-REL
Study Guide: Duffett v. Suntech Patio Homes HOA
This guide provides a comprehensive review of the Administrative Law Judge Decision in the consolidated cases of Rex E. Duffett v. Suntech Patio Homes Homeowners Association, Case Numbers 18F-H1818025-REL and 18F-H1818027-REL. The decision, issued by the Arizona Office of Administrative Hearings, addresses two separate petitions filed by a homeowner against his Homeowners Association (HOA), one concerning property maintenance and the other concerning access to association records.
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Quiz: Short-Answer Questions
Instructions: Answer the following questions in 2-3 complete sentences, drawing all information directly from the case decision.
1. Who were the primary parties in this administrative hearing, and what were their respective roles?
2. What were the two distinct allegations made by the Petitioner in the petitions that were consolidated for this hearing?
3. According to the community’s governing documents (CC&Rs), what specific responsibility did the HOA have regarding the exterior of residential units?
4. On what grounds did the Administrative Law Judge rule against the Petitioner in his claim for wall repairs (Case No. 18F-H1818025-REL)?
5. What specific Arizona statute did the Petitioner claim the HOA violated in his second petition regarding access to records (Case No. 18F-H1818027-REL)?
6. Describe the roles and performance of the two management companies, The Management Trust and Pride Community Management, as detailed in the hearing evidence.
7. What was the final outcome of the petition concerning the HOA’s failure to provide documents, and who was named the prevailing party?
8. What specific types of documents did the Petitioner request from the HOA in his fax dated December 22, 2017?
9. What was the legal standard of proof the Petitioner was required to meet, and for which petition did he successfully meet it?
10. What financial penalty was imposed upon the Respondent as part of the final Order?
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Answer Key
1. The Petitioner was Rex E. Duffett, a homeowner who filed the petitions. The Respondent was the Suntech Patio Homes Homeowners Association, the entity Mr. Duffett alleged had violated community rules and state law.
2. The first petition alleged that the HOA violated the CC&Rs by failing to respond to repeated requests for repairs to the exterior walls of his unit. The second petition alleged the HOA violated A.R.S. § 33-1805(A) by failing to provide requested association documents.
3. A March 1993 amendment to the CC&Rs states that the Suntech Patio Homeowners Association “shall be responsible for the painting and maintenance of the… Exterior walls of all units.”
4. The judge ruled against the Petitioner because he failed to establish his claim by a preponderance of the evidence. The black and white photographs submitted did not clearly show the alleged crack’s location or severity, so the judge could not conclude that a repair was immediately necessary.
5. The Petitioner claimed the HOA violated A.R.S. § 33-1805(A). This statute requires an association to make records reasonably available for examination and to provide copies of requested records within ten business days.
6. The Management Trust was the HOA’s management company when the incidents occurred and failed to properly respond to the Petitioner’s requests. Pride Community Management took over on February 1, 2018, and testified that the transition was difficult due to the sparse documentation initially provided by The Management Trust.
7. The judge ruled in favor of the Petitioner, deeming him the prevailing party in Case Number 18F-H1818027-REL. The judge ordered the HOA to comply with the applicable statute in the future.
8. The Petitioner requested copies of meeting notices and minutes for meetings where rules and regulations were discussed and where the last HOA dues increase was discussed. He also requested a copy of the notice of the last rate increase and any associated signed written consents.
9. The legal standard was “preponderance of the evidence,” defined as evidence with the most convincing force. The Petitioner failed to meet this standard for the wall repair petition but successfully met it for the document request petition.
10. The Respondent (HOA) was ordered to pay the Petitioner his filing fee of $500.00. The payment was to be made directly to the Petitioner within thirty days of the Order.
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Suggested Essay Questions
Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate a response using only the information and evidence presented in the provided decision.
1. Analyze the concept of “preponderance of the evidence” as it is defined and applied in this case. How did the quality of evidence submitted by the Petitioner lead to two different outcomes for his two petitions?
2. Discuss the role and responsibilities of a homeowners association’s management company, using the actions of The Management Trust and the subsequent challenges faced by Pride Community Management as primary examples. How did the transition between these two companies impact the case?
3. Evaluate the Respondent’s arguments and actions in both petitions. In the wall repair case, what was their stated plan, and why was it ultimately not considered by the judge? In the document request case, what was their defense, and why did it fail?
4. Based on the text of A.R.S. § 33-1805(A), explain the specific obligations of an HOA regarding member requests for records. Detail how the Suntech Patio Homes HOA, through its management, failed to meet these obligations, leading to the ruling against them.
5. Examine the communication breakdown between the Petitioner and the Respondent. Citing specific examples from the “Findings of Fact” and “Hearing Evidence” sections, explain how miscommunication and lack of timely response exacerbated the conflict.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official who presides over administrative hearings, weighs evidence, and issues a legally binding decision. In this case, the ALJ was Tammy L. Eigenheer.
A.R.S. § 33-1805(A)
An Arizona Revised Statute that legally requires homeowners associations to make financial and other records available for member examination and to provide copies upon request within ten business days.
A.R.S. § 32-2199 et seq.
The section of the Arizona Revised Statutes that grants jurisdiction to the Arizona Department of Real Estate to hear disputes between homeowners and their associations.
Conditions, Covenants and Restrictions (CC&Rs)
The governing legal documents that establish the rules, obligations, and restrictions for a planned community and its homeowners association.
Consolidated for Hearing
A procedural step where two or more separate legal cases involving the same parties are combined into a single hearing for efficiency.
Department
Within the context of this case, refers to the Arizona Department of Real Estate, the state agency where the Petitioner initially filed his petitions.
The final, legally binding ruling issued by the Administrative Law Judge at the conclusion of the hearing.
Petitioner
The party who initiates a legal action by filing a petition. In this case, homeowner Rex E. Duffett.
Preponderance of the Evidence
The standard of proof required in this proceeding. It is met when the evidence presented has “the most convincing force” and is more likely true than not.
Prevailing Party
The party who is found to have won the legal dispute. The Petitioner was deemed the prevailing party in the document request case.
Respondent
The party against whom a petition is filed and who must respond to the allegations. In this case, the Suntech Patio Homes Homeowners Association.
Blog Post – 18F-H1818025-REL
A Homeowner Sued His HOA Over a Cracked Wall. He Lost Because of Bad Photocopies.
Introduction: The David vs. Goliath Battle Against Your HOA
For many homeowners, a dispute with their Homeowners Association (HOA) can feel like an uphill battle. It’s a common story of frustration, complex rules, and feeling unheard. The legal case of Rex E. Duffett versus the Suntech Patio Homes HOA is a perfect example, but with a twist. This isn’t just a story about winning or losing; it’s a fascinating cautionary tale filled with surprising lessons for any homeowner navigating a conflict with their association. This breakdown of the real-life administrative court decision reveals the unexpected details that can make or break a case.
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1. Takeaway #1: The Quality of Your Proof Matters More Than the Truth
The dispute began when Rex Duffett filed a petition alleging his HOA had failed to repair a crack in his exterior wall that he claimed was causing a water leak. According to the association’s own CC&Rs, maintaining exterior walls was the HOA’s responsibility. To document the problem, he diligently sent faxes and certified mail to the management company, including photographs of the damage.
Despite his efforts, the Administrative Law Judge denied his petition for repairs.
The reason was as surprising as it was simple: the evidence he submitted was not clear enough. The black and white copies of the photographs he provided at the hearing “did not clearly show any damage.” The judge’s finding was blunt and highlights a critical point for any legal dispute:
The Administrative Law Judge was unable to identify the location or severity of the alleged crack, and therefore, cannot conclude that such a crack exists and/or that it is necessary to be repaired immediately.
The lesson here is critical. In a legal dispute, having proof is not enough; the proof must be clear, convincing, and well-presented. Mr. Duffett’s primary case failed not because he was necessarily wrong, but because his evidence failed to persuade the judge. In an administrative hearing, a handful of high-resolution color photographs, or even a short video, would have provided irrefutable evidence and could have changed the entire outcome of his primary petition.
2. Takeaway #2: Your HOA is on the Hook for Its Management Company’s Failures
Mr. Duffett also filed a second petition against the HOA for failing to provide records he requested, such as meeting minutes. Under Arizona law (A.R.S. § 33-1805(A)), an association must fulfill such a request within ten business days. The HOA failed to do so.
The root of the problem was the HOA’s previous management company, “The Management Trust.” This company not only failed to respond to the homeowner’s request but also failed to notify the new management company about it. The relationship between the HOA and this vendor was so poor that the HOA had previously tried to terminate the contract, but the management company “refused to acknowledge the termination and held Respondent to the full two year contract.” The transition was chaotic; the old company initially provided only one box of information before later discovering “seven or eight more boxes” in storage.
Even though the management company was clearly at fault, the Judge ruled that the HOA violated the law. This provides a powerful insight for both boards and homeowners: an HOA cannot blame its vendors. Legally, the association is the responsible party. Hiring an incompetent or unresponsive management company creates significant legal and financial liability for the association and, by extension, every homeowner. This is not an abstract risk; in this case, the management company’s failure to forward a simple request directly led to a legal violation that cost the association—and thus, its members—the $500 filing fee ordered by the judge.
3. Takeaway #3: A “Win” Can Be More Complicated Than It Looks
When you look at the final outcome, Mr. Duffett’s case presents a nuanced picture of what a “win” really means in an HOA dispute. The judge issued a split decision:
• Petition for Repairs: Denied. The homeowner lost.
• Petition for Documents: The homeowner was deemed the “prevailing party.” He won.
As the prevailing party in the second petition, the homeowner received a clear victory. The judge ordered the HOA to comply with the document access law in the future and, crucially, to pay the homeowner back his $500 filing fee.
This highlights a common reality in legal disputes: a homeowner can secure a clear procedural victory (enforcing the right to documents and recovering fees) while simultaneously failing to achieve their core substantive goal (getting the wall repaired). The outcome shows that legal victories can be partial and may not address the real-world problem that initiated the dispute in the first place.
4. Takeaway #4: Vague Requests and Messy Records Create Chaos
This case is a masterclass in how poor communication from both sides can create a perfect storm of dysfunction.
First, the homeowner’s request for documents was “somewhat vague.” The new management company testified it was “unclear because rules and regulations are discussed in some form at virtually every meeting.” While the HOA still violated the law by failing to respond at all, this highlights a crucial lesson for homeowners: be as specific and clear as possible in all written communication to avoid ambiguity.
This vague request then ran headlong into the second problem: the HOA’s institutional chaos. The new Community Manager testified that the only relevant document they possessed was the minutes from a single meeting, and that “seven or eight more boxes” of records were missing after a disastrous transition between management companies. The homeowner’s ambiguous request met an organization that likely couldn’t have responded effectively even if it wanted to.
For both sides, meticulous documentation is a shield. For homeowners, a clear, specific, and undeniable paper trail strengthens their position. For HOA boards, organized records are essential for smooth operations, seamless transitions between management companies, and, most importantly, avoiding legal liability.
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Conclusion: The Devil is in the Details
The case of Duffett v. Suntech Patio Homes HOA is a powerful reminder that in legal disputes, the outcome often hinges on the small stuff. Small details—the quality of a photocopy, the precise wording of a request, the competence of a vendor, the location of a box of files—can have massive consequences. They can mean the difference between winning and losing, between getting a problem solved and walking away with only a partial victory.
This case shows how easily things can go wrong. The next time you’re in a dispute, what’s the one small detail you might be overlooking that could change everything?
Case Participants
Petitioner Side
Rex E. Duffett(petitioner)
Respondent Side
Nathan Tennyson(attorney) BROWN/OLCOTT, PLLC
Rebecca Stowers(property manager) Pride Community Management Community Manager
Frank Peake(property manager) Pride Community Management Owner of Pride
Shawn Mason(property manager) The Management Trust Former management company staff
Neutral Parties
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
LDettorre(ADRE staff) Arizona Department of Real Estate
AHansen(ADRE staff) Arizona Department of Real Estate
djones(ADRE staff) Arizona Department of Real Estate
DGardner(ADRE staff) Arizona Department of Real Estate
ncano(ADRE staff) Arizona Department of Real Estate
The Petitioner's claim that the HOA violated CC&Rs Article 10.8 (Notice of Violation) was dismissed because the Article governs only recorded notices, and the Petitioner did not prove the notices in question were recorded.
Why this result: Petitioner failed to establish by a preponderance of the evidence that Mountain Rose violated its CC&Rs Article 10.8, because that provision applies only to recorded notices, and the notices issued to the Petitioner were not recorded.
Key Issues & Findings
Alleged violation of CC&R notice requirements regarding clarity and completeness of violation notices.
The Petitioner alleged the HOA violated CC&Rs Article 10.8 because the violation notices sent to him failed to include five mandatory pieces of information required by that section of the CC&Rs. The Petitioner also sought the refund of $175 in fines.
Orders: Petitioners' petition in this matter is dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 41-2198.01
A.A.C. R2-19-119
Analytics Highlights
Topics: HOA, CC&R, Notice of Violation, Recording
Additional Citations:
A.R.S. § 41-2198.01
A.A.C. R2-19-119
Video Overview
Audio Overview
Decision Documents
18F-H1817019-REL Decision – 620124.pdf
Uploaded 2026-01-23T17:22:41 (78.5 KB)
Briefing Doc – 18F-H1817019-REL
Case Briefing: Webster v. Mountain Rose Homeowners Association
Executive Summary
This document provides a comprehensive analysis of the Administrative Law Judge Decision in case number 18F-H1817019-REL, wherein Petitioner Jerry L. Webster’s complaint against the Mountain Rose Homeowners Association was dismissed. The central issue revolved around Mr. Webster’s claim that the HOA engaged in a pattern of harassment by issuing vague and improper violation notices that failed to comply with Article 10.8 of the community’s Covenants, Conditions, and Restrictions (CC&Rs).
The case was decided on a critical legal interpretation of the CC&Rs. The presiding judge determined that the specific requirements of Article 10.8, which Mr. Webster cited as being violated, apply exclusively to violation notices that are formally “Recorded” with the Maricopa County Recorder’s office. The petitioner failed to provide any evidence, or even make the claim, that the notices he received had been recorded. Consequently, Mr. Webster did not meet his burden of proof to demonstrate that the HOA had violated the cited article. The dismissal of the petition was based entirely on this procedural and definitional distinction, without a ruling on the petitioner’s underlying allegations of harassment or selective enforcement.
Case Background
• Parties:
◦ Petitioner: Jerry L. Webster, a homeowner and member of the Mountain Rose Homeowners Association.
◦ Respondent: Mountain Rose Homeowners Association (“Mountain Rose”), located in Scottsdale, Arizona.
• Adjudicating Body:
◦ The Office of Administrative Hearings in Phoenix, Arizona.
◦ Administrative Law Judge: Velva Moses-Thompson.
• Key Dates:
◦ 2016–2017: Mountain Rose issues a series of violation notices to Mr. Webster regarding tree trimming and debris cleanup.
◦ December 6, 2017: Mr. Webster files a petition with the Arizona Department of Real Estate.
◦ February 9, 2018: A hearing is held.
◦ February 9, 2018: The Administrative Law Judge issues the decision dismissing the petition.
Petitioner’s Allegations and Arguments
Mr. Webster’s petition centered on the claim that the HOA’s actions constituted harassment and violated specific provisions of the governing documents.
Core Claim: Violation of CC&Rs Article 10.8
Mr. Webster contended that the violation notices he received from Mountain Rose were invalid because they failed to contain information mandated by Article 10.8 (“Notice of Violation”) of the CC&Rs. Specifically, he alleged the notices omitted the following required elements:
• (ii) The legal description of the lot against which the notice is being Recorded.
• (iii) A brief description of the nature of the violation.
• (iv) A statement that the notice is being Recorded by the Association pursuant to the Declaration.
• (v) A statement of the specific steps which must be taken by the Owner or occupant to cure the violation.
Allegations of Harassment and Prejudicial Treatment
In his petition, Mr. Webster framed the HOA’s actions as a targeted and unfair campaign against him.
• Stated Intent: “The intent of this action is to stop the HOA from violating our civil rights by prejudicially harassing us with unclear and unwarranted violation notices.”
• History of Conflict: He alleged that “The HOA has harassed us for over 10 years with vague violation notices.”
• Lack of Communication: He claimed that his “Numerous requests were made for clarification…which were ignored.”
• Financial Penalties: Mr. Webster stated he was recently fined three times for a total of $175, which he sought to have refunded.
• Alleged Bias: To demonstrate selective enforcement, Mr. Webster noted that a review of the neighborhood revealed “22 trees touching dwellings, including ours,” and stated, “It is very doubtful any other member received notices or fines for identical circumstances.”
• Supporting Evidence: Mr. Webster submitted an aerial photo from 2012 showing the tree in a similar condition, a 2017 photo of another home with a tree touching the dwelling, and a 2017 photo of HOA-maintained trees.
Respondent’s Position
The Mountain Rose HOA, represented by Nathan Tennyson, Esq., presented a focused defense based on the specific language of the CC&Rs.
• Central Argument: The HOA contended that the violation notices issued to Mr. Webster were not recorded with the Maricopa County Recorder.
• Legal Position: Because the notices were not recorded, the stringent requirements outlined in Article 10.8 did not apply to them.
• Additional Detail: The HOA also argued that it had previously communicated the necessary corrective action to Mr. Webster, stating that “his tree needed to be trimmed 8 feet above the ground.”
The Decisive Legal Interpretation and Ruling
The Administrative Law Judge’s decision hinged on the precise definition and application of “Recording” as established within the Mountain Rose CC&Rs.
The Definition of “Recording”
Article 1.33 of the CC&Rs provides the controlling definition:
“Recording” means placing an instrument of public record in the office of County Recorder of Maricopa County, Arizona, and “Recorded” means having been so placed of public record.
Application of Law to Facts
The Judge concluded that Mr. Webster’s entire case rested on a misapplication of Article 10.8.
• Limited Scope of Article 10.8: The ruling states, “Mountain Rose CC&Rs Article 10.8. applies to the recording of notices and recorded notices.”
• Burden of Proof: Under Arizona law (A.A.C. R2-19-119), the burden of proof fell to the petitioner, Mr. Webster, to demonstrate his claim by a preponderance of the evidence.
• Crucial Factual Finding: The decision explicitly states, “There was no evidence presented at hearing that the notices issued to Mr. Webster were recorded.“
• Petitioner’s Failure to Allege: The Judge further noted, “Mr. Webster did not even contend that Mountain Rose recorded the notices issued to him.”
Conclusion of Law
Based on the evidence and the plain language of the CC&Rs, the Judge found that Mr. Webster failed to make his case.
“Mr. Webster failed to establish by a preponderance of the evidence that Mountain Rose violated its CC&Rs as described above.”
Final Order and Disposition
The petition was summarily dismissed based on the failure to prove that the relevant CC&R article was applicable to the facts presented.
Order:
“IT IS ORDERED that Petitioners’ petition in this matter is dismissed.”
The order was dated February 9, 2018, and transmitted to the parties on February 28, 2018.
Study Guide – 18F-H1817019-REL
Study Guide: Case No. 18F-H1817019-REL
This study guide provides a detailed review of the Administrative Law Judge Decision in the case of Jerry L. Webster v. Mountain Rose Homeowners Association, heard on February 9, 2018. It includes a quiz to test comprehension, suggested essay topics for deeper analysis, and a glossary of key terms as defined within the source document.
Answer the following questions in 2-3 complete sentences based on the provided source text.
1. Identify the primary parties involved in this case and describe their respective roles.
2. What was the central accusation that Petitioner Jerry L. Webster made against the Mountain Rose Homeowners Association?
3. Which specific article of the Covenants, Conditions, and Restrictions (CC&Rs) did Mr. Webster claim the HOA violated, and what key information did he allege was missing from the notices he received?
4. Beyond the content of the violation notices, what other complaints did Mr. Webster include in his petition regarding the HOA’s conduct?
5. According to the Mountain Rose CC&Rs, what is the specific definition of “Recording”?
6. What was the key piece of evidence that was absent from the hearing, which proved critical to the final decision?
7. What was the Mountain Rose HOA’s primary defense against Mr. Webster’s allegation that it had violated Article 10.8 of the CC&Rs?
8. In this type of administrative hearing, who holds the burden of proof, and what is the standard of proof required to win the case?
9. What was the final Order issued by Administrative Law Judge Velva Moses-Thompson in this matter?
10. What recourse did the parties have after the judge issued the Order on February 9, 2018?
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Answer Key
1. The primary parties were Petitioner Jerry L. Webster, a homeowner and member of the association, and Respondent Mountain Rose Homeowners Association, a planned community in Scottsdale, Arizona. Mr. Webster filed a petition alleging violations by the HOA, making him the accuser, while the HOA was the party responding to the allegations.
2. Mr. Webster’s central accusation was that the HOA violated Article 10.8 of its own CC&Rs. He contended that the HOA engaged in prejudicial harassment by sending him a series of vague, unclear, and unwarranted violation notices over a period of more than 10 years.
3. Mr. Webster claimed the HOA violated Article 10.8, titled “Notice of Violation.” He alleged the notices he received failed to include several required subsections, including the legal description of the lot (ii), a brief description of the violation (iii), a statement that the notice was being Recorded (iv), and a statement of the specific steps needed to cure the violation (v).
4. Mr. Webster also complained that his numerous requests for clarification were ignored and that the HOA’s intent was harassment. He claimed he was fined $175 based on invalid notices and that the HOA was engaging in selective enforcement, noting 22 other homes had trees touching dwellings without receiving similar notices or fines.
5. According to Article 1.33 of the CC&Rs, “Recording” is defined as placing an instrument of public record in the office of the County Recorder of Maricopa County, Arizona. “Recorded” means that the instrument has been placed on public record in that office.
6. The key piece of evidence absent from the hearing was any proof that the violation notices sent to Mr. Webster were ever recorded with the County Recorder of Maricopa County. The judge’s decision explicitly states, “There was no evidence presented at hearing that the notices issued to Mr. Webster were recorded.”
7. The HOA’s primary defense was that the requirements of Article 10.8 only apply to recorded notices. Since the notices issued to Mr. Webster were never recorded, the HOA argued that the article’s specific formatting requirements were not applicable to their correspondence with him.
8. The burden of proof falls to the party asserting the claim, which in this case was the Petitioner, Mr. Webster. The standard of proof required is a “preponderance of the evidence,” which means the evidence must have the most convincing force and be sufficient to incline a fair and impartial mind to one side of the issue.
9. The final Order issued by the judge was that the Petitioner’s petition in the matter be dismissed. This means Mr. Webster’s case was unsuccessful.
10. After the Order was issued, the parties had the right to request a rehearing. Pursuant to A.R.S. § 41-1092.09, this request had to be filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
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Essay Questions
The following questions are designed for longer-form, analytical answers. Answers are not provided.
1. Analyze the petitioner’s argument as presented in the petition. What was the critical legal misinterpretation regarding Article 10.8 that ultimately led to the dismissal of his case?
2. Explain the direct relationship between Article 1.33 (“Recording”) and Article 10.8 (“Notice of Violation”). How did the specific definition in the former article completely undermine the petitioner’s entire claim, which was based on the latter?
3. Discuss the concepts of “burden of proof” and “preponderance of the evidence” as applied in this case. Citing specific findings from the decision, explain exactly how the petitioner failed to meet this standard.
4. Mr. Webster raised several secondary issues in his petition, including allegations of long-term harassment, selective enforcement (“22 trees touch dwellings”), and ignored requests for clarification. Why were these claims ultimately not addressed or validated in the Administrative Law Judge’s final decision?
5. Based on the text of Article 10.8, what is the specific function and legal purpose of a recorded Notice of Violation? Why might an HOA choose to go through the formal process of recording a notice rather than just sending an unrecorded letter to a homeowner?
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Glossary
Definition from Source Context
Administrative Law Judge (ALJ)
The official who presides over hearings at the Office of Administrative Hearings. In this case, the ALJ was Velva Moses-Thompson.
A.R.S. § 41-2198.01
An Arizona Revised Statute that permits a homeowner or a planned community organization to file a petition with the Department of Real Estate for a hearing concerning violations of community documents or statutes.
Burden of Proof
The responsibility of the party asserting a claim or right to prove their case. In this matter, the burden of proof fell to the Petitioner.
An abbreviation for the Declaration of Covenants, Conditions and Restrictions for Mountain Rose, which are the governing documents for the homeowners association.
Department
The Arizona Department of Real Estate, the agency with which Mr. Webster filed his petition.
Notice of Violation (Article 10.8)
A written notice that the Association has the right to record. This article specifies that such a recorded notice must contain five key pieces of information, including the legal description of the lot and the specific steps to cure the violation. Its provisions apply specifically to notices that are formally recorded.
Petitioner
The party who filed the petition. In this case, it was Jerry L. Webster, a homeowner and member of the Mountain Rose HOA.
Preponderance of the Evidence
The standard of proof required in this hearing. It is defined as “the greater weight of the evidence…that has the most convincing force; superior evidentiary weight that…is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
Recording (Article 1.33)
The act of “placing an instrument of public record in the office of County Recorder of Maricopa County, Arizona.” “Recorded” means having been so placed on public record.
Respondent
The party against whom the petition was filed. In this case, it was the Mountain Rose Homeowners Association.
Blog Post – 18F-H1817019-REL
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The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings in Arizona, addressing a dispute between Petitioner Jerry L. Webster and the Respondent Mountain Rose Homeowners Association (HOA). Mr. Webster alleged that the HOA violated Article 10.8 of its CC&Rs by issuing unclear and unwarranted violation notices, specifically regarding the trimming of his tree and cleaning debris, and he sought the refund of recent fines. The HOA contended that the notices were not recorded, making the specific requirements of Article 10.8—which applies to recorded notices—inapplicable to the general violation notices Mr. Webster received. Ultimately, the Administrative Law Judge found that Mr. Webster failed to establish by a preponderance of the evidence that the HOA violated the CC&Rs because the notices in question were never officially recorded, leading to the dismissal of the Petitioner’s petition.
Audio Overview
Video Overview Video Overview
Mind Map Mind Map
Reports Reports
Flashcards Flashcards
Quiz Quiz
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Case Participants
Petitioner Side
Jerry L. Webster(petitioner)
Pamela Webster(witness)
Respondent Side
Nathan Tennyson(HOA attorney)
Frank Puma(manager) Mountain Rose
Neutral Parties
Velva Moses-Thompson(ALJ)
Judy Lowe(Commissioner) Arizona Department of Real Estate
The Petitioner's claim that the HOA violated CC&Rs Article 10.8 (Notice of Violation) was dismissed because the Article governs only recorded notices, and the Petitioner did not prove the notices in question were recorded.
Why this result: Petitioner failed to establish by a preponderance of the evidence that Mountain Rose violated its CC&Rs Article 10.8, because that provision applies only to recorded notices, and the notices issued to the Petitioner were not recorded.
Key Issues & Findings
Alleged violation of CC&R notice requirements regarding clarity and completeness of violation notices.
The Petitioner alleged the HOA violated CC&Rs Article 10.8 because the violation notices sent to him failed to include five mandatory pieces of information required by that section of the CC&Rs. The Petitioner also sought the refund of $175 in fines.
Orders: Petitioners' petition in this matter is dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 41-2198.01
A.A.C. R2-19-119
Analytics Highlights
Topics: HOA, CC&R, Notice of Violation, Recording
Additional Citations:
A.R.S. § 41-2198.01
A.A.C. R2-19-119
Video Overview
Audio Overview
Decision Documents
18F-H1817019-REL Decision – 620124.pdf
Uploaded 2025-10-09T03:32:17 (78.5 KB)
Briefing Doc – 18F-H1817019-REL
Case Briefing: Webster v. Mountain Rose Homeowners Association
Executive Summary
This document provides a comprehensive analysis of the Administrative Law Judge Decision in case number 18F-H1817019-REL, wherein Petitioner Jerry L. Webster’s complaint against the Mountain Rose Homeowners Association was dismissed. The central issue revolved around Mr. Webster’s claim that the HOA engaged in a pattern of harassment by issuing vague and improper violation notices that failed to comply with Article 10.8 of the community’s Covenants, Conditions, and Restrictions (CC&Rs).
The case was decided on a critical legal interpretation of the CC&Rs. The presiding judge determined that the specific requirements of Article 10.8, which Mr. Webster cited as being violated, apply exclusively to violation notices that are formally “Recorded” with the Maricopa County Recorder’s office. The petitioner failed to provide any evidence, or even make the claim, that the notices he received had been recorded. Consequently, Mr. Webster did not meet his burden of proof to demonstrate that the HOA had violated the cited article. The dismissal of the petition was based entirely on this procedural and definitional distinction, without a ruling on the petitioner’s underlying allegations of harassment or selective enforcement.
Case Background
• Parties:
◦ Petitioner: Jerry L. Webster, a homeowner and member of the Mountain Rose Homeowners Association.
◦ Respondent: Mountain Rose Homeowners Association (“Mountain Rose”), located in Scottsdale, Arizona.
• Adjudicating Body:
◦ The Office of Administrative Hearings in Phoenix, Arizona.
◦ Administrative Law Judge: Velva Moses-Thompson.
• Key Dates:
◦ 2016–2017: Mountain Rose issues a series of violation notices to Mr. Webster regarding tree trimming and debris cleanup.
◦ December 6, 2017: Mr. Webster files a petition with the Arizona Department of Real Estate.
◦ February 9, 2018: A hearing is held.
◦ February 9, 2018: The Administrative Law Judge issues the decision dismissing the petition.
Petitioner’s Allegations and Arguments
Mr. Webster’s petition centered on the claim that the HOA’s actions constituted harassment and violated specific provisions of the governing documents.
Core Claim: Violation of CC&Rs Article 10.8
Mr. Webster contended that the violation notices he received from Mountain Rose were invalid because they failed to contain information mandated by Article 10.8 (“Notice of Violation”) of the CC&Rs. Specifically, he alleged the notices omitted the following required elements:
• (ii) The legal description of the lot against which the notice is being Recorded.
• (iii) A brief description of the nature of the violation.
• (iv) A statement that the notice is being Recorded by the Association pursuant to the Declaration.
• (v) A statement of the specific steps which must be taken by the Owner or occupant to cure the violation.
Allegations of Harassment and Prejudicial Treatment
In his petition, Mr. Webster framed the HOA’s actions as a targeted and unfair campaign against him.
• Stated Intent: “The intent of this action is to stop the HOA from violating our civil rights by prejudicially harassing us with unclear and unwarranted violation notices.”
• History of Conflict: He alleged that “The HOA has harassed us for over 10 years with vague violation notices.”
• Lack of Communication: He claimed that his “Numerous requests were made for clarification…which were ignored.”
• Financial Penalties: Mr. Webster stated he was recently fined three times for a total of $175, which he sought to have refunded.
• Alleged Bias: To demonstrate selective enforcement, Mr. Webster noted that a review of the neighborhood revealed “22 trees touching dwellings, including ours,” and stated, “It is very doubtful any other member received notices or fines for identical circumstances.”
• Supporting Evidence: Mr. Webster submitted an aerial photo from 2012 showing the tree in a similar condition, a 2017 photo of another home with a tree touching the dwelling, and a 2017 photo of HOA-maintained trees.
Respondent’s Position
The Mountain Rose HOA, represented by Nathan Tennyson, Esq., presented a focused defense based on the specific language of the CC&Rs.
• Central Argument: The HOA contended that the violation notices issued to Mr. Webster were not recorded with the Maricopa County Recorder.
• Legal Position: Because the notices were not recorded, the stringent requirements outlined in Article 10.8 did not apply to them.
• Additional Detail: The HOA also argued that it had previously communicated the necessary corrective action to Mr. Webster, stating that “his tree needed to be trimmed 8 feet above the ground.”
The Decisive Legal Interpretation and Ruling
The Administrative Law Judge’s decision hinged on the precise definition and application of “Recording” as established within the Mountain Rose CC&Rs.
The Definition of “Recording”
Article 1.33 of the CC&Rs provides the controlling definition:
“Recording” means placing an instrument of public record in the office of County Recorder of Maricopa County, Arizona, and “Recorded” means having been so placed of public record.
Application of Law to Facts
The Judge concluded that Mr. Webster’s entire case rested on a misapplication of Article 10.8.
• Limited Scope of Article 10.8: The ruling states, “Mountain Rose CC&Rs Article 10.8. applies to the recording of notices and recorded notices.”
• Burden of Proof: Under Arizona law (A.A.C. R2-19-119), the burden of proof fell to the petitioner, Mr. Webster, to demonstrate his claim by a preponderance of the evidence.
• Crucial Factual Finding: The decision explicitly states, “There was no evidence presented at hearing that the notices issued to Mr. Webster were recorded.“
• Petitioner’s Failure to Allege: The Judge further noted, “Mr. Webster did not even contend that Mountain Rose recorded the notices issued to him.”
Conclusion of Law
Based on the evidence and the plain language of the CC&Rs, the Judge found that Mr. Webster failed to make his case.
“Mr. Webster failed to establish by a preponderance of the evidence that Mountain Rose violated its CC&Rs as described above.”
Final Order and Disposition
The petition was summarily dismissed based on the failure to prove that the relevant CC&R article was applicable to the facts presented.
Order:
“IT IS ORDERED that Petitioners’ petition in this matter is dismissed.”
The order was dated February 9, 2018, and transmitted to the parties on February 28, 2018.
Study Guide – 18F-H1817019-REL
Study Guide: Case No. 18F-H1817019-REL
This study guide provides a detailed review of the Administrative Law Judge Decision in the case of Jerry L. Webster v. Mountain Rose Homeowners Association, heard on February 9, 2018. It includes a quiz to test comprehension, suggested essay topics for deeper analysis, and a glossary of key terms as defined within the source document.
Answer the following questions in 2-3 complete sentences based on the provided source text.
1. Identify the primary parties involved in this case and describe their respective roles.
2. What was the central accusation that Petitioner Jerry L. Webster made against the Mountain Rose Homeowners Association?
3. Which specific article of the Covenants, Conditions, and Restrictions (CC&Rs) did Mr. Webster claim the HOA violated, and what key information did he allege was missing from the notices he received?
4. Beyond the content of the violation notices, what other complaints did Mr. Webster include in his petition regarding the HOA’s conduct?
5. According to the Mountain Rose CC&Rs, what is the specific definition of “Recording”?
6. What was the key piece of evidence that was absent from the hearing, which proved critical to the final decision?
7. What was the Mountain Rose HOA’s primary defense against Mr. Webster’s allegation that it had violated Article 10.8 of the CC&Rs?
8. In this type of administrative hearing, who holds the burden of proof, and what is the standard of proof required to win the case?
9. What was the final Order issued by Administrative Law Judge Velva Moses-Thompson in this matter?
10. What recourse did the parties have after the judge issued the Order on February 9, 2018?
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Answer Key
1. The primary parties were Petitioner Jerry L. Webster, a homeowner and member of the association, and Respondent Mountain Rose Homeowners Association, a planned community in Scottsdale, Arizona. Mr. Webster filed a petition alleging violations by the HOA, making him the accuser, while the HOA was the party responding to the allegations.
2. Mr. Webster’s central accusation was that the HOA violated Article 10.8 of its own CC&Rs. He contended that the HOA engaged in prejudicial harassment by sending him a series of vague, unclear, and unwarranted violation notices over a period of more than 10 years.
3. Mr. Webster claimed the HOA violated Article 10.8, titled “Notice of Violation.” He alleged the notices he received failed to include several required subsections, including the legal description of the lot (ii), a brief description of the violation (iii), a statement that the notice was being Recorded (iv), and a statement of the specific steps needed to cure the violation (v).
4. Mr. Webster also complained that his numerous requests for clarification were ignored and that the HOA’s intent was harassment. He claimed he was fined $175 based on invalid notices and that the HOA was engaging in selective enforcement, noting 22 other homes had trees touching dwellings without receiving similar notices or fines.
5. According to Article 1.33 of the CC&Rs, “Recording” is defined as placing an instrument of public record in the office of the County Recorder of Maricopa County, Arizona. “Recorded” means that the instrument has been placed on public record in that office.
6. The key piece of evidence absent from the hearing was any proof that the violation notices sent to Mr. Webster were ever recorded with the County Recorder of Maricopa County. The judge’s decision explicitly states, “There was no evidence presented at hearing that the notices issued to Mr. Webster were recorded.”
7. The HOA’s primary defense was that the requirements of Article 10.8 only apply to recorded notices. Since the notices issued to Mr. Webster were never recorded, the HOA argued that the article’s specific formatting requirements were not applicable to their correspondence with him.
8. The burden of proof falls to the party asserting the claim, which in this case was the Petitioner, Mr. Webster. The standard of proof required is a “preponderance of the evidence,” which means the evidence must have the most convincing force and be sufficient to incline a fair and impartial mind to one side of the issue.
9. The final Order issued by the judge was that the Petitioner’s petition in the matter be dismissed. This means Mr. Webster’s case was unsuccessful.
10. After the Order was issued, the parties had the right to request a rehearing. Pursuant to A.R.S. § 41-1092.09, this request had to be filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
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Essay Questions
The following questions are designed for longer-form, analytical answers. Answers are not provided.
1. Analyze the petitioner’s argument as presented in the petition. What was the critical legal misinterpretation regarding Article 10.8 that ultimately led to the dismissal of his case?
2. Explain the direct relationship between Article 1.33 (“Recording”) and Article 10.8 (“Notice of Violation”). How did the specific definition in the former article completely undermine the petitioner’s entire claim, which was based on the latter?
3. Discuss the concepts of “burden of proof” and “preponderance of the evidence” as applied in this case. Citing specific findings from the decision, explain exactly how the petitioner failed to meet this standard.
4. Mr. Webster raised several secondary issues in his petition, including allegations of long-term harassment, selective enforcement (“22 trees touch dwellings”), and ignored requests for clarification. Why were these claims ultimately not addressed or validated in the Administrative Law Judge’s final decision?
5. Based on the text of Article 10.8, what is the specific function and legal purpose of a recorded Notice of Violation? Why might an HOA choose to go through the formal process of recording a notice rather than just sending an unrecorded letter to a homeowner?
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Glossary
Definition from Source Context
Administrative Law Judge (ALJ)
The official who presides over hearings at the Office of Administrative Hearings. In this case, the ALJ was Velva Moses-Thompson.
A.R.S. § 41-2198.01
An Arizona Revised Statute that permits a homeowner or a planned community organization to file a petition with the Department of Real Estate for a hearing concerning violations of community documents or statutes.
Burden of Proof
The responsibility of the party asserting a claim or right to prove their case. In this matter, the burden of proof fell to the Petitioner.
An abbreviation for the Declaration of Covenants, Conditions and Restrictions for Mountain Rose, which are the governing documents for the homeowners association.
Department
The Arizona Department of Real Estate, the agency with which Mr. Webster filed his petition.
Notice of Violation (Article 10.8)
A written notice that the Association has the right to record. This article specifies that such a recorded notice must contain five key pieces of information, including the legal description of the lot and the specific steps to cure the violation. Its provisions apply specifically to notices that are formally recorded.
Petitioner
The party who filed the petition. In this case, it was Jerry L. Webster, a homeowner and member of the Mountain Rose HOA.
Preponderance of the Evidence
The standard of proof required in this hearing. It is defined as “the greater weight of the evidence…that has the most convincing force; superior evidentiary weight that…is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
Recording (Article 1.33)
The act of “placing an instrument of public record in the office of County Recorder of Maricopa County, Arizona.” “Recorded” means having been so placed on public record.
Respondent
The party against whom the petition was filed. In this case, it was the Mountain Rose Homeowners Association.
Blog Post – 18F-H1817019-REL
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The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings in Arizona, addressing a dispute between Petitioner Jerry L. Webster and the Respondent Mountain Rose Homeowners Association (HOA). Mr. Webster alleged that the HOA violated Article 10.8 of its CC&Rs by issuing unclear and unwarranted violation notices, specifically regarding the trimming of his tree and cleaning debris, and he sought the refund of recent fines. The HOA contended that the notices were not recorded, making the specific requirements of Article 10.8—which applies to recorded notices—inapplicable to the general violation notices Mr. Webster received. Ultimately, the Administrative Law Judge found that Mr. Webster failed to establish by a preponderance of the evidence that the HOA violated the CC&Rs because the notices in question were never officially recorded, leading to the dismissal of the Petitioner’s petition.
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Case Participants
Petitioner Side
Jerry L. Webster(petitioner)
Pamela Webster(witness)
Respondent Side
Nathan Tennyson(HOA attorney)
Frank Puma(manager) Mountain Rose
Neutral Parties
Velva Moses-Thompson(ALJ)
Judy Lowe(Commissioner) Arizona Department of Real Estate
The ALJ denied the Petitioner's petition, concluding that the DMMA Communications committee meeting was not subject to the open meetings law because the committee did not hold 'regularly scheduled' meetings.
Why this result: Petitioner failed to prove by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1804, as the committee meeting in question did not meet the definition of a 'regularly scheduled committee meeting' required to be open to members.
Key Issues & Findings
Whether the Respondent violated the open meeting statute by closing a committee meeting.
Petitioner alleged that the DMMA Communications committee meeting was improperly closed and subject to open meeting laws. The ALJ determined the committee did not hold 'regularly scheduled' meetings (defined as meetings occurring at regular intervals) and was therefore not subject to A.R.S. § 33-1804.
Orders: Petitioner’s petition is denied.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1804
A.R.S. § 32-2199 et seq.
A.A.C. R2-19-119
State ex rel. Thomas v. Contes, 216 Ariz. 525, 527, 169 P.3d 115, 117 (App. 2007)
Marsoner v. Pima County, 166 Ariz. 486, 488, 803 P.2d 897, 899 (1991)
Analytics Highlights
Topics: HOA Open Meetings Law, Committee Meeting, Regularly Scheduled
Additional Citations:
A.R.S. § 33-1804
A.R.S. § 32-2199 et seq.
A.A.C. R2-19-119
State ex rel. Thomas v. Contes, 216 Ariz. 525, 527, 169 P.3d 115, 117 (App. 2007)
Marsoner v. Pima County, 166 Ariz. 486, 488, 803 P.2d 897, 899 (1991)
Audio Overview
Decision Documents
18F-H1817005-REL Decision – 634096.pdf
Uploaded 2025-10-08T07:03:08 (106.4 KB)
Briefing Doc – 18F-H1817005-REL
Briefing Document: Moselle v. Desert Mountain Master Association
Executive Summary
This document summarizes the Administrative Law Judge Decision in case number 18F-H1817005-REL-RHG, a dispute between homeowner Gary W. Moselle (Petitioner) and the Desert Mountain Master Association (DMMA/Respondent). The central issue was whether a “closed” meeting of the DMMA Communications Committee on September 6, 2017, violated Arizona’s open meetings law for planned communities, A.R.S. § 33-1804.
The case hinged on the interpretation of the phrase “regularly scheduled committee meetings.” The Petitioner argued this meant any meeting scheduled in a normal fashion, while the Respondent contended it applied only to meetings occurring at fixed, regular intervals. The Respondent provided evidence that the committee in question met infrequently and without a set schedule.
The Administrative Law Judge ultimately ruled in favor of the Respondent, concluding that “regularly scheduled” refers to meetings held at regular intervals. The judge found that the specific language of the statute requiring only “regularly scheduled” committee meetings to be open superseded the statute’s general policy statement in favor of open meetings. The Petitioner’s petition was denied.
Case Background and Timeline
The dispute originated from a petition filed by Gary W. Moselle with the Arizona Department of Real Estate, alleging that the DMMA violated state law by holding a closed committee meeting. The case progressed through an initial hearing, a decision, a successful request for a rehearing based on new evidence, and a final binding decision.
September 1, 2017
Gary W. Moselle files a petition with the Arizona Department of Real Estate.
September 5, 2017
The Department issues a notice to DMMA regarding the petition.
September 6, 2017
The DMMA Communications Committee holds a closed meeting, which Moselle is not permitted to attend.
September 18, 2017
DMMA files an answer to the petition, denying all allegations.
November 17, 2017
The initial hearing is held before the Office of Administrative Hearings.
December 7, 2017
The Administrative Law Judge issues an initial decision denying the petition.
January 4, 2018
Moselle files a request for a rehearing, citing newly discovered material evidence.
January 26, 2017
The Department grants the request for a rehearing.
April 20, 2018
A rehearing is conducted.
May 10, 2018
The Administrative Law Judge issues a final, binding decision denying the Petitioner’s petition.
The Central Legal Question: Interpretation of A.R.S. § 33-1804
The core of the dispute was the correct interpretation of Arizona Revised Statute § 33-1804(A), which governs open meetings for planned communities. The key statutory language under scrutiny was:
“…all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association…”
The case required the Administrative Law Judge to define the term “regularly scheduled” in the context of homeowners’ association committee meetings.
Arguments Presented
Petitioner’s Position (Gary W. Moselle)
The Petitioner’s case was built on a broad interpretation of the statute, emphasizing the legislative intent for transparency.
• Definition of “Regularly Scheduled”: Moselle argued that “regularly scheduled” should be interpreted to mean “scheduled in a normal fashion,” rather than strictly meaning meetings held at fixed intervals (e.g., monthly or quarterly).
• Legislative Policy: He pointed to A.R.S. § 33-1804(F), which states a broad policy that “all meetings of a planned community… be conducted openly.” He argued this policy statement should guide the interpretation of subsection (A) in favor of openness for all committee meetings.
• Committee Practices: In his prehearing brief, Moselle asserted that five of the six “functioning DMMA committees” meet “at the request of the chair,” implying this was the normal scheduling method and should fall under the statute.
Respondent’s Position (Desert Mountain Master Association)
The Respondent advocated for a narrower, more literal interpretation of the statute.
• Definition of “Regularly Scheduled”: DMMA argued the phrase meant meetings that “occurred at regular intervals, such as on the third Thursday of every month, quarterly, or even annually.”
• Evidence of Infrequent Meetings: DMMA presented testimony that the Communications Committee met infrequently and without a fixed interval. The committee held only four meetings in 2016 and 2017: two in April 2016, one in June 2017, and the contested meeting on September 6, 2017.
• Lack of Board Action: To support the claim that the committee was not conducting core business of the Board, DMMA asserted that a recommendation made by the committee (to send an email blast) was not acted upon by the DMMA Board of Directors.
Judicial Findings and Legal Conclusions
The Administrative Law Judge, Tammy L. Eigenheer, denied the petition, siding with the Respondent’s interpretation of the statute. The decision was based on principles of statutory construction and the evidence presented.
1. Statutory Interpretation and Plain Language
The primary goal in construing a statute is to ascertain legislative intent by first looking at the plain language. The Judge concluded that the plain language of A.R.S. § 33-1804(A) supports the interpretation that “regularly scheduled committee meetings” are those that “occur at regular intervals.” While acknowledging that the phrase could have multiple meanings, this did not preclude an interpretation based on its plain language.
2. Petitioner’s Contradictory Testimony
A key factor in the decision was the Petitioner’s own testimony during cross-examination. When asked about his assertion that five DMMA committees meet at the request of the chair, the Judge noted:
“Petitioner stated that five of the committees listed in the Volunteer Request page ‘meet at the request of the chair and they’re not regularly scheduled.'” (Hearing record 30:52 – 31:15)
The Judge found that in this statement, the Petitioner himself used the phrase “not regularly scheduled” to describe meetings that were called as needed rather than held at fixed intervals, thereby undermining his own legal argument.
3. Specific Language Overrides General Policy
The Judge addressed the Petitioner’s argument regarding the statute’s broad policy statement in favor of open meetings (A.R.S. § 33-1804(F)). The decision explicitly states:
“The general policy statement in favor of open meetings set forth in A.R.S. § 33-1804(F) does not override the specific provisions of A.R.S. § 33-1804(A) that only ‘regularly scheduled’ committee meetings must be open to the members.”
This conclusion establishes that the specific qualifier “regularly scheduled” in subsection (A) creates a deliberate exception to the general policy for certain committee meetings.
Final Order and Implications
Order: The Administrative Law Judge ordered that the Petitioner’s petition be denied.
Conclusion: The Judge concluded that at the time of the September 6, 2017 meeting, the DMMA Communication Committee did not hold “regularly scheduled” meetings as defined by the statute. Therefore, the Respondent’s decision to hold a closed meeting was not a violation of A.R.S. § 33-1804.
This decision, issued on May 10, 2018, is binding on the parties. Any appeal must be filed with the superior court within thirty-five days from the date of service.
The ALJ denied the Petitioner's petition, concluding that the DMMA Communications committee meeting was not subject to the open meetings law because the committee did not hold 'regularly scheduled' meetings.
Why this result: Petitioner failed to prove by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1804, as the committee meeting in question did not meet the definition of a 'regularly scheduled committee meeting' required to be open to members.
Key Issues & Findings
Whether the Respondent violated the open meeting statute by closing a committee meeting.
Petitioner alleged that the DMMA Communications committee meeting was improperly closed and subject to open meeting laws. The ALJ determined the committee did not hold 'regularly scheduled' meetings (defined as meetings occurring at regular intervals) and was therefore not subject to A.R.S. § 33-1804.
Orders: Petitioner’s petition is denied.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1804
A.R.S. § 32-2199 et seq.
A.A.C. R2-19-119
State ex rel. Thomas v. Contes, 216 Ariz. 525, 527, 169 P.3d 115, 117 (App. 2007)
Marsoner v. Pima County, 166 Ariz. 486, 488, 803 P.2d 897, 899 (1991)
Analytics Highlights
Topics: HOA Open Meetings Law, Committee Meeting, Regularly Scheduled
Additional Citations:
A.R.S. § 33-1804
A.R.S. § 32-2199 et seq.
A.A.C. R2-19-119
State ex rel. Thomas v. Contes, 216 Ariz. 525, 527, 169 P.3d 115, 117 (App. 2007)
Marsoner v. Pima County, 166 Ariz. 486, 488, 803 P.2d 897, 899 (1991)
Video Overview
Audio Overview
Decision Documents
18F-H1817005-REL Decision – 605190.pdf
Uploaded 2025-12-09T10:04:02 (77.0 KB)
18F-H1817005-REL Decision – 634096.pdf
Uploaded 2025-10-09T03:32:01 (106.4 KB)
Briefing Doc – 18F-H1817005-REL
Briefing Document: Moselle v. Desert Mountain Master Association
Executive Summary
This document summarizes the Administrative Law Judge Decision in case number 18F-H1817005-REL-RHG, a dispute between homeowner Gary W. Moselle (Petitioner) and the Desert Mountain Master Association (DMMA/Respondent). The central issue was whether a “closed” meeting of the DMMA Communications Committee on September 6, 2017, violated Arizona’s open meetings law for planned communities, A.R.S. § 33-1804.
The case hinged on the interpretation of the phrase “regularly scheduled committee meetings.” The Petitioner argued this meant any meeting scheduled in a normal fashion, while the Respondent contended it applied only to meetings occurring at fixed, regular intervals. The Respondent provided evidence that the committee in question met infrequently and without a set schedule.
The Administrative Law Judge ultimately ruled in favor of the Respondent, concluding that “regularly scheduled” refers to meetings held at regular intervals. The judge found that the specific language of the statute requiring only “regularly scheduled” committee meetings to be open superseded the statute’s general policy statement in favor of open meetings. The Petitioner’s petition was denied.
Case Background and Timeline
The dispute originated from a petition filed by Gary W. Moselle with the Arizona Department of Real Estate, alleging that the DMMA violated state law by holding a closed committee meeting. The case progressed through an initial hearing, a decision, a successful request for a rehearing based on new evidence, and a final binding decision.
September 1, 2017
Gary W. Moselle files a petition with the Arizona Department of Real Estate.
September 5, 2017
The Department issues a notice to DMMA regarding the petition.
September 6, 2017
The DMMA Communications Committee holds a closed meeting, which Moselle is not permitted to attend.
September 18, 2017
DMMA files an answer to the petition, denying all allegations.
November 17, 2017
The initial hearing is held before the Office of Administrative Hearings.
December 7, 2017
The Administrative Law Judge issues an initial decision denying the petition.
January 4, 2018
Moselle files a request for a rehearing, citing newly discovered material evidence.
January 26, 2017
The Department grants the request for a rehearing.
April 20, 2018
A rehearing is conducted.
May 10, 2018
The Administrative Law Judge issues a final, binding decision denying the Petitioner’s petition.
The Central Legal Question: Interpretation of A.R.S. § 33-1804
The core of the dispute was the correct interpretation of Arizona Revised Statute § 33-1804(A), which governs open meetings for planned communities. The key statutory language under scrutiny was:
“…all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association…”
The case required the Administrative Law Judge to define the term “regularly scheduled” in the context of homeowners’ association committee meetings.
Arguments Presented
Petitioner’s Position (Gary W. Moselle)
The Petitioner’s case was built on a broad interpretation of the statute, emphasizing the legislative intent for transparency.
• Definition of “Regularly Scheduled”: Moselle argued that “regularly scheduled” should be interpreted to mean “scheduled in a normal fashion,” rather than strictly meaning meetings held at fixed intervals (e.g., monthly or quarterly).
• Legislative Policy: He pointed to A.R.S. § 33-1804(F), which states a broad policy that “all meetings of a planned community… be conducted openly.” He argued this policy statement should guide the interpretation of subsection (A) in favor of openness for all committee meetings.
• Committee Practices: In his prehearing brief, Moselle asserted that five of the six “functioning DMMA committees” meet “at the request of the chair,” implying this was the normal scheduling method and should fall under the statute.
Respondent’s Position (Desert Mountain Master Association)
The Respondent advocated for a narrower, more literal interpretation of the statute.
• Definition of “Regularly Scheduled”: DMMA argued the phrase meant meetings that “occurred at regular intervals, such as on the third Thursday of every month, quarterly, or even annually.”
• Evidence of Infrequent Meetings: DMMA presented testimony that the Communications Committee met infrequently and without a fixed interval. The committee held only four meetings in 2016 and 2017: two in April 2016, one in June 2017, and the contested meeting on September 6, 2017.
• Lack of Board Action: To support the claim that the committee was not conducting core business of the Board, DMMA asserted that a recommendation made by the committee (to send an email blast) was not acted upon by the DMMA Board of Directors.
Judicial Findings and Legal Conclusions
The Administrative Law Judge, Tammy L. Eigenheer, denied the petition, siding with the Respondent’s interpretation of the statute. The decision was based on principles of statutory construction and the evidence presented.
1. Statutory Interpretation and Plain Language
The primary goal in construing a statute is to ascertain legislative intent by first looking at the plain language. The Judge concluded that the plain language of A.R.S. § 33-1804(A) supports the interpretation that “regularly scheduled committee meetings” are those that “occur at regular intervals.” While acknowledging that the phrase could have multiple meanings, this did not preclude an interpretation based on its plain language.
2. Petitioner’s Contradictory Testimony
A key factor in the decision was the Petitioner’s own testimony during cross-examination. When asked about his assertion that five DMMA committees meet at the request of the chair, the Judge noted:
“Petitioner stated that five of the committees listed in the Volunteer Request page ‘meet at the request of the chair and they’re not regularly scheduled.'” (Hearing record 30:52 – 31:15)
The Judge found that in this statement, the Petitioner himself used the phrase “not regularly scheduled” to describe meetings that were called as needed rather than held at fixed intervals, thereby undermining his own legal argument.
3. Specific Language Overrides General Policy
The Judge addressed the Petitioner’s argument regarding the statute’s broad policy statement in favor of open meetings (A.R.S. § 33-1804(F)). The decision explicitly states:
“The general policy statement in favor of open meetings set forth in A.R.S. § 33-1804(F) does not override the specific provisions of A.R.S. § 33-1804(A) that only ‘regularly scheduled’ committee meetings must be open to the members.”
This conclusion establishes that the specific qualifier “regularly scheduled” in subsection (A) creates a deliberate exception to the general policy for certain committee meetings.
Final Order and Implications
Order: The Administrative Law Judge ordered that the Petitioner’s petition be denied.
Conclusion: The Judge concluded that at the time of the September 6, 2017 meeting, the DMMA Communication Committee did not hold “regularly scheduled” meetings as defined by the statute. Therefore, the Respondent’s decision to hold a closed meeting was not a violation of A.R.S. § 33-1804.
This decision, issued on May 10, 2018, is binding on the parties. Any appeal must be filed with the superior court within thirty-five days from the date of service.
Study Guide – 18F-H1817005-REL
Study Guide: Moselle v. Desert Mountain Master Association (No. 18F-H1817005-REL-RHG)
This guide provides a detailed review of the Administrative Law Judge Decision in the case between Petitioner Gary W. Moselle and Respondent Desert Mountain Master Association. It includes a quiz with an answer key to test comprehension, essay questions for deeper analysis, and a glossary of key terms.
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Short-Answer Quiz
Answer the following questions in 2-3 sentences based on the information provided in the case document.
1. Who were the primary parties involved in this case, and what were their roles?
2. What specific event and action by the Respondent prompted the Petitioner to file his initial petition?
3. What was the Respondent’s primary argument at the November 17, 2017, hearing for why the Communications committee was not subject to the open meetings law?
4. What was the initial outcome of the case following the first hearing, as decided on December 7, 2017?
5. On what grounds did the Petitioner successfully file for a rehearing of the case?
6. How did the Petitioner, Gary W. Moselle, interpret the statutory phrase “regularly scheduled committee meetings”?
7. How did the Respondent, DMMA, interpret the same phrase, “regularly scheduled committee meetings”?
8. According to the document, what is the primary goal when construing a statute, and what is the first step in that process?
9. What was the significance of the policy statement in A.R.S. § 33-1804(F) regarding open meetings, and how did the judge rule on its applicability?
10. What was the final order issued by the Administrative Law Judge on May 10, 2018, and what was its legal effect on the parties?
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Answer Key
1. The primary parties were Petitioner Gary W. Moselle, a homeowner, and Respondent Desert Mountain Master Association (DMMA), an association of homeowners in Scottsdale, Arizona. Mr. Moselle filed a petition against the DMMA.
2. The Petitioner filed his petition after the Chair of the DMMA’s Communications Committee alleged that a scheduled meeting was “closed” and not subject to Arizona’s open meeting statute. The Petitioner was subsequently not allowed to attend the closed committee meeting held on September 6, 2017.
3. The Respondent argued that the Communications committee did not meet regularly and was therefore not subject to the open meetings law. To support this, they presented testimony that the committee had only met four times in 2016 and 2017.
4. Following the first hearing, the Administrative Law Judge issued a decision on December 7, 2017, in which the Petitioner’s petition was denied.
5. The Petitioner requested a rehearing based on what he cited as newly discovered material evidence, specifically an email sent by the Respondent after the first hearing concluded. He also argued the initial decision was contrary to law and that the Respondent may have misled the judge.
6. The Petitioner argued that “regularly scheduled” should be interpreted to mean scheduled in a normal or ordinary fashion. He contended that because the September 6, 2017, meeting was scheduled in this manner, it should have been open.
7. The Respondent argued that the phrase “regularly scheduled” meant meetings that occurred at regular intervals, such as on a specific day each month, quarterly, or annually. They contended that since the Communications committee met infrequently and without an established interval, its meetings were not “regularly scheduled.”
8. The primary goal when construing a statute is to ascertain the legislature’s intent. The first step is to look at the text of the statute itself and ascribe its plain meaning if the language is clear.
9. The policy statement in A.R.S. § 33-1804(F) declares that it is the state’s policy for all meetings of a planned community to be conducted openly. The judge ruled that this general policy statement does not override the specific provision in A.R.S. § 33-1804(A) that only “regularly scheduled” committee meetings must be open.
10. The final order, issued on May 10, 2018, was that the Petitioner’s petition is denied. As this order was the result of a rehearing, it was binding on the parties, with any further appeal requiring judicial review in the superior court.
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Essay Questions
The following questions are designed for longer, more analytical responses. Answers are not provided.
1. Analyze the competing interpretations of “regularly scheduled” as presented by the Petitioner and Respondent. Discuss which argument the Administrative Law Judge found more compelling and explain the legal reasoning provided in the decision.
2. Discuss the role and significance of Arizona Revised Statute (A.R.S.) § 33-1804(F) in this case. Explain how the Petitioner used this section to support his argument and why the Administrative Law Judge concluded it did not override the specific language in A.R.S. § 33-1804(A).
3. Trace the procedural history of the case from the initial petition filing on September 1, 2017, to the final order on May 10, 2018. Include key dates, events (hearings, decisions, requests), and the outcomes at each stage.
4. Evaluate the evidence presented by the Respondent regarding the meeting frequency of the DMMA Communication committee. How did this evidence support the Respondent’s legal argument and influence the final decision?
5. Based on the “Conclusions of Law” section, explain the standard of proof required in this proceeding (preponderance of the evidence) and the principles of statutory construction the judge applied to interpret the relevant statute.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official, in this case Tammy L. Eigenheer, who presides over hearings at the Office of Administrative Hearings and issues a decision on the matter.
A.R.S. § 33-1804
The specific Arizona Revised Statute at the center of the legal dispute. It mandates that meetings of a members’ association, its board of directors, and any “regularly scheduled committee meetings” must be open to all members of the association.
Cross-examination
A phase during the hearing where a party or their representative questions a witness from the opposing side. Petitioner Moselle underwent cross-examination during the April 20, 2018, rehearing.
Department
The Arizona Department of Real Estate, the state agency with which the Petitioner filed his initial petition and which has jurisdiction to hear disputes between homeowners and condominium owners associations.
An abbreviation for Desert Mountain Master Association, the Respondent in the case and the homeowners association for a planned community in Scottsdale, Arizona.
Open Meetings Law
The legal requirement, as outlined in A.R.S. § 33-1804, that certain meetings of a homeowners association must be open to all members, who must be permitted to attend and speak.
Petitioner
The party who initiates a legal action by filing a petition. In this case, the petitioner was homeowner Gary W. Moselle.
Preponderance of the Evidence
The burden of proof required in this proceeding. It is defined as “Evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”
Respondent
The party against whom a petition is filed. In this case, the respondent was the Desert Mountain Master Association (DMMA).
Statutory Construction
The process of interpreting and applying legislation. The judge noted that the primary goal is to ascertain legislative intent, first by looking at the plain language of the statute’s text.
Blog Post – 18F-H1817005-REL
Your HOA Can Legally Hold Secret Committee Meetings. Here’s How.
Most homeowners operate under a reasonable assumption: meetings that concern their community association should be open for them to attend. Transparency is a cornerstone of trust between residents and their HOA board. But what if some of those meetings, like committee meetings, could be held in private, entirely legally? The answer, revealed in a contentious Arizona case, lies in a two-word loophole that every homeowner should understand.
A legal case from Scottsdale, Arizona, Moselle vs. Desert Mountain Master Association, hinged on this very issue. It revealed a surprising and important nuance in the law, showing how specific wording can create exceptions to the general rule of open governance.
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1. The “Regularly Scheduled” Loophole That Allows for Closed Meetings
The central conflict of the case began when a homeowner, Gary Moselle, was barred from attending a Communications Committee meeting for his HOA, the Desert Mountain Master Association (DMMA). He filed a petition, arguing this action violated Arizona’s open meeting law for planned communities.
But the homeowner’s argument ran into a wall: the precise text of the law. The Administrative Law Judge’s ruling hinged on the wording of A.R.S. § 33-1804(A), which mandates openness for “any regularly scheduled committee meetings.” The judge found that the Communications Committee meeting was legally closed because it was not “regularly scheduled.”
Everything came down to the court’s interpretation of two words: “regularly scheduled.”
• The Homeowner’s Argument: Mr. Moselle contended that “regularly scheduled” simply meant “scheduled in a normal fashion.”
• The Court’s Conclusion: The HOA and the judge determined that the phrase means meetings that “occur at regular intervals,” such as monthly, quarterly, or annually.
The evidence supported the court’s conclusion. The DMMA Communications committee had only met four times in 2016 and 2017. This ad-hoc pattern was crucial evidence that the meetings were not “regularly scheduled” in the way the law required.
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2. Why a Law’s General Policy Doesn’t Always Overrule Its Specific Text
The petitioner argued that the law’s explicit policy statement, which strongly favors open meetings, should have been the guiding principle. He pointed to the text of A.R.S. § 33-1804(F):
It is the policy of this state as reflected in this section that all meetings of a planned community, whether meetings of the members’ association or meetings of the board of directors of the association, be conducted openly… and shall construe any provision of this section in favor of open meetings.
The judge’s conclusion illustrates a fundamental principle of legal interpretation: the specific almost always trumps the general. Despite the clear declaration of policy, the judge found that it did not override the more precise provision in the law. The general policy favoring open meetings could not change the fact that A.R.S. § 33-1804(A) explicitly limits the open meeting requirement to only “regularly scheduled” committee meetings.
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3. A Petitioner’s Own Words Undercut His Argument
The case took a surprising turn, however, when the petitioner himself handed the association its strongest piece of evidence. While trying to make a point about other committees within the DMMA, Mr. Moselle stated that five of them “meet at the request of the chair and they’re not regularly scheduled.”
This statement was a moment of legal irony that proved devastating to his case. The judge noted in the final decision that the petitioner’s own language aligned perfectly with the court’s ultimate interpretation. In a formal hearing, Mr. Moselle inadvertently defined the key term against his own interest, drawing a clear distinction between meetings called on an as-needed basis (“at the request of the chair”) and those that are “regularly scheduled.” This admission provided the exact plain-language interpretation the judge needed to resolve the ambiguity in the case at hand, significantly weakening the petitioner’s entire position.
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Conclusion: A Lesson in Legal Precision
The ultimate lesson from this case is that while homeowner transparency laws are powerful, their protections are defined by precise legal wording. Seemingly small details can have significant consequences. In this Arizona case, the distinction between ad-hoc meetings called as needed and those that occur at regular, predictable intervals was the deciding factor that allowed a committee meeting to be held behind closed doors.
This raises a critical question for homeowners and boards alike: Does this legal distinction provide necessary flexibility for informal committee work, or is it a loophole that ultimately undermines the spirit of open governance in our communities?
Case Participants
Petitioner Side
Gary W. Moselle(petitioner) Appeared on his own behalf; Chair of the Communications Committee
