Case Summary
| Case ID | 23F-H020-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2023-02-17 |
| Administrative Law Judge | Adam D. Stone |
| Outcome | total |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $500.00 |
Parties & Counsel
| Petitioner | Daniel Mayer | Counsel | — |
|---|---|---|---|
| Respondent | Scottsdale North Homeowners Association, Inc. | Counsel | — |
Alleged Violations
A.R.S. § 33-1812
Outcome Summary
The Petitioner was deemed the prevailing party after establishing that the Respondent HOA violated A.R.S. § 33-1812 by improperly combining two separate expenditure proposals (roadway preservation and gate replacement) into a single vote on a ballot, failing to provide an opportunity to vote on each action separately. Respondent was ordered to refund the $500.00 filing fee and pay a $500.00 civil penalty.
Key Issues & Findings
Combining two separate proposed actions into a single vote action on a ballot.
The Respondent HOA combined two separate proposed expenditures ($30,000 total for roadway asset preservation and common area gate replacement) into one vote on a ballot sent to homeowners, violating statutory requirements that each proposed action must be voted upon separately.
Orders: Respondent must abide by A.R.S. § 33-1812; Respondent must refund the Petitioner's $500.00 filing fee; Respondent must pay a $500.00 civil penalty to the Department of Real Estate.
Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $500.00
Disposition: petitioner_win
- A.R.S. § 33-1812
- A.R.S. § 10-3708
- A.R.S. § 33-1812(A)(1)
Analytics Highlights
- A.R.S. § 33-1812
- A.R.S. § 10-3708
- A.R.S. § 32-2199
- A.R.S. § 32-2199.02
- A.R.S. § 41-1092.07
- A.R.S. § 41-1092.09
- A.A.C. R2-19-119
Video Overview
Audio Overview
https://open.spotify.com/episode/4jD4DBnKBI57WggSZKqOKg
Decision Documents
23F-H020-REL Decision – 1031122.pdf
23F-H020-REL Decision – 1038504.pdf
Questions
Question
Can my HOA combine multiple capital improvement projects into a single 'Yes' or 'No' vote?
Short Answer
No. The HOA must allow homeowners to vote for or against each proposed action separately.
Detailed Answer
Even if the projects are related or presented in the same letter, the ballot itself must provide an opportunity to vote on each specific expenditure or project individually. Combining them into one vote violates Arizona statutes.
Alj Quote
Thus, the tribunal finds the ballot improper because it did not contain the opportunity to vote on each separate proposal.
Legal Basis
A.R.S. § 33-1812(A)(1)-(2)
Topic Tags
- voting
- ballots
- assessments
Question
If the HOA conducts a vote by mail or email rather than at a live meeting, do they still have to list voting items separately?
Short Answer
Yes. The requirement to list each proposed action separately applies to absentee ballots and written ballots used without a meeting.
Detailed Answer
The ALJ rejected the argument that voting requirements only apply to in-person meetings. Statutes governing both planned communities and nonprofit corporations require that written ballots set forth each proposed action.
Alj Quote
According to that statute, the ballots still must set for each action and provide an opportunity to vote for or against each action. … Therefore, this ballot runs afoul of A.R.S. § 33-1812.
Legal Basis
A.R.S. § 33-1812; A.R.S. § 10-3708
Topic Tags
- absentee ballots
- voting
- mail-in voting
Question
Can the Administrative Law Judge force the HOA to undo a project (like a road repair) if the vote was illegal?
Short Answer
Generally, no. The ALJ lacks the statutory authority to order projects rescinded once completed.
Detailed Answer
While the ALJ can determine that a violation occurred and levy penalties, they cannot order the association to 'un-do' the physical work or rescind the project.
Alj Quote
The Administrative Law Judge does not have the authority under the A.R.S. § 32-2199.02 to order the projects rescinded…
Legal Basis
A.R.S. § 32-2199.02
Topic Tags
- remedies
- powers of ALJ
- construction
Question
What is the standard of proof for a homeowner suing their HOA in an administrative hearing?
Short Answer
Preponderance of the evidence.
Detailed Answer
The homeowner (Petitioner) must prove that their contention is 'more probably true than not.'
Alj Quote
Petitioner bears the burden of proof to establish that Respondent committed the alleged violations by a preponderance of the evidence.
Legal Basis
A.R.S. § 41-1092.07(G)(2)
Topic Tags
- legal standards
- burden of proof
- evidence
Question
Can the HOA claim that their specific bylaws or CC&Rs override state laws regarding ballot formats?
Short Answer
No. The relevant state statute explicitly overrides community documents regarding absentee ballot requirements.
Detailed Answer
The statute begins with 'Notwithstanding any provision in the community documents,' meaning the state law requirements for ballots take precedence over the HOA's internal rules.
Alj Quote
A.R.S. § 33-1812 provides… 'Notwithstanding any provision in the community documents… any action taken… shall comply with all of the following…'
Legal Basis
A.R.S. § 33-1812(A)
Topic Tags
- governing documents
- statutory interpretation
- supremacy of law
Question
If I win my case against the HOA, can I get my filing fee back?
Short Answer
Yes. The ALJ can order the HOA to reimburse the homeowner for the filing fee.
Detailed Answer
In this decision, the HOA was ordered to pay the $500 filing fee directly to the Petitioner.
Alj Quote
IT IS FURTHER ORDERED that Respondent pay Petitioner his filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.
Legal Basis
Order of the ALJ
Topic Tags
- remedies
- fees
- penalties
Question
Does a majority vote of the homeowners cure a defective ballot?
Short Answer
No. Even if the vast majority of homeowners approved the spending, the ballot can still be ruled a violation.
Detailed Answer
The ALJ noted that although most homeowners approved the proposal, the violation still stood because allowing such ballots would leave 'virtually no remedy' for future procedural violations.
Alj Quote
In this case, although the vast majority of homeowners approved the proposals, the Administrative Law Judge is concerned that this type of ballot could be used in the future, leaving virtually no remedy.
Legal Basis
A.R.S. § 33-1812
Topic Tags
- voting results
- procedural violations
- compliance
Case
- Docket No
- 23F-H020-REL
- Case Title
- Daniel Mayer vs Scottsdale North Homeowners Association, Inc.
- Decision Date
- 2023-02-17
- Alj Name
- Adam D. Stone
- Tribunal
- OAH
- Agency
- ADRE
Questions
Question
Can my HOA combine multiple capital improvement projects into a single 'Yes' or 'No' vote?
Short Answer
No. The HOA must allow homeowners to vote for or against each proposed action separately.
Detailed Answer
Even if the projects are related or presented in the same letter, the ballot itself must provide an opportunity to vote on each specific expenditure or project individually. Combining them into one vote violates Arizona statutes.
Alj Quote
Thus, the tribunal finds the ballot improper because it did not contain the opportunity to vote on each separate proposal.
Legal Basis
A.R.S. § 33-1812(A)(1)-(2)
Topic Tags
- voting
- ballots
- assessments
Question
If the HOA conducts a vote by mail or email rather than at a live meeting, do they still have to list voting items separately?
Short Answer
Yes. The requirement to list each proposed action separately applies to absentee ballots and written ballots used without a meeting.
Detailed Answer
The ALJ rejected the argument that voting requirements only apply to in-person meetings. Statutes governing both planned communities and nonprofit corporations require that written ballots set forth each proposed action.
Alj Quote
According to that statute, the ballots still must set for each action and provide an opportunity to vote for or against each action. … Therefore, this ballot runs afoul of A.R.S. § 33-1812.
Legal Basis
A.R.S. § 33-1812; A.R.S. § 10-3708
Topic Tags
- absentee ballots
- voting
- mail-in voting
Question
Can the Administrative Law Judge force the HOA to undo a project (like a road repair) if the vote was illegal?
Short Answer
Generally, no. The ALJ lacks the statutory authority to order projects rescinded once completed.
Detailed Answer
While the ALJ can determine that a violation occurred and levy penalties, they cannot order the association to 'un-do' the physical work or rescind the project.
Alj Quote
The Administrative Law Judge does not have the authority under the A.R.S. § 32-2199.02 to order the projects rescinded…
Legal Basis
A.R.S. § 32-2199.02
Topic Tags
- remedies
- powers of ALJ
- construction
Question
What is the standard of proof for a homeowner suing their HOA in an administrative hearing?
Short Answer
Preponderance of the evidence.
Detailed Answer
The homeowner (Petitioner) must prove that their contention is 'more probably true than not.'
Alj Quote
Petitioner bears the burden of proof to establish that Respondent committed the alleged violations by a preponderance of the evidence.
Legal Basis
A.R.S. § 41-1092.07(G)(2)
Topic Tags
- legal standards
- burden of proof
- evidence
Question
Can the HOA claim that their specific bylaws or CC&Rs override state laws regarding ballot formats?
Short Answer
No. The relevant state statute explicitly overrides community documents regarding absentee ballot requirements.
Detailed Answer
The statute begins with 'Notwithstanding any provision in the community documents,' meaning the state law requirements for ballots take precedence over the HOA's internal rules.
Alj Quote
A.R.S. § 33-1812 provides… 'Notwithstanding any provision in the community documents… any action taken… shall comply with all of the following…'
Legal Basis
A.R.S. § 33-1812(A)
Topic Tags
- governing documents
- statutory interpretation
- supremacy of law
Question
If I win my case against the HOA, can I get my filing fee back?
Short Answer
Yes. The ALJ can order the HOA to reimburse the homeowner for the filing fee.
Detailed Answer
In this decision, the HOA was ordered to pay the $500 filing fee directly to the Petitioner.
Alj Quote
IT IS FURTHER ORDERED that Respondent pay Petitioner his filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.
Legal Basis
Order of the ALJ
Topic Tags
- remedies
- fees
- penalties
Question
Does a majority vote of the homeowners cure a defective ballot?
Short Answer
No. Even if the vast majority of homeowners approved the spending, the ballot can still be ruled a violation.
Detailed Answer
The ALJ noted that although most homeowners approved the proposal, the violation still stood because allowing such ballots would leave 'virtually no remedy' for future procedural violations.
Alj Quote
In this case, although the vast majority of homeowners approved the proposals, the Administrative Law Judge is concerned that this type of ballot could be used in the future, leaving virtually no remedy.
Legal Basis
A.R.S. § 33-1812
Topic Tags
- voting results
- procedural violations
- compliance
Case
- Docket No
- 23F-H020-REL
- Case Title
- Daniel Mayer vs Scottsdale North Homeowners Association, Inc.
- Decision Date
- 2023-02-17
- Alj Name
- Adam D. Stone
- Tribunal
- OAH
- Agency
- ADRE
Case Participants
Petitioner Side
- Daniel Mayer (petitioner)
Appeared on his own behalf - Mr. D'Angelo (witness)
Petitioner's husband
Respondent Side
- Sandy Chambers (board president)
Scottsdale North Homeowners Association, Inc.
Appeared on behalf of Respondent; also referred to as 'Andrew Chambers' and 'Miss Chambers' in the transcript
Neutral Parties
- Adam D. Stone (ALJ)
OAH - Miranda (OAH staff)
OAH
Front desk staff mentioned by ALJ - James Knupp (commissioner)
ADRE
Acting Commissioner listed on initial transmittal - Susan Nicolson (commissioner)
ADRE - AHansen (ADRE staff)
ADRE
Transmittal recipient - vnunez (ADRE staff)
ADRE
Transmittal recipient - labril (ADRE staff)
ADRE
Transmittal recipient - djones (ADRE staff)
ADRE
Transmittal recipient
Other Participants
- jzipprich (property manager)
Desert Management
Email contact for Respondent HOA
