Case Summary
| Case ID | 12F-H1213013-BFS |
|---|---|
| Agency | Department of Fire, Building, and Life Safety |
| Tribunal | Office of Administrative Hearings |
| Decision Date | 2013-04-15 |
| Administrative Law Judge | Brian Brendan Tully |
| Outcome | no |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Edward J. McConnell and Judith S. McConnell | Counsel | — |
|---|---|---|---|
| Respondent | Dew Mutual Expense Sharing Group | Counsel | — |
Alleged Violations
A.R.S. § 33-1803(D)
Outcome Summary
The ALJ dismissed the petition. The Petitioners failed to establish that they complied with the certified mail requirement of A.R.S. § 33-1803(C), which meant the HOA was not liable for a violation of § 33-1803(D). Additionally, the evidence showed Petitioners violated the CC&Rs and A.R.S. § 33-1221(2) by altering common elements without written permission.
Why this result: Failure to satisfy burden of proof regarding certified mail service; confirmation of unauthorized alteration of common elements.
Key Issues & Findings
Failure to provide statutory response to violation notice
Petitioners alleged the HOA violated A.R.S. § 33-1803(D) by delaying the denial of their shade structure request and failing to provide required information. The dispute arose after Petitioners installed a shade structure on common elements without prior written approval.
Orders: Petition dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
- A.R.S. § 33-1803(C)
- A.R.S. § 33-1803(D)
- A.R.S. § 33-1221(2)
- A.R.S. § 33-1252
Decision Documents
12F-H1213013-BFS Decision – 334072.pdf
12F-H1213013-BFS Decision – 339518.pdf
**Case Summary: McConnell v. Dew Mutual Expense Sharing Group**
**Case No. 12F-H1213013-BFS**
**Proceedings Overview**
This administrative hearing was held on March 26, 2013, before Administrative Law Judge Brian Brendan Tully at the Office of Administrative Hearings in Phoenix, Arizona. The dispute involved Petitioners Edward J. and Judith S. McConnell and the Respondent, Dew Mutual Expense Sharing Group, an unincorporated condominium association. The Petitioners bore the burden of proof by a preponderance of the evidence.
**Key Facts**
On September 12, 2012, the Petitioners requested Board authorization to install an Alumawood™ shade structure on the west side of their condominium. This request followed the significant trimming of a Palo Verde tree in the common elements, which had previously shaded their unit. The Board expressed misgivings on September 17, 2012, but did not formally deny the request until November 14, 2012. Without waiting for written approval, the Petitioners installed the structure in October 2012. The structure was erected on "common elements," which are defined to include land not conveyed with individual units and the exterior of the units.
**Main Issues and Arguments**
* **Petitioners’ Position:** The Petitioners argued that the Association violated A.R.S. § 33-1803(D) by delaying the denial of their request for over two months and failing to provide specific statutory information regarding the violation notice.
* **Respondent’s Position:** The Association contended that the Petitioners violated Section 2.04 of the Rules and Regulations and A.R.S. § 33-1221(2) by making exterior additions to common elements without prior written Board approval.
**Legal Findings**
The Administrative Law Judge ruled in favor of the Respondent regarding the alleged violations. The key legal points were:
1. **Unauthorized Alteration:** The evidence established that the Petitioners erected the structure on common elements without written permission, violating both Association Rule 2.04 and A.R.S. § 33-1221(2). Furthermore, they did not obtain a conveyance of the common elements from 80% of the membership as required by A.R.S. § 33-1252.
2. **Procedural Compliance:** The Judge rejected the Petitioners' claim regarding A.R.S. § 33-1803(D). The statute requires an association to respond within ten days only after receiving a member’s response via *certified mail*. As the Petitioners failed to prove they sent their response by certified mail, the Association was not found in violation of the statutory timeline.
**Outcome and Final Decision**
The Administrative Law Judge recommended that the Petition be dismissed because the Petitioners failed to sustain their burden of proof. Although the Respondent requested an order requiring the removal of the shade structure, the Judge denied this request because the Association had not filed its own petition seeking such relief.
The decision was certified as the final administrative decision of the Department of Fire, Building, and Life Safety on May 21, 2013, after the Department took no action to reject or modify the ALJ’s recommendation within the statutory timeframe.
Case Participants
Petitioner Side
- Edward J. McConnell (Petitioner)
Member of Respondent association - Judith S. McConnell (Petitioner)
Member of Respondent association
Respondent Side
- Kenn MacIntosh (authorized representative)
Dew Mutual Expense Sharing Group
Spelled 'Ken Macintosh' in mailing list - Ronald Wayne McIntyre (board member)
Dew Mutual Expense Sharing Group
Received written request from Petitioners - Jan Mayfield (Secretary)
Dew Mutual Expense Sharing Group
Listed as 'Dew Condo Group Secretary' on mailing list
Neutral Parties
- Brian Brendan Tully (ALJ)
Office of Administrative Hearings - Cliff J. Vanell (OAH Director)
Office of Administrative Hearings
Certified the ALJ decision - Gene Palma (Agency Director)
Department of Fire, Building, and Life Safety
Received copy of decision - Joni Cage (Agency Staff)
Department of Fire, Building, and Life Safety
c/o for Gene Palma on mailing list
