Case Summary
| Case ID | 18F-H1818042-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2018-06-25 |
| Administrative Law Judge | Diane Mihalsky |
| Outcome | The ALJ granted the petitioner's request, finding that the HOA violated A.R.S. § 33-1813 by allowing the president to call a special meeting for board member recall without the required petition signed by homeowners. The HOA was ordered to reinstate the two removed board members and refund the petitioner's filing fee. |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Thomas J. Van Dan Elzen | Counsel | — |
|---|---|---|---|
| Respondent | Carter Ranch Homeowners Association | Counsel | Chad M. Gallacher, Esq. |
Alleged Violations
A.R.S. § 33-1813
Outcome Summary
The ALJ granted the petitioner's request, finding that the HOA violated A.R.S. § 33-1813 by allowing the president to call a special meeting for board member recall without the required petition signed by homeowners. The HOA was ordered to reinstate the two removed board members and refund the petitioner's filing fee.
Key Issues & Findings
Removal of board member; special meeting
Petitioner alleged the HOA violated A.R.S. § 33-1813 when the president called a special meeting to recall three recently elected Board members, arguing that the statute requires a petition signed by homeowners. Respondent argued that A.R.S. § 33-1804 procedures could also be used. The ALJ ruled that A.R.S. § 33-1813, as the specific statute regarding removal, requires a petition.
Orders: Petitioner’s petition is granted. Respondent shall reinstate Board members Steve Brownell and Trish Brownell and reimburse the $500.00 single-issue filing fee.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
- A.R.S. § 33-1813
- A.R.S. § 33-1804
Analytics Highlights
- A.R.S. § 33-1813
- A.R.S. § 33-1804
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Video Overview
Audio Overview
Decision Documents
18F-H1818042-REL Decision – 642530.pdf
18F-H1818042-REL Decision – 642530.pdf
Briefing Document: Van Dan Elzen v. Carter Ranch Homeowners Association (Case No. 18F-H1818042-REL)
Executive Summary
This document synthesizes the findings and decision in the case of Thomas J. Van Dan Elzen versus the Carter Ranch Homeowners Association (HOA), heard by the Arizona Office of Administrative Hearings. The central dispute concerned the legality of a special meeting called by the HOA Board President to recall three recently elected board members. The petitioner argued this action violated Arizona Revised Statute (A.R.S.) § 33-1813, which requires such a recall to be initiated by a petition from homeowners. The HOA contended that the president had the authority to call the meeting under the broader powers granted in A.R.S. § 33-1804.
The Administrative Law Judge concluded that when a specific statute and a general statute conflict, the specific statute controls. A.R.S. § 33-1813 specifically governs the removal of board members and mandates a homeowner petition process. Therefore, the president’s unilateral call for a recall election was improper. The judge granted the petitioner’s request, ordering the HOA to reinstate the two board members who were removed and to reimburse the petitioner’s $500.00 filing fee.
Background and Procedural History
The case involves a dispute within the Carter Ranch development, a 253-lot community in Coolidge, Arizona.
• Petitioner: Thomas J. Van Dan Elzen, a homeowner and member of the Carter Ranch HOA.
• Respondent: Carter Ranch Homeowners Association.
• Petition: On or about April 5, 2018, Van Dan Elzen filed a petition with the Arizona Department of Real Estate. He alleged the HOA violated A.R.S. § 33-1813 when its president, Lance Van Horne, called a special meeting to recall three newly elected board members.
• Hearing: The matter was referred to the Office of Administrative Hearings for an evidentiary hearing, which took place on June 20, 2018, before Administrative Law Judge Diane Mihalsky.
The Contested Elections
The dispute originated from a contentious board election process marked by accusations of misconduct, culminating in a recall election that was later found to be procedurally invalid.
March 20, 2018 Board Election
An initial annual meeting on February 20, 2018, failed to achieve the required quorum of 26 ballots. A second meeting was scheduled for March 20, 2018, for which eight candidates ran for five open board positions.
• Allegations of Misconduct: Prior to the meeting, Community Manager Mary Chaira received reports that three candidates—Roxanne Gould, Steve Brownell, and Trish Brownell—were going door-to-door “disseminating allegedly false information about Respondent’s finances, and harvesting ballots.”
• Meeting Conduct: At the March 20 meeting, a quorum of 47 homeowners was present. Board President Lance Van Horne addressed the allegations of false information. However, homeowners who may have filled out ballots based on this information were not permitted to withdraw them. The meeting was described by Ms. Chaira as “unruly and stressful.”
The election results for the top six candidates were as follows:
Candidate
Number of Votes
Outcome
Roxanne Gould
Elected
Steve Brownell
Elected
Trish Brownell
Elected
Lance Van Horne
Elected
Steve F.
Tie for 5th position
Tie for 5th position
April 24, 2018 Recall Election
Believing the March 20 election outcome was “compromised” by the alleged dissemination of false information and ballot harvesting, President Van Horne called a special meeting for April 24, 2018, to hold a recall election for the three newly elected members: Roxanne Gould, Steve Brownell, and Trish Brownell.
A quorum of 52 homeowners returned ballots for the recall. The results were:
Board Member
Votes for Recall
Votes against Recall
Outcome
Roxanne Gould
Remained on Board
Steve Brownell
Removed from Board
Trish Brownell
Removed from Board
Following the recall, other members were elected to fill the vacant board positions.
Central Legal Issue: Statutory Interpretation
The case presented a pure legal question of statutory interpretation, as the facts of what occurred were not in dispute. The core issue was which Arizona statute governs the process for recalling an HOA board member.
Competing Legal Positions
• Petitioner’s Argument: The recall election was invalid because it violated A.R.S. § 33-1813. This statute, titled “Removal of board member; special meeting,” explicitly states that a recall process is initiated upon the board’s receipt of a petition signed by a specified number or percentage of homeowners. The president’s unilateral action did not meet this requirement.
• Respondent’s Argument: The HOA argued that A.R.S. § 33-1813 was not the exclusive procedure. It claimed that the president could also call such a meeting under the authority of A.R.S. § 33-1804, a more general statute governing meetings, which states that “Special meetings of the members’ association may be called by the president.”
Statutory Analysis by the Court
The Administrative Law Judge highlighted the direct conflict between the two statutes on the subject of board member removal.
Feature
A.R.S. § 33-1813 (Specific Statute)
A.R.S. § 33-1804(B) (General Statute)
Meeting Initiation
By homeowner petition only.
By the president, a board majority, or homeowner petition.
Petition Requirement
For HOAs ≤ 1,000 members: petition signed by at least 100 members or 25% of votes, whichever is less.
Petition signed by at least 25% of votes (or lower if specified in bylaws).
Meeting Notice
Within 30 days after receipt of the petition.
Between 10 and 50 days in advance of the meeting.
The judge noted that A.R.S. § 33-1813 specifically overrides the petition requirements of A.R.S. § 33-1804(B), demonstrating legislative intent for it to be the controlling authority on this specific issue.
The Judge’s Legal Conclusion
The decision rested on the well-established legal principle that a specific statute governs over a general one when they are inconsistent. Citing case law, the judge reasoned:
“When provisions of a general statute are inconsistent with those of a special nature on the same subject, the special statute controls.”
Applying this canon of statutory construction, the judge concluded that A.R.S. § 33-1813 is the controlling authority for the removal of an HOA board member. Therefore, a valid recall process must be initiated by a homeowner petition as outlined in that statute. The president lacked the authority to call the April 24, 2018 recall meeting on his own initiative.
Final Order and Implications
Based on the legal conclusion that the Respondent violated A.R.S. § 33-1813, the Administrative Law Judge issued a recommended order with the following mandates:
1. Petition Granted: The petitioner’s petition is granted.
2. Board Member Reinstatement: The Carter Ranch HOA is required to reinstate Board members Steve Brownell and Trish Brownell.
3. Fee Reimbursement: The HOA must reimburse the petitioner, Thomas J. Van Dan Elzen, for his $500.00 single-issue filing fee.
This order is considered binding unless a party files a request for rehearing with the Commissioner of the Department of Real Estate within 30 days of the service of the order.
Study Guide: Van Dan Elzen v. Carter Ranch Homeowners Association
This study guide provides a detailed review of the Administrative Law Judge Decision in case number 18F-H1818042-REL, Thomas J. Van Dan Elzen v. Carter Ranch Homeowners Association. It covers the key facts, legal arguments, and final ruling of the case.
Short-Answer Quiz
Answer the following questions in 2-3 sentences each, based on the information provided in the case document.
1. Who were the primary parties involved in this case, and what were their respective roles?
2. What specific action by the Carter Ranch Homeowners Association (HOA) prompted the Petitioner to file a complaint with the Arizona Department of Real Estate?
3. What were the allegations made against candidates Roxanne Gould, Steve Brownell, and Trish Brownell prior to the March 20, 2018 election?
4. State the vote counts for the top three candidates who were elected to the Board of Directors on March 20, 2018.
5. What was the reason given by the Board’s president, Lance Van Horne, for calling a special recall election for April 24, 2018?
6. What were the specific outcomes for each of the three board members facing recall in the April 24, 2018 election?
7. Which two Arizona Revised Statutes (A.R.S.) were at the center of the legal dispute, and what general topics do they cover?
8. What was the HOA’s primary legal argument for why its president was permitted to call the special recall meeting?
9. What legal principle of statutory construction did the Administrative Law Judge use to resolve the conflict between the two statutes?
10. What two things was the Respondent, Carter Ranch HOA, ordered to do in the final ruling?
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Quiz Answer Key
1. The primary parties were Thomas J. Van Dan Elzen, the Petitioner, who is a homeowner and member of the association, and the Carter Ranch Homeowners Association, the Respondent. The Petitioner initiated the legal action against the HOA.
2. The Petitioner filed the complaint because the HOA’s president called a special meeting to hold a vote on recalling three recently elected members of the Board of Directors. The Petitioner alleged this action violated A.R.S. § 33-1813, which requires such a recall to be initiated by a petition signed by homeowners.
3. Prior to the March election, reports were made that Roxanne Gould, Steve Brownell, and Trish Brownell were going door-to-door disseminating allegedly false information about the HOA’s finances. They were also accused of “harvesting ballots” from members based on this information.
4. The top three candidates elected on March 20, 2018, were Roxanne Gould with 30 votes, Steve Brownell with 26 votes, and Trish Brownell with 25 votes.
5. Board president Lance Van Horne called the special recall election because he felt the election’s outcome was compromised. He believed the dissemination of allegedly false information and the harvesting of votes by the Brownells and Ms. Gould had tainted the results.
6. In the April 24 recall election, Roxanne Gould survived the recall with 27 votes against to 25 for. Steve Brownell and Trish Brownell were both removed from the board, with 27 votes for their recall and 25 against.
7. The statutes at the center of the dispute were A.R.S. § 33-1813 and A.R.S. § 33-1804. A.R.S. § 33-1813 specifically covers the “Removal of board member; special meeting,” while A.R.S. § 33-1804 is a more general statute concerning “Open meetings.”
8. The HOA argued that A.R.S. § 33-1813 was not the only procedure for calling a recall meeting. It contended that the procedures in the more general statute, A.R.S. § 33-1804, which allows the president to call a special meeting, could also be used.
9. The judge applied the well-established common law principle that when a general statute and a specific statute on the same subject are in conflict, the specific statute controls. Therefore, the specific procedures for recall in A.R.S. § 33-1813 took precedence over the general meeting rules in A.R.S. § 33-1804.
10. The Carter Ranch HOA was ordered to reinstate the removed board members, Steve Brownell and Trish Brownell. The HOA was also ordered to reimburse the Petitioner for his $500.00 single-issue filing fee.
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Essay Questions
1. Trace the complete timeline of events described in the decision, beginning with the failed meeting on February 20, 2018, and concluding with the judge’s final order. For each key date, describe the event that occurred, the people involved, and the outcome of the event.
2. Analyze the conflicting interpretations of Arizona state law presented by the Petitioner and the Respondent. Explain which specific clauses of A.R.S. § 33-1813 and A.R.S. § 33-1804 each party relied upon to justify their position regarding the legality of the April 24, 2018 recall meeting.
3. The decision states that the case presents a “pure legal issue of statutory interpretation.” Explain what this means and how it affects the burden of proof. Describe in detail the canons of statutory construction cited by the judge and how she applied them to rule in favor of the Petitioner.
4. Discuss the role of the allegations of misconduct (disseminating false information and harvesting ballots) against the newly elected board members. How did these allegations act as a catalyst for the recall election, and what was their ultimate relevance (or lack thereof) to the final legal conclusion reached by the Administrative Law Judge?
5. Based on the judge’s “Conclusions of Law,” explain the definitive legal procedure for an HOA in Arizona, with 1,000 or fewer members, to initiate the removal of a board member. Detail the petition requirements, signature thresholds, and meeting notice timelines as established by the controlling statute, A.R.S. § 33-1813.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent official who presides over administrative hearings, hears evidence, and makes legal decisions, in this case, Diane Mihalsky from the Office of Administrative Hearings.
A.R.S.
Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona.
Board of Directors
The governing body of the homeowners’ association, elected by the members.
Burden of Proof
The obligation on a party in a legal case to prove their allegations. In this matter, the Petitioner bore the burden of proof to establish the violation.
De Novo Review
A type of review where a court or judge decides the issues without reference to any legal conclusion or assumption made by the previous party in the case. This was applied because the issue was a pure matter of statutory interpretation.
Department
Refers to the Arizona Department of Real Estate, the state agency authorized to receive and decide on petitions from HOA members.
Evidentiary Standard
The level of proof required to convince the trier of fact. In this case, the standard was a “preponderance of the evidence.”
Homeowners’ Association (HOA)
The organization that governs the Carter Ranch development, of which all lot owners are members.
Office of Administrative Hearings
An independent state agency in Arizona where evidentiary hearings, like the one in this case, are conducted.
Petitioner
The party who initiates a legal action by filing a petition. In this case, it was homeowner Thomas J. Van Dan Elzen.
Preponderance of the Evidence
The standard of proof in which the trier of fact is convinced that a contention is more probably true than not.
Quorum
The minimum number of members of an association that must be present at a meeting for the proceedings of that meeting to be valid. In the March 20 election, the quorum was 47 homeowners.
Recall Election
A special vote held to determine whether to remove an elected official (in this case, board members) from office before the end of their term.
Respondent
The party against whom a petition is filed. In this case, it was the Carter Ranch Homeowners Association.
Special Meeting
A meeting of an association’s members called for a specific purpose outside of the regularly scheduled annual meetings. The April 24 recall vote was a special meeting.
Statutory Construction
The process of interpreting and applying legislation. The judge used common-law canons of statutory construction to resolve the conflict between the two A.R.S. sections.
Majority Rules? Not in This HOA: How One Homeowner Overturned a Recall Election on a Technicality
The Unruly World of Neighborhood Politics
In the world of Homeowners Associations, a majority vote is typically the final word. But for the Carter Ranch HOA, a 27-to-25 recall vote meant to oust two board members became the start of a legal battle, not the end. This case reveals a crucial lesson in community governance: when a board president’s unilateral action clashes with statutory procedure, the will of the majority can be rendered completely irrelevant.
A Democratic Vote Can Be Completely Ignored
On April 24, 2018, the Carter Ranch HOA held a special recall election targeting three recently elected board members: Roxanne Gould, Steve Brownell, and Trish Brownell. A quorum of 52 homeowners participated, and the vote was a split decision. Roxanne Gould survived the recall attempt, with 27 votes against her removal and 25 for it. However, Steve and Trish Brownell were successfully voted off the board by a clear majority of 27 to 25.
The twist came later, in a judge’s chambers. Despite the democratic outcome, an Administrative Law Judge ordered the HOA to reinstate the Brownells. This counter-intuitive decision wasn’t the result of voter fraud or a miscount. The entire election was nullified because of a critical procedural error made by the HOA president before a single ballot was cast.
An HOA President Can’t Unilaterally Oust Board Members
The conflict began after a heated board election on March 20, 2018. The board president at the time, Lance Van Horne, felt the election’s outcome was “compromised.” He believed three newly elected members had won their seats by disseminating “allegedly false information” and “harvesting of votes.”
In response, Mr. Van Horne took decisive action. Believing he was correcting a wrong, he personally called for a special meeting to hold a recall election. This unilateral action became the sole basis for the legal challenge that followed. While the president’s concerns about election integrity were the catalyst for the drama, the court’s subsequent decision would demonstrate that his motives were entirely irrelevant. The only thing that mattered was the procedure he followed—or in this case, failed to follow.
The “Specific Beats General” Rule Is King
The HOA’s legal defense rested on a general statute, A.R.S. § 33-1804, which grants an association’s president the power to call special meetings for various purposes. They argued this general power included the authority to call a recall meeting.
However, the homeowner who challenged the recall pointed to a different, more specific law. A.R.S. § 33-1813 is a statute written exclusively for the purpose of removing board members. This specific law dictates that a recall process can only be initiated upon receipt of a petition signed by a required number of homeowners. The president cannot simply decide to do it alone.
The judge’s decision hinged on a foundational principle of legal interpretation. As cited in the final order:
“When provisions of a general statute are inconsistent with those of a special nature on the same subject, the special statute controls.”
Because the HOA president initiated the recall without first receiving the required petition from the homeowners, he failed to follow the specific procedure mandated by law. As a result, the entire recall election was declared invalid from the start.
One Homeowner Can Successfully Challenge an Entire HOA
This entire case was set in motion not by a group of disgruntled residents, but by a single individual. Homeowner Thomas J. Van Dan Elzen filed a “single-issue petition” with the state, challenging the validity of the president’s action. His understanding of the specific rules governing board member removal proved to be the key that unraveled the HOA’s actions.
The final court order was a complete victory for the petitioner:
• His petition was granted.
• The Carter Ranch HOA was ordered to reinstate the two removed board members, Steve and Trish Brownell.
• The HOA was also ordered to reimburse the petitioner for his $500.00 filing fee.
This outcome serves as an empowering example of how a single member, armed with knowledge of the governing documents and statutes, can hold an association’s leadership accountable and ensure that proper procedures are followed.
Conclusion: Rules, Not Rulers
The Carter Ranch case is a powerful illustration that in community governance, established process is not a technicality—it is the bedrock of legitimacy. The board’s failure to adhere to the specific statute for recalls (A.R.S. § 33-1813) created a fatal procedural flaw that no amount of good intention or majority support could cure. This serves as a stark reminder for all HOA boards: power is derived from the meticulous application of rules, not the perceived authority of rulers. Ignoring this principle doesn’t just invalidate an action; it exposes the association to legal challenges, financial penalties, and a loss of credibility with the community it governs. Do you know the specific rules that govern your own community?
Case Participants
Petitioner Side
- Thomas J. Van Dan Elzen (petitioner)
Appeared on his own behalf
Respondent Side
- Chad M. Gallacher (attorney)
Maxwell & Morgan, P.C.
Represented Respondent - Mary Chaira (Community Manager)
Witness for Respondent - Lance Van Horne (Board President)
Called the special recall election which led to the petition,,
Neutral Parties
- Diane Mihalsky (ALJ)
- Judy Lowe (Commissioner)
Arizona Department of Real Estate
Received decision - Felicia Del Sol (staff)
Transmitted decision
Other Participants
- Roxanne Gould (board member)
Elected board member; subject of recall attempt,, - Steve Brownell (board member)
Elected board member; removed by recall, reinstated by recommended order,,, - Trish Brownell (board member)
Elected board member; removed by recall, reinstated by recommended order,,, - Steve F. (candidate)
Candidate in board election - Dave (candidate)
Candidate in board election