The petition was dismissed because the Petitioner failed to demonstrate a violation by the Association, conceding that the Association was not in violation of the cited CC&R section.
Why this result: Petitioner acknowledged the Association was not in violation of CC&R section 2.7, the single issue raised in the petition.
Key Issues & Findings
Alleged violation of CC&R section 2.7 by the Association (later asserted as estoppel regarding enforcement)
Petitioner alleged the Respondent Association violated CC&R section 2.7. At the hearing, Petitioner acknowledged the Association was not actually in violation of section 2.7, but argued the Association was estopped from enforcing the provision requiring a six-foot gate for RV storage. Petitioner sought invalidation of outstanding fines.
Orders: Don France's petition is dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
ARIZ. REV. STAT. § 32-2199.02(A)
ARIZ. REV. STAT. § 41-1092.07(F)(6)
ARIZ. REV. STAT. section 32-2199.02(B)
ARIZ. REV. STAT. section 32-2199.04
ARIZ. REV. STAT. section 41-1092.09
Analytics Highlights
Topics: CC&R, RV storage, Estoppel, Fines
Additional Citations:
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
ARIZ. REV. STAT. § 32-2199.02(A)
ARIZ. REV. STAT. § 41-1092.07(F)(6)
ARIZ. REV. STAT. section 32-2199.02(B)
ARIZ. REV. STAT. section 32-2199.04
ARIZ. REV. STAT. section 41-1092.09
Video Overview
Audio Overview
Decision Documents
20F-H2020056-REL Decision – 823714.pdf
Uploaded 2026-01-23T17:32:50 (96.1 KB)
Briefing Doc – 20F-H2020056-REL
Administrative Hearing Briefing: France v. Mesa East Property Owners Association
Executive Summary
This document provides a detailed analysis of the administrative hearing decision in case number 20F-H2020056-REL, involving petitioner Don France and respondent Mesa East Property Owners Association (the “Association”). The core of the dispute was the Association’s enforcement of its Covenants, Conditions, and Restrictions (CC&Rs), specifically section 2.7, which requires a six-foot-high gate for Recreational Vehicles (RVs) stored on a property.
The petitioner, Mr. France, was fined by the Association in 2019 for not having the required gate on an RV structure that the Association itself had approved in 2014. Mr. France initially filed a petition alleging the Association was in violation of its own CC&Rs. However, at the September 1, 2020 hearing, he conceded this was not the case and instead argued the Association was “estopped”—or legally prevented—from enforcing the rule due to its prior approval.
The Administrative Law Judge ultimately dismissed Mr. France’s petition on procedural grounds. The judge determined that since Mr. France acknowledged his petition’s central claim was incorrect, he had failed to meet his burden of proof. The new arguments concerning estoppel and the legality of the fines were deemed not properly before the tribunal because they were not included in the original petition. The decision underscores the critical importance of aligning claims made in a formal petition with the arguments presented at a hearing.
Case Overview
Case Number
No. 20F-H2020056-REL
In the Office of Administrative Hearings
Petitioner
Don France
Respondent
Mesa East Property Owners Association
Respondent’s Counsel
B. Austin Bailio, Esq.
Administrative Law Judge
Thomas Shedden
Hearing Date
September 1, 2020
Decision Date
September 21, 2020
The central issue of the case revolves around the enforcement of CC&R section 2.7, which mandates that RVs stored on a property must be screened behind a structure with a six-foot-high gate. This requirement is mirrored by a City of Mesa municipal code.
Chronology of Key Events
• 2014: Mr. France applies for and receives approval from the Association’s Architectural Review Committee (ARC) to build an RV port. In his application, he acknowledges he will abide by deed restrictions and City of Mesa codes.
• October 21, 2014: The Association issues its final approval for the structure, which is built without a gate.
• Circa 2018: Following threats of litigation from other residents over non-enforcement of the CC&Rs, the Association begins a new enforcement campaign for the six-foot gate rule. The City of Mesa denies the Association’s request to “grandfather in” non-compliant homes.
• 2019: The deadline for residents to come into compliance passes.
• March 11, 2019: The Association issues a Notice of Violation (NOV) to Mr. France for lacking the required gate.
• April 5, 2019: Through an attorney, Mr. France asserts that the Association is estopped from enforcing the rule due to its 2014 approval.
• May 15, 2019: The Association’s attorney rejects the estoppel claim and informs Mr. France’s attorney that fines of $500 per week will be assessed.
• May 31, 2019: The Association assesses a $500 fine against Mr. France, with additional fines assessed later.
• July 24, 2019: The City of Mesa issues its own NOV to Mr. France, citing a violation of city code 11-34-5(B), which also requires a six-foot screening fence for RVs.
• April 16, 2020: Mr. France files a petition alleging the Association is in violation of CC&R section 2.7.
• Prior to Hearing: To comply with the City of Mesa’s NOV, Mr. France installs a temporary gate at a cost of approximately $800.
• September 1, 2020: The administrative hearing is conducted.
Analysis of Arguments and Testimonies
Petitioner’s Position (Don France)
• Initial Petition: The formal petition, filed on April 16, 2020, was based on the single issue that the Mesa East Property Owners Association had violated its own CC&R section 2.7.
• Revised Argument at Hearing: During the hearing, Mr. France acknowledged that the Association was not, in fact, violating section 2.7. His argument shifted to a claim of estoppel, asserting that the Association could not enforce the rule against him because its own ARC had approved his gateless structure in 2014.
• Requested Relief: Mr. France asked the judge to rule that the Association could not require him to install a gate and to invalidate any outstanding fines levied against him.
• Supporting Testimony: Joann Van Kirk, the chairperson of the ARC in 2014, testified on Mr. France’s behalf. She stated that she had been informed by a past chair that no gate was required for structures like Mr. France’s, citing other properties that had RV shelters without gates. She also testified that she called the City of Mesa at the time and was told a gate was not required if the structure was attached to the house.
Respondent’s Position (Mesa East POA)
• Basis for Enforcement: The Association began strictly enforcing the gate requirement around 2018 after being threatened with lawsuits by other members for failing to enforce the CC&Rs.
• Enforcement Actions: After an unsuccessful attempt to have the City of Mesa grandfather in non-compliant properties, the Association notified members of the requirement via its newsletter and online, setting a compliance deadline of 2019. When Mr. France did not comply, the Association issued an NOV and subsequently began assessing fines.
• Legal Stance: The Association’s counsel formally rejected Mr. France’s estoppel argument in May 2019.
• Supporting Testimony: Donald Smith testified that at the time the NOV was issued to Mr. France, eleven other residents were also non-compliant. By the hearing date, six remained in violation, five of whom had agreed to comply. This testimony was intended to show that the enforcement was not targeted solely at Mr. France.
Independent Municipal Action
The City of Mesa’s regulations played a significant and independent role in the matter.
• City Code: The City of Mesa has its own ordinance, Code section 11-34-5(B), which requires RVs taller than six feet to be screened by a six-foot-tall fence.
• Notice of Violation: On July 24, 2019, the City issued its own NOV to Mr. France for violating this code.
• Consequence: This municipal enforcement action compelled Mr. France to install a temporary gate to avoid penalties from the City, regardless of the outcome of his dispute with the Property Owners Association.
Administrative Law Judge’s Decision and Rationale
Final Order: IT IS ORDERED that Don France’s petition is dismissed.
The judge’s decision to dismiss the case was based on a precise legal and procedural rationale, rather than the merits of the estoppel argument.
• Failure of the Core Claim: The judge noted that Mr. France’s petition was limited to the single claim that the Association had violated CC&R section 2.7. At the hearing, Mr. France himself admitted this was not the case. As the petitioner, Mr. France bore the burden of proof, and his own testimony demonstrated that the “preponderance of the evidence shows that there is no violation.”
• Jurisdictional Limitation: The new issues raised by Mr. France at the hearing—namely the estoppel argument and the legality of the fines—were declared “not properly before the tribunal.” The judge reasoned that these claims were not included in the original petition, a separate filing fee was not paid for a second issue, and the claims were not listed in the official Notice of Hearing. This procedural failure prevented the judge from ruling on the substance of these arguments.
Conclusion and Post-Decision Protocol
The dismissal of Mr. France’s petition represents a conclusive finding in favor of the respondent based on the specific claims filed. The decision illustrates that the scope of an administrative hearing is strictly defined by the issues raised in the initial petition.
According to the decision document, the order is binding on both parties unless a rehearing is granted. A request for a rehearing must be filed with the Commissioner of the Arizona Department of Real Estate within 30 days of the service of the order, pursuant to Arizona Revised Statutes.
Study Guide – 20F-H2020056-REL
Study Guide: France v. Mesa East Property Owners Association (No. 20F-H2020056-REL)
This guide provides a comprehensive review of the administrative hearing decision in the case between Don France (Petitioner) and the Mesa East Property Owners Association (Respondent), as decided by Administrative Law Judge Thomas Shedden.
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Short-Answer Questions
Instructions: Answer the following questions in two to three complete sentences, drawing all information directly from the provided legal decision.
1. Who are the primary parties in this case, and what was the single issue alleged in the Petitioner’s original petition filed on April 16, 2020?
2. According to CC&R section 2.7 and the City of Mesa’s code, what is the specific requirement for storing a recreational vehicle (RV) on a property?
3. What enforcement actions did the Mesa East Property Owners Association take against Don France in the spring of 2019?
4. What was Don France’s primary legal argument against the Association’s enforcement, which he revealed at the September 1, 2020 hearing?
5. What was the state of compliance on Mr. France’s property regarding the RV gate as of the hearing date, and what prompted this action?
6. According to the testimony of Donald Smith, what prompted the Association to begin enforcing the six-foot gate requirement around 2018?
7. What key information did Joann Van Kirk, the 2014 chairperson of the Architectural Review Committee, provide in her testimony?
8. How did the Petitioner’s argument at the hearing differ from the allegation in his initial petition, and why was this difference critical to the case’s outcome?
9. Why did the Administrative Law Judge decline to rule on the legality of the fines the Association had levied against Mr. France?
10. What was the ultimate order issued by the Administrative Law Judge, and what was the legal reasoning behind this decision?
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Answer Key for Short-Answer Questions
1. The primary parties are Don France, the Petitioner, and the Mesa East Property Owners Association, the Respondent. The single issue alleged in Mr. France’s petition was that the Association was in violation of its own CC&R section 2.7.
2. Both CC&R section 2.7 (the 1994 version) and the City of Mesa’s code (section 11-34-5(B)) require that RVs stored on a property must be screened behind a structure with a gate that is at least six feet high. The CC&Rs also specified the fence and gate must be tall enough to prevent a person from seeing the RV.
3. On March 11, 2019, the Association issued a Notice of Violation to Mr. France because his RV structure lacked a six-foot gate. Subsequently, on May 31, 2019, the Association fined him $500 for the same violation.
4. At the hearing, Mr. France’s primary argument was that the Association was “estopped” from finding him in violation of section 2.7. He argued this because the Association’s Architectural Review Committee had approved his RV structure in 2014 without the gate.
5. As of the hearing date, Mr. France had installed a temporary six-foot gate at a cost of about $800. This action was taken to comply with a Notice of Violation issued to him by the City of Mesa on July 24, 2019.
6. Donald Smith testified that around 2018, people were threatening to sue the Association if it did not enforce the CC&Rs. After meeting with the City of Mesa, which would not allow non-compliant homes to be grandfathered in, the Association began enforcing the gate requirement.
7. Joann Van Kirk testified that in 2014, she had learned from the past ARC chair that no gate was required because other owners had shelters without gates. She also testified that she called the City of Mesa and was told no gate was required if the structure was attached to the house.
8. While his petition alleged the Association had violated section 2.7, at the hearing Mr. France acknowledged this was not the case and argued instead that the Association was estopped from enforcing that section against him. This was critical because the judge could only rule on the single issue raised in the petition, which Mr. France conceded had no merit.
9. The judge declined to rule on the legality of the fines because the issue was not raised in Mr. France’s original petition. Therefore, it was not properly before the tribunal as a filing fee had not been paid for a second issue and it was not included in the Notice of Hearing.
10. The judge ordered that Don France’s petition be dismissed. The reasoning was that the petition was limited to the single issue of whether the Association had violated CC&R section 2.7, and Mr. France himself acknowledged at the hearing that no such violation by the Association had occurred.
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Essay Questions
Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate a comprehensive essay-format response for each, citing specific facts from the case decision to support your arguments.
1. Analyze the concept of estoppel as it applies to this case. Explain why Don France believed the Association was estopped from enforcing the gate requirement, referencing the 2014 approvals, and discuss why the Association disagreed and proceeded with enforcement actions.
2. Discuss the procedural limitations that shaped the outcome of this hearing. How did the specific wording of Mr. France’s initial petition and the rules governing administrative hearings ultimately prevent the judge from considering the central issues of estoppel and the validity of the fines?
3. Examine the conflict between a property owner’s reliance on past approvals and a Property Owners Association’s duty to enforce its CC&Rs. Use the testimony of Joann Van Kirk and Donald Smith to illustrate the differing perspectives and pressures that led to this dispute.
4. Trace the timeline of events from Mr. France’s 2014 application to the 2020 hearing. Detail the key actions taken by Mr. France, the Association’s Architectural Review Committee, the Association’s Board, and the City of Mesa, and explain how their interactions created the legal conflict.
5. Evaluate the standard of proof required in this case, the “preponderance of the evidence.” Although the case was dismissed on a procedural issue, discuss which party presented a more convincing case regarding the underlying dispute over the RV gate, and why.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official (Thomas Shedden in this case) who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions and orders.
Architectural Review Committee (ARC)
A committee within the Property Owners Association responsible for reviewing and approving applications for property improvements, such as Mr. France’s RV port in 2014.
Burden of Proof
The responsibility of a party in a legal case to prove their allegations. In this matter, Mr. France bore the burden of proof to show the Association violated its CC&Rs.
Covenants, Conditions, and Restrictions. These are the governing community documents that set rules for property use, such as section 2.7 which requires a six-foot gate for RV storage.
Conclusions of Law
The section of the judge’s decision that applies legal principles and statutes to the established facts of the case to reach a final ruling.
Estoppel
A legal principle asserted by Mr. France arguing that the Association should be prevented from enforcing a rule (the gate requirement) against him because of its prior action (approving his structure without a gate in 2014).
Findings of Fact
A formal, numbered list of facts in the judge’s decision that are established by the evidence and testimony presented during the hearing.
Notice of Violation (NOV)
A formal notice issued by the Association or the City of Mesa to a property owner informing them that they are in violation of a specific rule or code.
Petitioner
The party who initiates a legal action by filing a petition. In this case, Don France is the Petitioner.
Preponderance of the Evidence
The standard of proof required in this hearing. It is defined as evidence with “the most convincing force” that is sufficient to incline an impartial mind to one side of an issue over the other.
Respondent
The party against whom a petition is filed. In this case, the Mesa East Property Owners Association is the Respondent.
Blog Post – 20F-H2020056-REL
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20F-H2020056-REL
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The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings concerning the case of Don France versus the Mesa East Property Owners Association. The document details a dispute where Petitioner Don France alleged that the Respondent Association violated a community covenant regarding the storage of recreational vehicles (RVs), specifically CC&R section 2.7, which requires RVs to be stored behind a six-foot gate. Although Mr. France initially brought the petition alleging the Association violated the rule, he ultimately argued that the Association was estopped from enforcing the rule against him due to past approval of his RV structure without a gate. The decision includes a summary of the Findings of Fact related to Mr. France’s structure, the Association’s attempts to enforce the gate requirement against him and other residents, and the resulting fines he incurred before installing a gate to comply with a separate City of Mesa Notice of Violation. Ultimately, the Administrative Law Judge determined that Mr. France failed to meet the burden of proof to show the Association violated the CC&Rs, and his petition was dismissed because he acknowledged the Association was not actually in violation of section 2.7.
What were the legal and factual grounds for the case’s dismissal?
How did the Association’s past actions relate to the estoppel claim?
What was the core conflict between the homeowner, HOA, and city codes?
Based on 1 source
Case Participants
Petitioner Side
Don France(petitioner) Appeared on his own behalf and testified
Joann Van Kirk(witness) Testified for Petitioner; was chairperson of Architectural Review Committee ('ARC') in 2014
Respondent Side
B. Austin Bailio(HOA attorney) Maxwell & Morgan, P.C. Attorney for Respondent Mesa East Property Owners Association
Michael Estey(witness) Testified for Respondent
Donald Smith(witness) Testified for Respondent
Neutral Parties
Thomas Shedden(ALJ) Office of Administrative Hearings
Judy Lowe(commissioner) Arizona Department of Real Estate
The petition was dismissed because the Petitioner failed to demonstrate a violation by the Association, conceding that the Association was not in violation of the cited CC&R section.
Why this result: Petitioner acknowledged the Association was not in violation of CC&R section 2.7, the single issue raised in the petition.
Key Issues & Findings
Alleged violation of CC&R section 2.7 by the Association (later asserted as estoppel regarding enforcement)
Petitioner alleged the Respondent Association violated CC&R section 2.7. At the hearing, Petitioner acknowledged the Association was not actually in violation of section 2.7, but argued the Association was estopped from enforcing the provision requiring a six-foot gate for RV storage. Petitioner sought invalidation of outstanding fines.
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
19F-H1919071-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2020-01-30
Administrative Law Judge
Velva Moses-Thompson
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Thomas J. Van Dan Elzen
Counsel
—
Respondent
Carter Ranch Homeowners Association
Counsel
Augustus H. Shaw IV
Alleged Violations
A.R.S. § 33-1808
Outcome Summary
The Administrative Law Judge dismissed the Petitioner's claim, concluding that the Petitioner failed to prove the HOA violated A.R.S. § 33-1808 regarding flag display or that the HOA improperly adopted its rules; the Respondent was deemed the prevailing party,,.
Why this result: Petitioner failed to establish by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1808,, and failed to establish that the Flag Display Rule was improperly adopted or inconsistent with the CC&Rs.
Key Issues & Findings
Flag and Political Sign Display Restriction
Petitioner alleged the HOA violated A.R.S. § 33-1808 by prohibiting him from displaying a 'Trump 2020' flag in his front yard, asserting the HOA's Flag Display Rule was invalid because the CC&Rs did not specifically mention 'flag',,.
Orders: The petition is dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1808
A.A.C. R2-19-119
Analytics Highlights
Topics: Flag display, Political signs, HOA rules, Statutory violation
Administrative Hearing Brief: Van Dan Elzen v. Carter Ranch Homeowners Association
Executive Summary
This document synthesizes the findings and conclusions from two administrative law judge decisions concerning a dispute between homeowner Thomas J. Van Dan Elzen and the Carter Ranch Homeowners Association (HOA). The core conflict arose from Mr. Van Dan Elzen’s display of a “Trump 2020” flag, which the HOA deemed a violation of its “Flag Display Rule.” Mr. Van Dan Elzen petitioned the Arizona Department of Real Estate, alleging the HOA’s rule was invalid and violated Arizona Revised Statutes (A.R.S.) § 33-1808.
The Administrative Law Judge (ALJ) ultimately dismissed the petition, both in the initial hearing and upon a subsequent rehearing. The central findings were that the petitioner failed to meet his burden of proof to demonstrate that the HOA’s rule was inconsistent with its governing documents (CC&Rs) or that the HOA had violated the state statute. The HOA’s authority to create rules restricting the use of lots, granted by its CC&Rs, was upheld. The final decision affirmed the HOA as the prevailing party, concluding a legal challenge that centered on the distinction between statutorily protected flags and political displays.
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I. Case Background and Chronology
The dispute was adjudicated by the Office of Administrative Hearings, with Velva Moses-Thompson serving as the Administrative Law Judge. The case involved a petition filed by a homeowner against his HOA regarding flag display regulations.
Parties Involved:
• Petitioner: Thomas J. Van Dan Elzen (appeared on his own behalf)
• Respondent: Carter Ranch Homeowners Association (represented by Augustus H. Shaw IV, Esq.)
Key Events:
Date (2019-2020)
May 21, 2019
Carter Ranch HOA notifies Mr. Van Dan Elzen that his “Trump 2020” flag violates association rules.
June 14, 2019
Mr. Van Dan Elzen files a petition with the Arizona Department of Real Estate, alleging a violation of A.R.S. § 33-1808.
July 16, 2019
The Department of Real Estate issues a Notice of Hearing.
Sept. 9, 2019
The initial administrative hearing is held.
Sept. 30, 2019
The ALJ issues a decision dismissing the petitioner’s case.
Nov. 18, 2019
The Department of Real Estate issues an order for a rehearing.
Jan. 10, 2020
A rehearing is held.
Jan. 30, 2020
The ALJ issues a final decision on the rehearing, again dismissing the petition.
II. The Core Dispute and Competing Arguments
The central issue was the legality of the Carter Ranch HOA’s rule prohibiting Mr. Van Dan Elzen’s “Trump 2020” flag and the scope of the HOA’s authority to regulate such displays.
A. The Petitioner’s Position (Thomas J. Van Dan Elzen)
Mr. Van Dan Elzen’s challenge was based on the premise that the HOA’s “Flag Display Rule” was invalid because it was not explicitly supported by the language of the community’s Covenants, Conditions, and Restrictions (CC&Rs).
• Primary Argument: He asserted that because the CC&Rs do not specifically contain the word “flag,” any rule created by the HOA Board regulating flags is inconsistent with the CC&Rs and therefore unenforceable.
• Petition Allegation: In his formal petition, Mr. Van Dan Elzen stated the violation was “based on 33-1808 Flags and Sings [sic].” He further argued that the HOA’s rule referenced section 3.14 of the CC&Rs, which he claimed “ONLY defines SIGNS and has no reference to Flags whatsoever.”
B. The Respondent’s Position (Carter Ranch HOA)
The Carter Ranch HOA maintained that its “Flag Display Rule” was a valid exercise of the authority granted to its Board by the community’s governing documents.
• Basis of Authority: The HOA contended that it was authorized to adopt the rule under Article V, Section 5.3 of its CC&Rs.
• Defense of the Rule: The HOA argued that the Flag Display Rule was not inconsistent with the CC&Rs and was properly adopted.
• Argument for Dismissal: Carter Ranch asserted that the petition should be dismissed because the petitioner had not successfully alleged a violation of any statute or provision within the governing documents.
III. Governing Documents and Legal Framework
The case was decided based on an interpretation of both state law and the HOA’s internal governing documents.
A. Carter Ranch Homeowners Association Rules
• The “Flag Display Rule”: The association’s rules and regulations explicitly prohibit the flying of any flag other than the following:
◦ The American Flag
◦ Official or replica flags of the U.S. Army, Navy, Air Force, Marine Corps, or Coast Guard
◦ A POW/MIA flag
◦ The Arizona State flag
◦ An Arizona Indian Nations flag
◦ The Gadsden Flag
• CC&Rs, Article V, Section 5.3: This section grants the HOA Board broad rule-making authority. The text states, in relevant part:
B. Arizona Revised Statutes § 33-1808
This state statute places specific limitations on an HOA’s ability to prohibit certain flags and political signs.
• Section A – Protected Flags: The statute mandates that an HOA “shall not prohibit the outdoor display” of the exact list of flags enumerated in the Carter Ranch “Flag Display Rule” (American, military, POW/MIA, state, etc.). A “Trump 2020” flag is not included in this list of protected flags.
• Section C – Political Signs: The statute addresses political signs separately from flags.
◦ Definition: A “political sign” is defined as “a sign that attempts to influence the outcome of an election.”
◦ Regulation: An HOA may prohibit political signs “earlier than seventy-one days before the day of an election and later than three days after an election day.”
◦ Size/Number: An HOA may regulate the size and number of signs, provided the rules are no more restrictive than local ordinances. If no local ordinance exists, an HOA cannot limit the number of signs but can cap the maximum aggregate dimensions at nine square feet.
IV. Administrative Law Judge’s Conclusions and Final Order
Across both the initial hearing and the rehearing, the ALJ’s conclusions of law consistently favored the respondent HOA. The petitioner failed to meet the required legal standard to prove his case.
A. Burden of Proof
The ALJ established that the petitioner, Mr. Van Dan Elzen, bore the burden of proving by a “preponderance of the evidence” that the HOA had violated A.R.S. § 33-1808. A preponderance of the evidence means showing the fact sought to be proved is “more probable than not.”
B. Key Conclusions of Law
• Validity of the “Flag Display Rule”: The ALJ concluded that the petitioner “had not established that the Association improperly adopted the Flag Display Rule under its CC&Rs.” In the rehearing, this was stated as the petitioner having “not established that the Flag Display Rule was inconsistent with the CC&Rs.”
• No Statutory Violation: A critical conclusion in both decisions was that the petitioner “has not alleged that Carter Ranch violated A.R.S. § 33-1808.”
• Final Judgment: Based on these conclusions, the ALJ determined that Mr. Van Dan Elzen’s petition should be dismissed and that the Carter Ranch HOA should be deemed the prevailing party.
C. Final Order
• Initial Decision (September 30, 2019): “IT IS ORDERED that Petitioner Thomas J. Van Dan Elzen’s petition is dismissed.”
• Rehearing Decision (January 30, 2020): The order to dismiss was reaffirmed. The final notice specified that this order was binding on the parties and that any appeal must be filed for judicial review with the superior court within thirty-five days.
Study Guide – 19F-H1919071-REL-RHG
Study Guide: Van Dan Elzen v. Carter Ranch Homeowners Association
This study guide provides a comprehensive review of the administrative law case involving Thomas J. Van Dan Elzen and the Carter Ranch Homeowners Association, based on the legal decisions from September 2019 and January 2020. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms.
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Short-Answer Quiz
Instructions: Answer the following questions in 2-3 sentences each, based on the provided case documents.
1. Who were the Petitioner and the Respondent in this case, and what was the official case number?
2. What specific action by the Petitioner prompted the initial notice of violation from the homeowners association?
3. What was the Petitioner’s primary legal argument against the validity of the Association’s “Flag Display Rule”?
4. According to the Carter Ranch CC&Rs, what authority does the Board have to create rules and regulations?
5. What is the “preponderance of the evidence,” and which party had the burden of meeting this standard?
6. List at least five of the flags that are explicitly permitted for display under the Carter Ranch “Flag Display Rule.”
7. Summarize the key provisions of Arizona Revised Statute § 33-1808(C) regarding “political signs.”
8. What was the Administrative Law Judge’s conclusion regarding the Petitioner’s claim that the Association improperly adopted the Flag Display Rule?
9. What was the final outcome of the petition after both the initial hearing on September 9, 2019, and the rehearing on January 10, 2020?
10. Who was the Administrative Law Judge that presided over both hearings?
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Answer Key
1. The Petitioner was Thomas J. Van Dan Elzen, and the Respondent was the Carter Ranch Homeowners Association. The case number was 19F-H1919071-REL, with the rehearing designated as 19F-H1919071-REL-RHG.
2. The case was prompted by Mr. Van Dan Elzen displaying a “Trump 2020” flag on a flagpole in his front yard. On or about May 21, 2019, Carter Ranch notified him that this action violated the Association’s rules.
3. The Petitioner argued that the Flag Display Rule was invalid because the community’s Covenants, Conditions, and Restrictions (CC&Rs) do not specifically mention the word “flag.” He asserted that the Association’s rules and regulations can only be based on topics explicitly mentioned in the CC&Rs.
4. Article V, Section 5.3 of the CC&Rs grants the Board the authority to adopt, amend, and repeal rules pertaining to the management of common areas, minimum maintenance standards for lots, the health, safety, or welfare of residents, and restrictions on the use of lots.
5. “Preponderance of the evidence” is evidence that is more convincing and shows that the fact sought to be proved is more probable than not. The Petitioner, Mr. Van Dan Elzen, bore the burden of proving his case by this standard.
6. The Carter Ranch Flag Display Rule permits the display of the American Flag, an official replica of a U.S. military flag (Army, Navy, Air Force, Marine Corps, or Coast Guard), a POW/MIA flag, an Arizona Indian nations flag, the Arizona State flag, and the Gadsden Flag.
7. A.R.S. § 33-1808(C) states that an association cannot prohibit the display of political signs on a member’s property, but it can prohibit them earlier than 71 days before an election and later than 3 days after an election. An association may also regulate the size and number of signs to be no more restrictive than local ordinances, or to a maximum aggregate of nine square feet if no such ordinances exist.
8. The Administrative Law Judge concluded that the Petitioner had not established that the Association improperly adopted the Flag Display Rule under its CC&Rs. The judge found that the rule was not inconsistent with the CC&Rs.
9. In both instances, the Administrative Law Judge ordered that the Petitioner’s petition be dismissed. The Respondent, Carter Ranch Homeowners Association, was deemed the prevailing party in the matter.
10. The Administrative Law Judge for both the initial hearing and the rehearing was Velva Moses-Thompson.
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Suggested Essay Questions
Instructions: The following questions are designed to test a deeper, analytical understanding of the case. Formulate a comprehensive response for each.
1. Analyze the Petitioner’s legal strategy. Why did his argument that the CC&Rs do not explicitly mention the word “flag” ultimately fail to meet the “preponderance of the evidence” standard?
2. Explain the relationship between the Carter Ranch CC&Rs, the Association’s Rules and Regulations, and Arizona Revised Statute § 33-1808. How do these documents interact to govern what a resident can display on their property?
3. Discuss the concept of “burden of proof” in this case. How did the “preponderance of the evidence” standard apply to Thomas J. Van Dan Elzen’s petition, and why did the Administrative Law Judge conclude he did not meet it?
4. Could the “Trump 2020” flag have been considered a “political sign” under the definition provided in A.R.S. § 33-1808(C)? Based on the text, evaluate the potential arguments for and against this classification and how the statute’s time restrictions on display might have been relevant.
5. Examine the authority granted to the Carter Ranch HOA Board by Article V, Section 5.3 of its CC&Rs. How did the HOA use this section to justify its Flag Display Rule, and how did the Administrative Law Judge evaluate this justification?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The judge who presides over administrative hearings. In this case, the ALJ was Velva Moses-Thompson.
A.R.S. § 33-1808
The Arizona Revised Statute that, notwithstanding community documents, protects the right of homeowners to display certain flags (American, military, POW/MIA, state, etc.) and regulates how an association may restrict political signs.
Burden of Proof
The obligation of a party in a legal proceeding to provide evidence to prove their claim. In this case, the Petitioner had the burden of proof.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing legal documents that set up the guidelines for a planned community or homeowners association. In this case, Article V, Section 5.3 of the CC&Rs gave the Board authority to create rules.
Flag Display Rule
The specific Carter Ranch Association rule prohibiting any flag other than the American Flag, specific military flags, POW/MIA flag, Arizona Indian National flag, Arizona State flag, and the Gadsden Flag.
Petitioner
The party who files a petition to initiate a legal proceeding. In this case, the petitioner was Thomas J. Van Dan Elzen.
Political Sign
As defined in A.R.S. § 33-1808(C), “a sign that attempts to influence the outcome of an election, including supporting or opposing the recall of a public officer or supporting or opposing the circulation of a petition for a ballot measure, question or proposition or the recall of a public officer.”
Preponderance of the Evidence
The standard of proof required in this proceeding. Defined in the decision as “[e]vidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”
Rehearing
A second hearing of a case. In this matter, a rehearing was held on January 10, 2020, after the initial decision was made on September 30, 2019.
Respondent
The party against whom a petition is filed. In this case, the respondent was the Carter Ranch Homeowners Association.
Blog Post – 19F-H1919071-REL-RHG
Study Guide: Van Dan Elzen v. Carter Ranch Homeowners Association
This study guide provides a comprehensive review of the administrative law case involving Thomas J. Van Dan Elzen and the Carter Ranch Homeowners Association, based on the legal decisions from September 2019 and January 2020. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms.
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Short-Answer Quiz
Instructions: Answer the following questions in 2-3 sentences each, based on the provided case documents.
1. Who were the Petitioner and the Respondent in this case, and what was the official case number?
2. What specific action by the Petitioner prompted the initial notice of violation from the homeowners association?
3. What was the Petitioner’s primary legal argument against the validity of the Association’s “Flag Display Rule”?
4. According to the Carter Ranch CC&Rs, what authority does the Board have to create rules and regulations?
5. What is the “preponderance of the evidence,” and which party had the burden of meeting this standard?
6. List at least five of the flags that are explicitly permitted for display under the Carter Ranch “Flag Display Rule.”
7. Summarize the key provisions of Arizona Revised Statute § 33-1808(C) regarding “political signs.”
8. What was the Administrative Law Judge’s conclusion regarding the Petitioner’s claim that the Association improperly adopted the Flag Display Rule?
9. What was the final outcome of the petition after both the initial hearing on September 9, 2019, and the rehearing on January 10, 2020?
10. Who was the Administrative Law Judge that presided over both hearings?
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Answer Key
1. The Petitioner was Thomas J. Van Dan Elzen, and the Respondent was the Carter Ranch Homeowners Association. The case number was 19F-H1919071-REL, with the rehearing designated as 19F-H1919071-REL-RHG.
2. The case was prompted by Mr. Van Dan Elzen displaying a “Trump 2020” flag on a flagpole in his front yard. On or about May 21, 2019, Carter Ranch notified him that this action violated the Association’s rules.
3. The Petitioner argued that the Flag Display Rule was invalid because the community’s Covenants, Conditions, and Restrictions (CC&Rs) do not specifically mention the word “flag.” He asserted that the Association’s rules and regulations can only be based on topics explicitly mentioned in the CC&Rs.
4. Article V, Section 5.3 of the CC&Rs grants the Board the authority to adopt, amend, and repeal rules pertaining to the management of common areas, minimum maintenance standards for lots, the health, safety, or welfare of residents, and restrictions on the use of lots.
5. “Preponderance of the evidence” is evidence that is more convincing and shows that the fact sought to be proved is more probable than not. The Petitioner, Mr. Van Dan Elzen, bore the burden of proving his case by this standard.
6. The Carter Ranch Flag Display Rule permits the display of the American Flag, an official replica of a U.S. military flag (Army, Navy, Air Force, Marine Corps, or Coast Guard), a POW/MIA flag, an Arizona Indian nations flag, the Arizona State flag, and the Gadsden Flag.
7. A.R.S. § 33-1808(C) states that an association cannot prohibit the display of political signs on a member’s property, but it can prohibit them earlier than 71 days before an election and later than 3 days after an election. An association may also regulate the size and number of signs to be no more restrictive than local ordinances, or to a maximum aggregate of nine square feet if no such ordinances exist.
8. The Administrative Law Judge concluded that the Petitioner had not established that the Association improperly adopted the Flag Display Rule under its CC&Rs. The judge found that the rule was not inconsistent with the CC&Rs.
9. In both instances, the Administrative Law Judge ordered that the Petitioner’s petition be dismissed. The Respondent, Carter Ranch Homeowners Association, was deemed the prevailing party in the matter.
10. The Administrative Law Judge for both the initial hearing and the rehearing was Velva Moses-Thompson.
——————————————————————————–
Suggested Essay Questions
Instructions: The following questions are designed to test a deeper, analytical understanding of the case. Formulate a comprehensive response for each.
1. Analyze the Petitioner’s legal strategy. Why did his argument that the CC&Rs do not explicitly mention the word “flag” ultimately fail to meet the “preponderance of the evidence” standard?
2. Explain the relationship between the Carter Ranch CC&Rs, the Association’s Rules and Regulations, and Arizona Revised Statute § 33-1808. How do these documents interact to govern what a resident can display on their property?
3. Discuss the concept of “burden of proof” in this case. How did the “preponderance of the evidence” standard apply to Thomas J. Van Dan Elzen’s petition, and why did the Administrative Law Judge conclude he did not meet it?
4. Could the “Trump 2020” flag have been considered a “political sign” under the definition provided in A.R.S. § 33-1808(C)? Based on the text, evaluate the potential arguments for and against this classification and how the statute’s time restrictions on display might have been relevant.
5. Examine the authority granted to the Carter Ranch HOA Board by Article V, Section 5.3 of its CC&Rs. How did the HOA use this section to justify its Flag Display Rule, and how did the Administrative Law Judge evaluate this justification?
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The judge who presides over administrative hearings. In this case, the ALJ was Velva Moses-Thompson.
A.R.S. § 33-1808
The Arizona Revised Statute that, notwithstanding community documents, protects the right of homeowners to display certain flags (American, military, POW/MIA, state, etc.) and regulates how an association may restrict political signs.
Burden of Proof
The obligation of a party in a legal proceeding to provide evidence to prove their claim. In this case, the Petitioner had the burden of proof.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing legal documents that set up the guidelines for a planned community or homeowners association. In this case, Article V, Section 5.3 of the CC&Rs gave the Board authority to create rules.
Flag Display Rule
The specific Carter Ranch Association rule prohibiting any flag other than the American Flag, specific military flags, POW/MIA flag, Arizona Indian National flag, Arizona State flag, and the Gadsden Flag.
Petitioner
The party who files a petition to initiate a legal proceeding. In this case, the petitioner was Thomas J. Van Dan Elzen.
Political Sign
As defined in A.R.S. § 33-1808(C), “a sign that attempts to influence the outcome of an election, including supporting or opposing the recall of a public officer or supporting or opposing the circulation of a petition for a ballot measure, question or proposition or the recall of a public officer.”
Preponderance of the Evidence
The standard of proof required in this proceeding. Defined in the decision as “[e]vidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”
Rehearing
A second hearing of a case. In this matter, a rehearing was held on January 10, 2020, after the initial decision was made on September 30, 2019.
Respondent
The party against whom a petition is filed. In this case, the respondent was the Carter Ranch Homeowners Association.
Case Participants
Petitioner Side
Thomas J. Van Dan Elzen(petitioner)
Respondent Side
Augustus H. Shaw IV(HOA attorney) Shaw & Lines LLC
The ALJ found that the Respondents violated the CC&Rs by operating a business that created traffic and parking. The Respondents were ordered to cease business operations and pay a $500.00 civil penalty. The Petitioner's request for a refund of its filing fee was denied.
Why this result: Petitioner's request for refund of the filing fee was denied because they cited no authority showing that the refund was within the tribunal’s authority.
Key Issues & Findings
Violation of Residential Use covenant prohibiting traffic/parking generation by business
The Petitioner HOA alleged that the Respondents, co-owners of the unit, violated CC&Rs Article 3, section 3.1 by operating a payroll processing company out of the unit. The ALJ found that the business required two employees to drive to the unit daily, thereby creating traffic and parking, which clearly and unambiguously violates the CC&R provision prohibiting non-residential use that creates traffic or parking.
Orders: Respondents were ordered to cease business operations at the unit (720 E. North Lane, Unit 1) within thirty-five days to comply with CC&R Article 3, section 3.1, and pay a civil penalty of $500.00 to the Department of Real Estate within sixty days. The Petitioner's request for refund of the filing fee was denied.
Filing fee: $0.00, Fee refunded: No, Civil penalty: $500.00
Disposition: petitioner_win
Cited:
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
19F-H1919044-REL
Agency
ADRE
Tribunal
OAH
Decision Date
2019-05-07
Administrative Law Judge
Thomas Shedden
Outcome
partial
Filing Fees Refunded
$0.00
Civil Penalties
$500.00
Parties & Counsel
Petitioner
Pointe Tapatio Community Association
Counsel
Lauren Vie
Respondent
Lanye C. Wilkey and Devin E. Wilkey
Counsel
Joseph Velez
Alleged Violations
CC&R Article 3, section 3.1
Outcome Summary
The ALJ found that the Respondents violated the CC&Rs by operating a business that created traffic and parking. The Respondents were ordered to cease business operations and pay a $500.00 civil penalty. The Petitioner's request for a refund of its filing fee was denied.
Why this result: Petitioner's request for refund of the filing fee was denied because they cited no authority showing that the refund was within the tribunal’s authority.
Key Issues & Findings
Violation of Residential Use covenant prohibiting traffic/parking generation by business
The Petitioner HOA alleged that the Respondents, co-owners of the unit, violated CC&Rs Article 3, section 3.1 by operating a payroll processing company out of the unit. The ALJ found that the business required two employees to drive to the unit daily, thereby creating traffic and parking, which clearly and unambiguously violates the CC&R provision prohibiting non-residential use that creates traffic or parking.
Orders: Respondents were ordered to cease business operations at the unit (720 E. North Lane, Unit 1) within thirty-five days to comply with CC&R Article 3, section 3.1, and pay a civil penalty of $500.00 to the Department of Real Estate within sixty days. The Petitioner's request for refund of the filing fee was denied.
Filing fee: $0.00, Fee refunded: No, Civil penalty: $500.00
Disposition: petitioner_win
Cited:
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
The ALJ found that the Respondents violated the CC&Rs by operating a business that created traffic and parking. The Respondents were ordered to cease business operations and pay a $500.00 civil penalty. The Petitioner's request for a refund of its filing fee was denied.
Why this result: Petitioner's request for refund of the filing fee was denied because they cited no authority showing that the refund was within the tribunal’s authority.
Key Issues & Findings
Violation of Residential Use covenant prohibiting traffic/parking generation by business
The Petitioner HOA alleged that the Respondents, co-owners of the unit, violated CC&Rs Article 3, section 3.1 by operating a payroll processing company out of the unit. The ALJ found that the business required two employees to drive to the unit daily, thereby creating traffic and parking, which clearly and unambiguously violates the CC&R provision prohibiting non-residential use that creates traffic or parking.
Orders: Respondents were ordered to cease business operations at the unit (720 E. North Lane, Unit 1) within thirty-five days to comply with CC&R Article 3, section 3.1, and pay a civil penalty of $500.00 to the Department of Real Estate within sixty days. The Petitioner's request for refund of the filing fee was denied.
Filing fee: $0.00, Fee refunded: No, Civil penalty: $500.00
Disposition: petitioner_win
Cited:
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
The ALJ found that the Respondents violated the CC&Rs by operating a business that created traffic and parking. The Respondents were ordered to cease business operations and pay a $500.00 civil penalty. The Petitioner's request for a refund of its filing fee was denied.
Why this result: Petitioner's request for refund of the filing fee was denied because they cited no authority showing that the refund was within the tribunal’s authority.
Key Issues & Findings
Violation of Residential Use covenant prohibiting traffic/parking generation by business
The Petitioner HOA alleged that the Respondents, co-owners of the unit, violated CC&Rs Article 3, section 3.1 by operating a payroll processing company out of the unit. The ALJ found that the business required two employees to drive to the unit daily, thereby creating traffic and parking, which clearly and unambiguously violates the CC&R provision prohibiting non-residential use that creates traffic or parking.
Orders: Respondents were ordered to cease business operations at the unit (720 E. North Lane, Unit 1) within thirty-five days to comply with CC&R Article 3, section 3.1, and pay a civil penalty of $500.00 to the Department of Real Estate within sixty days. The Petitioner's request for refund of the filing fee was denied.
Filing fee: $0.00, Fee refunded: No, Civil penalty: $500.00
Disposition: petitioner_win
Cited:
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
The ALJ found that the Respondents violated the CC&Rs by operating a business that created traffic and parking. The Respondents were ordered to cease business operations and pay a $500.00 civil penalty. The Petitioner's request for a refund of its filing fee was denied.
Why this result: Petitioner's request for refund of the filing fee was denied because they cited no authority showing that the refund was within the tribunal’s authority.
Key Issues & Findings
Violation of Residential Use covenant prohibiting traffic/parking generation by business
The Petitioner HOA alleged that the Respondents, co-owners of the unit, violated CC&Rs Article 3, section 3.1 by operating a payroll processing company out of the unit. The ALJ found that the business required two employees to drive to the unit daily, thereby creating traffic and parking, which clearly and unambiguously violates the CC&R provision prohibiting non-residential use that creates traffic or parking.
Orders: Respondents were ordered to cease business operations at the unit (720 E. North Lane, Unit 1) within thirty-five days to comply with CC&R Article 3, section 3.1, and pay a civil penalty of $500.00 to the Department of Real Estate within sixty days. The Petitioner's request for refund of the filing fee was denied.
Filing fee: $0.00, Fee refunded: No, Civil penalty: $500.00
Disposition: petitioner_win
Cited:
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
The ALJ found that the Respondents violated the CC&Rs by operating a business that created traffic and parking. The Respondents were ordered to cease business operations and pay a $500.00 civil penalty. The Petitioner's request for a refund of its filing fee was denied.
Why this result: Petitioner's request for refund of the filing fee was denied because they cited no authority showing that the refund was within the tribunal’s authority.
Key Issues & Findings
Violation of Residential Use covenant prohibiting traffic/parking generation by business
The Petitioner HOA alleged that the Respondents, co-owners of the unit, violated CC&Rs Article 3, section 3.1 by operating a payroll processing company out of the unit. The ALJ found that the business required two employees to drive to the unit daily, thereby creating traffic and parking, which clearly and unambiguously violates the CC&R provision prohibiting non-residential use that creates traffic or parking.
Orders: Respondents were ordered to cease business operations at the unit (720 E. North Lane, Unit 1) within thirty-five days to comply with CC&R Article 3, section 3.1, and pay a civil penalty of $500.00 to the Department of Real Estate within sixty days. The Petitioner's request for refund of the filing fee was denied.
Filing fee: $0.00, Fee refunded: No, Civil penalty: $500.00
Disposition: petitioner_win
Cited:
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
The ALJ found that the Respondents violated the CC&Rs by operating a business that created traffic and parking. The Respondents were ordered to cease business operations and pay a $500.00 civil penalty. The Petitioner's request for a refund of its filing fee was denied.
Why this result: Petitioner's request for refund of the filing fee was denied because they cited no authority showing that the refund was within the tribunal’s authority.
Key Issues & Findings
Violation of Residential Use covenant prohibiting traffic/parking generation by business
The Petitioner HOA alleged that the Respondents, co-owners of the unit, violated CC&Rs Article 3, section 3.1 by operating a payroll processing company out of the unit. The ALJ found that the business required two employees to drive to the unit daily, thereby creating traffic and parking, which clearly and unambiguously violates the CC&R provision prohibiting non-residential use that creates traffic or parking.
Orders: Respondents were ordered to cease business operations at the unit (720 E. North Lane, Unit 1) within thirty-five days to comply with CC&R Article 3, section 3.1, and pay a civil penalty of $500.00 to the Department of Real Estate within sixty days. The Petitioner's request for refund of the filing fee was denied.
Filing fee: $0.00, Fee refunded: No, Civil penalty: $500.00
Disposition: petitioner_win
Cited:
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
