Briefing Doc – 18F-H1818042-REL
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.
