Case Summary
| Case ID | 19F-H1919053-REL-RHG |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2019-11-18 |
| Administrative Law Judge | Diane Mihalsky |
| Outcome | total_loss |
| Filing Fees Refunded | $0.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Joyce H Monsanto | Counsel | — |
|---|---|---|---|
| Respondent | Four Seasons at the Manor Homeowners Association | Counsel | Mark K. Sahl, Esq. |
Alleged Violations
A.R.S. § 33-1808; CC&R § 7.9
Outcome Summary
The Administrative Law Judge denied the Petitioner's petition, finding that the HOA did not violate A.R.S. § 33-1808 because its guideline limiting residents to one flagpole (which permits flying both the US flag and military flags) constitutes a reasonable rule under the statute. Furthermore, the HOA did not violate the appeal process outlined in CC&R § 7.9.
Why this result: Petitioner failed to establish that Respondent’s Board violated A.R.S. § 33-1808 or CC&R § 7. The board properly denied the application because the existing Architectural Guidelines allow her to fly both the American and Marine flags from a single flagpole, making her request for two poles an aesthetic choice rather than a necessity based on statutory right.
Key Issues & Findings
Refusal to allow installation of two flagpoles to display US and Marine Corps flags
Petitioner claimed Respondent violated statute (A.R.S. § 33-1808) and CC&Rs by denying her request to install two flagpoles for aesthetic reasons, arguing the denial effectively limited her right to display the flags and that the appeal process (CC&R § 7.9) was violated. The ALJ found the HOA's rule limiting flagpoles to one was a reasonable regulation under A.R.S. § 33-1808(B) because Petitioner could fly both flags on a single pole, and that the board complied with the appeal requirements of CC&R § 7.9.
Orders: Petitioner's petition is denied. The Board can properly find Petitioner in violation of the Architectural Guidelines and order her to remove one of her two flagpoles.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
- A.R.S. § 33-1808
- A.R.S. § 33-1803
- CC&R § 7.9
- A.R.S. § 32-2199(B)
- A.R.S. § 41-1092.07(G)(2)
- A.A.C. R2-19-119(A)
- A.A.C. R2-19-119(B)(1)
- A.A.C. R2-19-119(B)(2)
- A.R.S. § 41-1092.08(H)
- A.R.S. § 12-904(A)
Analytics Highlights
- A.R.S. § 33-1808
- A.R.S. § 33-1803
- CC&R § 7.9
- A.R.S. § 32-2199(B)
- A.R.S. § 41-1092.07(G)(2)
- A.A.C. R2-19-119(A)
- A.A.C. R2-19-119(B)(1)
- A.A.C. R2-19-119(B)(2)
- A.R.S. § 41-1092.08(H)
- A.R.S. § 12-904(A)
Audio Overview
Decision Documents
19F-H1919053-REL-RHG Decision – 749213.pdf
19F-H1919053-REL-RHG Decision – 753595.pdf
Briefing Document: Monsanto v. Four Seasons at the Manor HOA
Executive Summary
This document synthesizes the findings and decision in the case of Joyce H. Monsanto (Petitioner) versus the Four Seasons at the Manor Homeowners Association (Respondent), adjudicated by the Arizona Office of Administrative Hearings. The central dispute involved the HOA’s denial of Ms. Monsanto’s request to install two flagpoles on her property, a decision she contested as a violation of state law and the community’s governing documents.
The Administrative Law Judge (ALJ) ultimately denied the petition and ruled in favor of the HOA. The decision rested on three critical findings:
1. HOA Rules are Reasonable: The HOA’s Architectural Guideline limiting each property to a single flagpole is a “reasonable” regulation explicitly permitted under Arizona statute A.R.S. § 33-1808(B). The guidelines allow for two flags to be flown from a single pole, meaning the HOA did not prohibit the display of the flags themselves.
2. No Procedural Violation: The HOA Board complied with the 45-day decision period for appeals outlined in its Covenants, Conditions, and Restrictions (CC&Rs). The ALJ determined that the Board rendered a decision at its November 8, 2018, meeting and that the subsequent posting of draft meeting minutes on December 4, 2018, constituted a sufficient written record within the required timeframe.
3. Dispute Driven by Aesthetics: The ALJ concluded that the core of the Petitioner’s case was not about patriotism or the HOA’s unreasonableness, but rather her personal preference. The decision states, “Petitioner’s petition is about her choice not to install a single flagpole for her own aesthetic reasons.” The ALJ found the testimony of the HOA’s president credible while deeming the Petitioner’s testimony that a decision was not made to be “incredible.”
I. Case Background and Timeline
The case centers on a single-issue petition filed on March 6, 2019, by Joyce H. Monsanto, a homeowner in the Four Seasons at the Manor community in Sun City, Arizona. Ms. Monsanto alleged that her HOA violated state law and its own CC&Rs by refusing to approve her application to affix two separate flagpoles to her house—one for the United States flag and one for the United States Marine Corps flag.
Ms. Monsanto’s family has a significant history of military service, including a husband who served 25 years in the Marines, one son with 25 years in the Marines, and another with 30 years in the Coast Guard.
Aug 31, 2018
Ms. Monsanto submits a Design Review Application to install two 6′ flagpoles on the exterior wall of her house.
Sep 22, 2018
The HOA’s Architectural Committee issues a written Notice of Disapproval, citing the Architectural Guidelines’ limit of one flagpole per lot.
Oct 1, 2018
Ms. Monsanto submits a written appeal to the HOA Board, arguing the denial was unreasonable and that the Board could grant a waiver.
Nov 8, 2018
The HOA Board holds a meeting where it states it considered the appeal. Testimony regarding the events of this meeting was a central point of contention in the case.
Dec 4, 2018
Draft minutes from the November 8 meeting are posted on the HOA website, stating the Board had rejected Ms. Monsanto’s request for a waiver for two flagpoles.
Mar 6, 2019
Ms. Monsanto files her petition with the Arizona Department of Real Estate.
May 30, 2019
An initial evidentiary hearing is held, with the ALJ finding that the Petitioner had not established a violation by the HOA.
Aug 22, 2019
The Commissioner of the Department of Real Estate grants Ms. Monsanto’s request for a rehearing.
Oct 21, 2019
A rehearing is held before the Office of Administrative Hearings.
Nov 18, 2019
The ALJ issues the final Amended Administrative Law Judge Decision, again finding in favor of the HOA.
II. Central Arguments and Evidence
Petitioner’s Position (Joyce H. Monsanto)
• Statutory and CC&R Violations: Argued the HOA’s denial violated A.R.S. § 33-1808 (governing flag display) and CC&R § 7.9 (the appeals process).
• Aesthetic and Practical Concerns: Acknowledged she could fly two flags from one pole but did not want to, stating it would block the view from her front window and was undesirable for “aesthetic reasons.”
• Failure to Follow Procedure: Claimed the Board violated CC&R § 7.9 by failing to render a decision and issue a written notice directly to her within the 45-day period following her appeal. She argued this failure should have triggered the “deemed approval” clause of the CC&R.
• Insufficiency of Notice: Maintained that the draft meeting minutes posted on the HOA’s website were not a valid written denial because they were not sent directly to her, did not explicitly mention her “appeal,” and were not formally approved until April 2019.
• Inconsistent Enforcement: Alleged that the HOA’s denial was unreasonable because it did not uniformly enforce its Architectural Guidelines.
Respondent’s Position (Four Seasons HOA)
• Compliance with Law: Asserted that its one-flagpole rule is a “reasonable” regulation permitted by A.R.S. § 33-1808(B) and does not prohibit the display of flags.
• Consistent Enforcement: HOA President Tony Nunziato testified that the Board has never granted a waiver for the one-flagpole rule and that all of the other approximately 14 homes (out of 140) with flagpoles have only one.
• Adherence to Appeal Procedure: Mr. Nunziato testified that the Board consulted with the Architectural Committee, considered the appeal at the November 8, 2018 meeting, and verbally informed Ms. Monsanto of the denial at that time.
• Timely Written Record: Contended that the draft meeting minutes posted online on December 4, 2018—within the 45-day window—served as the required written record of the decision, satisfying the terms of CC&R § 7.9.
III. Relevant Statutes and Community Rules
A.R.S. § 33-1808 (Flag Display)
• Protection of Display: An HOA “shall not prohibit the outdoor front yard or backyard display” of the American flag or military flags.
• Authority to Regulate: An HOA “shall adopt reasonable rules and regulations regarding the placement and manner of display.” Crucially, the statute specifies that these rules “may regulate the location and size of flagpoles, may limit the member to displaying no more than two flags at once and may limit the height of the flagpole… but shall not prohibit the installation of a flagpole.”
Four Seasons at the Manor Architectural Guidelines
• Original Rule (May 2016): “No flagpole shall be installed without the prior written approval of the Architectural Committee… and only one flagpole is permitted per Lot.” The maximum height was 12 feet.
• Amended Rule (November 8, 2018): The Board amended the guidelines, increasing the maximum pole height to 20 feet and adding rules for illumination at night. However, “The Board did not change the limit of one flagpole per lot.”
Four Seasons at the Manor CC&Rs
• CC&R § 7.8 (Board Approval for Initial Application): Requires the Board to “inform the submitting party of the final decision” and provide the owner with a “written response” within 60 days.
• CC&R § 7.9 (Appeals): In the event of an appeal of a disapproval, it requires the Board to “consult with the Architectural Committee” and “render its written decision” within 45 days. It further states that “Failure of the Board to render a decision within said forth-five (45) day period shall be deemed approval of the submission.”
IV. Administrative Law Judge’s Decision and Rationale
The ALJ’s order denied the Petitioner’s petition, affirming the HOA’s right to enforce its one-flagpole rule. The legal conclusions underpinning this decision were definitive.
Key Legal Conclusions
1. Burden of Proof Not Met: The Petitioner bore the burden of proving that the HOA violated the CC&Rs by a “preponderance of the evidence.” The ALJ concluded she failed to meet this standard.
2. HOA Rule Is Reasonable and Legal: The one-flagpole guideline is a reasonable rule explicitly authorized under A.R.S. § 33-1808(B). Because the Petitioner could fly both flags from a single pole, the HOA was regulating the manner of display, not prohibiting it.
3. Credibility of Testimony: The ALJ found the testimony of HOA President Tony Nunziato—that the Board consulted the committee, made a decision, and verbally informed the Petitioner—to be “credible and supported by the minutes of the meeting.” Conversely, the Petitioner’s testimony that the Board did not make a decision was found to be “incredible.”
4. Interpretation of the Appeals Process (CC&R § 7.9): This was a pivotal point of the ruling.
◦ Decision Rendered: The ALJ determined the Board “orally reached a decision” at the November 8, 2018 meeting, thus “rendering a decision” as required.
◦ Written Record Created: The draft meeting minutes posted on December 4, 2018, constituted a “writing memorializing its decision” within the 45-day timeframe that began with the October 1, 2018 appeal.
◦ No Direct Notification Required for Appeals: The ALJ applied the “negative implication cannon of contract construction.” Because CC&R § 7.8 (for initial applications) explicitly requires a written response be provided to the owner, and CC&R § 7.9 (for appeals) does not contain this specific language, the latter rule only requires that a written decision be created, not necessarily delivered to the appellant.
5. “Deemed Approval” Clause Not Triggered: Because the Board rendered a decision and created a written record within the 45-day period, the Petitioner did not establish that her request should have been deemed approved.
The final order concluded that the HOA Board can properly find Ms. Monsanto in violation of the Architectural Guidelines and order her to remove one of her two flagpoles.