Tag Archives: ARIZ. REV. STAT. section 32-2199.02(B)

Susan L Jarzabek v. Hillcrest Improvement Association #2

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Case Summary

Case ID 22F-H2221008-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-11-19
Administrative Law Judge Thomas Shedden
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Susan L Jarzabek Counsel —
Respondent Hillcrest Improvement Association #2 Counsel Haidyn DiLorenzo, Esq.

Alleged Violations

CC&R Article 1, Section 10; Enforcement, Fines and Appeals Policy ("Policy")

Outcome Summary

Petitioner's complaint regarding the wrongful assessment of attorney's fees was dismissed because she failed to prove, by a preponderance of the evidence, that the HOA violated its Policy regarding pre-attorney notification requirements.

Why this result: Petitioner failed to meet her burden of proof; the ALJ found the Policy does not require the two notices prior to attorney escalation, as Petitioner had alleged.

Key Issues & Findings

Alleged violation of Policy concerning attorney's fees assessment and required pre-litigation notices.

Petitioner alleged the Association wrongfully assessed attorney's fees, arguing the Policy required providing the owner two warning notices and a certified letter before escalating a matter to attorney involvement.

Orders: Petitioner's petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
  • ARIZ. REV. STAT. section 32-2199.02(B)
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.07(F)(6)

Analytics Highlights

Topics: attorney fees, HOA policy enforcement, notice requirements, CC&Rs, due process
Additional Citations:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
  • ARIZ. REV. STAT. section 32-2199.02(B)
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.07(F)(6)

Audio Overview

Decision Documents

22F-H2221008-REL Decision – 926455.pdf

Uploaded 2025-10-09T03:38:01 (93.9 KB)

Richard J. Jones v. Desert Oasis of Surprise Master Association

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Case Summary

Case ID 21F-H2121038-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-11-15
Administrative Law Judge Thomas Shedden
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Richard J Jones Counsel —
Respondent Desert Oasis of Surprise Master Association Counsel Troy Stratman, Esq.

Alleged Violations

Design Guidelines; CC&Rs Section 4.1.1

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that Petitioner Richard J. Jones failed to meet his burden of proof to show the Association violated its Design Guidelines or engaged in selective enforcement.

Why this result: Petitioner did not show by a preponderance of the evidence that the Association violated the Guidelines or engaged in selective enforcement. Evidence indicated that the Petitioner was in violation of the existing Guidelines by failing to obtain prior approval for his driveway extension and failing to meet the required setback.

Key Issues & Findings

Petitioner alleged the Association violated Design Guidelines regarding setback requirements for driveway extensions and engaged in selective enforcement.

Petitioner filed a single issue petition asserting that Design Guidelines did not require a twelve-inch setback for driveway extensions from the property line and that the Association was selectively enforcing its rules. The Petitioner had installed a concrete driveway extension without obtaining prior ARC approval, and approval was denied due to the lack of the twelve-inch setback.

Orders: Richard J. Jones’s petition is dismissed.

Filing fee: $0.00, 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)
  • Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
  • Tierra Ranchos Homeowners Ass’n v Kitchukov, 216 Ariz. 173, 165 P.3d 173 (App. 2007)

Analytics Highlights

Topics: Driveway Extension, Architectural Review Committee, Setback Requirements, Design Guidelines, Selective Enforcement, HOA Violation
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. section 32-2199.02(B)
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. section 41-1092.09
  • Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
  • Tierra Ranchos Homeowners Ass’n v Kitchukov, 216 Ariz. 173, 165 P.3d 173 (App. 2007)

Audio Overview

Decision Documents

21F-H2121038-REL Decision – 924982.pdf

Uploaded 2025-10-09T03:36:49 (100.9 KB)

21F-H2121038-REL Decision – 924983.pdf

Uploaded 2025-10-09T03:36:50 (94.9 KB)

Don France v. Mesa East Property Owners Association

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Case Summary

Case ID 20F-H2020056-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-09-21
Administrative Law Judge Thomas Shedden
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Don France Counsel —
Respondent Mesa East Property Owners Association Counsel B. Austin Bailio

Alleged Violations

CC&R section 2.7

Outcome Summary

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

Audio Overview

Decision Documents

20F-H2020056-REL Decision – 823714.pdf

Uploaded 2025-10-08T07:12:15 (96.1 KB)

Don France v. Mesa East Property Owners Association

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Case Summary

Case ID 20F-H2020056-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-09-21
Administrative Law Judge Thomas Shedden
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Don France Counsel —
Respondent Mesa East Property Owners Association Counsel B. Austin Bailio

Alleged Violations

CC&R section 2.7

Outcome Summary

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

Audio Overview

Decision Documents

20F-H2020056-REL Decision – 823714.pdf

Uploaded 2025-10-09T03:35:18 (96.1 KB)

Don France v. Mesa East Property Owners Association

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Case Summary

Case ID 20F-H2020056-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-09-21
Administrative Law Judge Thomas Shedden
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Don France Counsel —
Respondent Mesa East Property Owners Association Counsel B. Austin Bailio

Alleged Violations

CC&R section 2.7

Outcome Summary

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

Thomas J Van Dan Elzen v. Carter Ranch Homeowners Association

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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, Esq.

Alleged Violations

A.R.S. § 33-1808

Outcome Summary

The Administrative Law Judge dismissed the Petitioner's complaint, finding the Petitioner failed to meet the burden of proof that the HOA's flag display rule was inconsistent with its governing documents or improperly adopted, and deemed the Respondent (HOA) the prevailing party.

Why this result: Petitioner failed to establish the Flag Display Rule was inconsistent with the CC&Rs or that the Association improperly adopted the rule.

Key Issues & Findings

Flags and Sings

Petitioner filed a single issue petition alleging the HOA violated A.R.S. § 33-1808 by issuing a violation notice for displaying a "Trump 2020" flag. Petitioner argued the HOA's Flag Display Rule was inconsistent with the CC&Rs because the CC&Rs only defined signs, not flags. The ALJ concluded the Petitioner had not established the rule was inconsistent with the CC&Rs or improperly adopted.

Orders: Petitioner Thomas J. Van Dan Elzen’s petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1808
  • A.A.C. R2-19-119
  • ARIZ. REV. STAT. section 32-2199.02(B)
  • ARIZ. REV. STAT. section 12-904(A)
  • 4 United States Code sections 4 through 10
  • P.L. 94-344

Audio Overview

Decision Documents

19F-H1919071-REL-RHG Decision – 767071.pdf

Uploaded 2025-10-08T07:09:45 (69.0 KB)





Briefing Doc – 19F-H1919071-REL-RHG


Administrative Hearing Briefing: Van Dan Elzen v. Carter Ranch HOA

Executive Summary

This document provides a comprehensive analysis of the Administrative Law Judge (ALJ) Decision in the case of Thomas J. Van Dan Elzen versus the Carter Ranch Homeowners Association (HOA), case number 19F-H1919071-REL-RHG. The dispute centered on the HOA’s prohibition of a “Trump 2020” flag displayed by Mr. Van Dan Elzen at his property. The petitioner alleged this prohibition violated Arizona state law.

The ALJ ultimately dismissed the petition, ruling in favor of the Carter Ranch HOA. The decision was based on the petitioner’s failure to prove by a preponderance of the evidence that the HOA’s “Flag Display Rule” was inconsistent with its foundational Covenants, Conditions, and Restrictions (CC&Rs) or that the rule was improperly adopted. Crucially, the ALJ found that the petitioner had not sufficiently alleged a direct violation of the relevant state statute, A.R.S. § 33-1808. The ruling effectively upholds the HOA’s authority, granted by its CC&Rs, to regulate the display of flags not explicitly protected by Arizona law.

——————————————————————————–

I. Case Overview

• Case Name: Thomas J. Van Dan Elzen, Petitioner, vs. Carter Ranch Homeowners Association, Respondent.

• Case Number: 19F-H1919071-REL-RHG

• Adjudicating Body: Arizona Office of Administrative Hearings

• Presiding Judge: Administrative Law Judge Velva Moses-Thompson

• Hearing Date: January 10, 2020

• Decision Date: January 30, 2020

• Subject of Dispute: The validity of an HOA rule prohibiting the display of a “Trump 2020” political flag, which the petitioner claimed violated A.R.S. § 33-1808.

II. Chronology of Key Events

• May 21, 2019: Carter Ranch HOA notifies petitioner Thomas J. 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 the HOA violated A.R.S. § 33-1808.

• November 18, 2019: The Department of Real Estate issues an order setting the matter for a rehearing.

• January 10, 2020: The rehearing is held before an Administrative Law Judge.

III. Petitioner’s Position (Thomas J. Van Dan Elzen)

Mr. Van Dan Elzen’s case was predicated on the argument that the HOA’s rules regarding flags were inconsistent with its own governing documents, specifically the Covenants, Conditions, and Restrictions (CC&Rs).

• Core Allegation: The HOA’s enforcement action violated A.R.S. § 33-1808, which governs flags and signs.

• Primary Argument: Mr. Van Dan Elzen contended that the HOA’s “Flag Display Rule” was invalid because the CC&Rs do not explicitly mention the word “flag.” He argued that the relevant section of the governing documents, DCC&R 3.14, only defines “SIGNS.”

• Direct Quotation from Petition: The petition stated the following, highlighting the perceived discrepancy:

IV. Respondent’s Position (Carter Ranch HOA)

The Carter Ranch HOA maintained that its “Flag Display Rule” was valid, properly enacted, and did not violate state law or its own governing documents.

• The “Flag Display Rule”: The HOA’s rules explicitly prohibit flying any flag other than those on an approved list, which includes:

◦ The American Flag

◦ Official flags of the U.S. Army, Navy, Air Force, Marine Corps, or Coast Guard

◦ A POW/MIA flag

◦ An Arizona Indian National flag

◦ The Arizona State flag

◦ The Gadsden Flag

• Authority to Regulate: The HOA asserted its authority to create this rule stemmed from Article V, Section 5.3 of its CC&Rs. This section grants the Board the power to adopt, amend, and repeal rules pertaining to “the health, safety or welfare of the owners… or restrictions on the use of Lots.” It also specifies that such rules are “enforceable in the same manner” as the CC&Rs themselves.

• Defense Arguments: The HOA contended that the petition should be dismissed because:

1. The Flag Display Rule was not inconsistent with the CC&Rs.

2. The rule was properly adopted under the authority granted in the CC&Rs.

3. The petitioner failed to allege that the HOA had actually violated a specific statute or provision of its governing documents.

V. Analysis of Governing Law: A.R.S. § 33-1808

This Arizona Revised Statute was central to the dispute. It places specific limitations on an HOA’s ability to regulate the display of certain flags and political signs.

Provision

Description of Regulation

Subsection A: Protected Flags

An HOA cannot prohibit the outdoor display of: The American flag (if displayed consistent with federal code), official U.S. military flags, the POW/MIA flag, the Arizona state flag, an Arizona Indian nations flag, or the Gadsden flag.

Subsection C: Political Signs

An HOA cannot prohibit the display of political signs on a member’s property, but may regulate them. Permissible regulations include:
• Time: Prohibiting display earlier than 71 days before an election and later than 3 days after an election.
• Size & Number: Regulations must be no more restrictive than applicable city/county ordinances. If no such ordinance exists, the HOA cannot limit the number of signs, but can cap the maximum aggregate dimensions at nine square feet.

• Definition of “Political Sign”: The statute defines a political sign as “a sign that attempts to influence the outcome of an election.”

VI. Administrative Law Judge’s Decision and Order

The ALJ concluded that the petitioner failed to meet the required burden of proof, which is to prove a violation by a preponderance of the evidence.

1. Rule Consistency: The ALJ concluded that the “Petitioner has not established that the Flag Display Rule was inconsistent with the CC&Rs.”

2. Rule Adoption: The ALJ found that the “Petitioner has not established that the Association improperly adopted the Flag Display Rule under its CC&Rs.”

3. Failure to Allege Violation: The judge noted that the “Petitioner has not alleged that Carter Ranch violated A.R.S. § 33-1808.” This indicates a failure in the petition’s framing to connect the HOA’s actions to a specific statutory prohibition.

4. Final Determination: Based on these conclusions, the judge determined that “Mr. Van Dan Elzen’s petition should be dismissed and the Respondent be deemed to be the prevailing party in this matter.”

• Dismissal: “IT IS ORDERED that Petitioner Thomas J. Van Dan Elzen’s petition is dismissed.”

• Binding Nature: The order is binding on the parties as it resulted from a rehearing.

• Appeal Rights: Any appeal must be filed with the superior court within 35 days from the date the order was served.


Thomas J Van Dan Elzen v. Carter Ranch Homeowners Association

Posted on by

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, Esq.

Alleged Violations

A.R.S. § 33-1808

Outcome Summary

The Administrative Law Judge dismissed the Petitioner's complaint, finding the Petitioner failed to meet the burden of proof that the HOA's flag display rule was inconsistent with its governing documents or improperly adopted, and deemed the Respondent (HOA) the prevailing party.

Why this result: Petitioner failed to establish the Flag Display Rule was inconsistent with the CC&Rs or that the Association improperly adopted the rule.

Key Issues & Findings

Flags and Sings

Petitioner filed a single issue petition alleging the HOA violated A.R.S. § 33-1808 by issuing a violation notice for displaying a "Trump 2020" flag. Petitioner argued the HOA's Flag Display Rule was inconsistent with the CC&Rs because the CC&Rs only defined signs, not flags. The ALJ concluded the Petitioner had not established the rule was inconsistent with the CC&Rs or improperly adopted.

Orders: Petitioner Thomas J. Van Dan Elzen’s petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1808
  • A.A.C. R2-19-119
  • ARIZ. REV. STAT. section 32-2199.02(B)
  • ARIZ. REV. STAT. section 12-904(A)
  • 4 United States Code sections 4 through 10
  • P.L. 94-344

Audio Overview

Decision Documents

19F-H1919071-REL-RHG Decision – 767071.pdf

Uploaded 2025-10-09T03:34:24 (69.0 KB)





Briefing Doc – 19F-H1919071-REL-RHG


Administrative Hearing Briefing: Van Dan Elzen v. Carter Ranch HOA

Executive Summary

This document provides a comprehensive analysis of the Administrative Law Judge (ALJ) Decision in the case of Thomas J. Van Dan Elzen versus the Carter Ranch Homeowners Association (HOA), case number 19F-H1919071-REL-RHG. The dispute centered on the HOA’s prohibition of a “Trump 2020” flag displayed by Mr. Van Dan Elzen at his property. The petitioner alleged this prohibition violated Arizona state law.

The ALJ ultimately dismissed the petition, ruling in favor of the Carter Ranch HOA. The decision was based on the petitioner’s failure to prove by a preponderance of the evidence that the HOA’s “Flag Display Rule” was inconsistent with its foundational Covenants, Conditions, and Restrictions (CC&Rs) or that the rule was improperly adopted. Crucially, the ALJ found that the petitioner had not sufficiently alleged a direct violation of the relevant state statute, A.R.S. § 33-1808. The ruling effectively upholds the HOA’s authority, granted by its CC&Rs, to regulate the display of flags not explicitly protected by Arizona law.

——————————————————————————–

I. Case Overview

• Case Name: Thomas J. Van Dan Elzen, Petitioner, vs. Carter Ranch Homeowners Association, Respondent.

• Case Number: 19F-H1919071-REL-RHG

• Adjudicating Body: Arizona Office of Administrative Hearings

• Presiding Judge: Administrative Law Judge Velva Moses-Thompson

• Hearing Date: January 10, 2020

• Decision Date: January 30, 2020

• Subject of Dispute: The validity of an HOA rule prohibiting the display of a “Trump 2020” political flag, which the petitioner claimed violated A.R.S. § 33-1808.

II. Chronology of Key Events

• May 21, 2019: Carter Ranch HOA notifies petitioner Thomas J. 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 the HOA violated A.R.S. § 33-1808.

• November 18, 2019: The Department of Real Estate issues an order setting the matter for a rehearing.

• January 10, 2020: The rehearing is held before an Administrative Law Judge.

III. Petitioner’s Position (Thomas J. Van Dan Elzen)

Mr. Van Dan Elzen’s case was predicated on the argument that the HOA’s rules regarding flags were inconsistent with its own governing documents, specifically the Covenants, Conditions, and Restrictions (CC&Rs).

• Core Allegation: The HOA’s enforcement action violated A.R.S. § 33-1808, which governs flags and signs.

• Primary Argument: Mr. Van Dan Elzen contended that the HOA’s “Flag Display Rule” was invalid because the CC&Rs do not explicitly mention the word “flag.” He argued that the relevant section of the governing documents, DCC&R 3.14, only defines “SIGNS.”

• Direct Quotation from Petition: The petition stated the following, highlighting the perceived discrepancy:

IV. Respondent’s Position (Carter Ranch HOA)

The Carter Ranch HOA maintained that its “Flag Display Rule” was valid, properly enacted, and did not violate state law or its own governing documents.

• The “Flag Display Rule”: The HOA’s rules explicitly prohibit flying any flag other than those on an approved list, which includes:

◦ The American Flag

◦ Official flags of the U.S. Army, Navy, Air Force, Marine Corps, or Coast Guard

◦ A POW/MIA flag

◦ An Arizona Indian National flag

◦ The Arizona State flag

◦ The Gadsden Flag

• Authority to Regulate: The HOA asserted its authority to create this rule stemmed from Article V, Section 5.3 of its CC&Rs. This section grants the Board the power to adopt, amend, and repeal rules pertaining to “the health, safety or welfare of the owners… or restrictions on the use of Lots.” It also specifies that such rules are “enforceable in the same manner” as the CC&Rs themselves.

• Defense Arguments: The HOA contended that the petition should be dismissed because:

1. The Flag Display Rule was not inconsistent with the CC&Rs.

2. The rule was properly adopted under the authority granted in the CC&Rs.

3. The petitioner failed to allege that the HOA had actually violated a specific statute or provision of its governing documents.

V. Analysis of Governing Law: A.R.S. § 33-1808

This Arizona Revised Statute was central to the dispute. It places specific limitations on an HOA’s ability to regulate the display of certain flags and political signs.

Provision

Description of Regulation

Subsection A: Protected Flags

An HOA cannot prohibit the outdoor display of: The American flag (if displayed consistent with federal code), official U.S. military flags, the POW/MIA flag, the Arizona state flag, an Arizona Indian nations flag, or the Gadsden flag.

Subsection C: Political Signs

An HOA cannot prohibit the display of political signs on a member’s property, but may regulate them. Permissible regulations include:
• Time: Prohibiting display earlier than 71 days before an election and later than 3 days after an election.
• Size & Number: Regulations must be no more restrictive than applicable city/county ordinances. If no such ordinance exists, the HOA cannot limit the number of signs, but can cap the maximum aggregate dimensions at nine square feet.

• Definition of “Political Sign”: The statute defines a political sign as “a sign that attempts to influence the outcome of an election.”

VI. Administrative Law Judge’s Decision and Order

The ALJ concluded that the petitioner failed to meet the required burden of proof, which is to prove a violation by a preponderance of the evidence.

1. Rule Consistency: The ALJ concluded that the “Petitioner has not established that the Flag Display Rule was inconsistent with the CC&Rs.”

2. Rule Adoption: The ALJ found that the “Petitioner has not established that the Association improperly adopted the Flag Display Rule under its CC&Rs.”

3. Failure to Allege Violation: The judge noted that the “Petitioner has not alleged that Carter Ranch violated A.R.S. § 33-1808.” This indicates a failure in the petition’s framing to connect the HOA’s actions to a specific statutory prohibition.

4. Final Determination: Based on these conclusions, the judge determined that “Mr. Van Dan Elzen’s petition should be dismissed and the Respondent be deemed to be the prevailing party in this matter.”

• Dismissal: “IT IS ORDERED that Petitioner Thomas J. Van Dan Elzen’s petition is dismissed.”

• Binding Nature: The order is binding on the parties as it resulted from a rehearing.

• Appeal Rights: Any appeal must be filed with the superior court within 35 days from the date the order was served.


Thomas J Van Dan Elzen v. Carter Ranch Homeowners Association

Posted on by

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, Esq.

Alleged Violations

A.R.S. § 33-1808

Outcome Summary

The Administrative Law Judge dismissed the Petitioner's case, finding that the Petitioner failed to meet the burden of proof to establish that the Respondent HOA violated A.R.S. § 33-1808 or improperly adopted its Flag Display Rule.

Why this result: Petitioner failed to establish a violation of A.R.S. § 33-1808 and failed to prove that the HOA's Flag Display Rule was inconsistent with or improperly adopted under the CC&Rs.

Key Issues & Findings

Flags and Sings

Petitioner Thomas J. Van Dan Elzen filed a petition arguing that the HOA violated A.R.S. § 33-1808 after being notified he violated Association Rules by displaying a “Trump 2020” flag. He argued the HOA's Flag Display Rule was invalid because the CC&Rs only defined SIGNS (DCC&R 3.14) and had no reference to Flags whatsoever, thus the rule was inconsistent with the CC&Rs.

Orders: Petitioner Thomas J. Van Dan Elzen’s petition is dismissed. Respondent is deemed to be the prevailing party.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1808
  • A.A.C. R2-19-119
  • BLACK'S LAW DICTIONARY 1182 (6th ed. 1990)
  • 4 United States Code sections 4 through 10
  • ARIZ. REV. STAT. section 32-2199.02(B)
  • ARIZ. REV. STAT. section 12-904(A)

Analytics Highlights

Topics: Flag Display, Political Sign, CC&Rs, Rules & Regulations
Additional Citations:

  • A.R.S. § 33-1808
  • A.A.C. R2-19-119
  • 4 United States Code sections 4 through 10

Audio Overview

Decision Documents

19F-H1919071-REL Decision – 767071.pdf

Uploaded 2025-10-08T07:09:41 (69.0 KB)





Briefing Doc – 19F-H1919071-REL


Administrative Hearing Briefing: Van Dan Elzen v. Carter Ranch HOA

Executive Summary

This document provides a comprehensive analysis of the Administrative Law Judge (ALJ) Decision in the case of Thomas J. Van Dan Elzen versus the Carter Ranch Homeowners Association (HOA), case number 19F-H1919071-REL-RHG. The dispute centered on the HOA’s prohibition of a “Trump 2020” flag displayed by Mr. Van Dan Elzen at his property. The petitioner alleged this prohibition violated Arizona state law.

The ALJ ultimately dismissed the petition, ruling in favor of the Carter Ranch HOA. The decision was based on the petitioner’s failure to prove by a preponderance of the evidence that the HOA’s “Flag Display Rule” was inconsistent with its foundational Covenants, Conditions, and Restrictions (CC&Rs) or that the rule was improperly adopted. Crucially, the ALJ found that the petitioner had not sufficiently alleged a direct violation of the relevant state statute, A.R.S. § 33-1808. The ruling effectively upholds the HOA’s authority, granted by its CC&Rs, to regulate the display of flags not explicitly protected by Arizona law.

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I. Case Overview

• Case Name: Thomas J. Van Dan Elzen, Petitioner, vs. Carter Ranch Homeowners Association, Respondent.

• Case Number: 19F-H1919071-REL-RHG

• Adjudicating Body: Arizona Office of Administrative Hearings

• Presiding Judge: Administrative Law Judge Velva Moses-Thompson

• Hearing Date: January 10, 2020

• Decision Date: January 30, 2020

• Subject of Dispute: The validity of an HOA rule prohibiting the display of a “Trump 2020” political flag, which the petitioner claimed violated A.R.S. § 33-1808.

II. Chronology of Key Events

• May 21, 2019: Carter Ranch HOA notifies petitioner Thomas J. 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 the HOA violated A.R.S. § 33-1808.

• November 18, 2019: The Department of Real Estate issues an order setting the matter for a rehearing.

• January 10, 2020: The rehearing is held before an Administrative Law Judge.

III. Petitioner’s Position (Thomas J. Van Dan Elzen)

Mr. Van Dan Elzen’s case was predicated on the argument that the HOA’s rules regarding flags were inconsistent with its own governing documents, specifically the Covenants, Conditions, and Restrictions (CC&Rs).

• Core Allegation: The HOA’s enforcement action violated A.R.S. § 33-1808, which governs flags and signs.

• Primary Argument: Mr. Van Dan Elzen contended that the HOA’s “Flag Display Rule” was invalid because the CC&Rs do not explicitly mention the word “flag.” He argued that the relevant section of the governing documents, DCC&R 3.14, only defines “SIGNS.”

• Direct Quotation from Petition: The petition stated the following, highlighting the perceived discrepancy:

IV. Respondent’s Position (Carter Ranch HOA)

The Carter Ranch HOA maintained that its “Flag Display Rule” was valid, properly enacted, and did not violate state law or its own governing documents.

• The “Flag Display Rule”: The HOA’s rules explicitly prohibit flying any flag other than those on an approved list, which includes:

◦ The American Flag

◦ Official flags of the U.S. Army, Navy, Air Force, Marine Corps, or Coast Guard

◦ A POW/MIA flag

◦ An Arizona Indian National flag

◦ The Arizona State flag

◦ The Gadsden Flag

• Authority to Regulate: The HOA asserted its authority to create this rule stemmed from Article V, Section 5.3 of its CC&Rs. This section grants the Board the power to adopt, amend, and repeal rules pertaining to “the health, safety or welfare of the owners… or restrictions on the use of Lots.” It also specifies that such rules are “enforceable in the same manner” as the CC&Rs themselves.

• Defense Arguments: The HOA contended that the petition should be dismissed because:

1. The Flag Display Rule was not inconsistent with the CC&Rs.

2. The rule was properly adopted under the authority granted in the CC&Rs.

3. The petitioner failed to allege that the HOA had actually violated a specific statute or provision of its governing documents.

V. Analysis of Governing Law: A.R.S. § 33-1808

This Arizona Revised Statute was central to the dispute. It places specific limitations on an HOA’s ability to regulate the display of certain flags and political signs.

Provision

Description of Regulation

Subsection A: Protected Flags

An HOA cannot prohibit the outdoor display of: The American flag (if displayed consistent with federal code), official U.S. military flags, the POW/MIA flag, the Arizona state flag, an Arizona Indian nations flag, or the Gadsden flag.

Subsection C: Political Signs

An HOA cannot prohibit the display of political signs on a member’s property, but may regulate them. Permissible regulations include:
• Time: Prohibiting display earlier than 71 days before an election and later than 3 days after an election.
• Size & Number: Regulations must be no more restrictive than applicable city/county ordinances. If no such ordinance exists, the HOA cannot limit the number of signs, but can cap the maximum aggregate dimensions at nine square feet.

• Definition of “Political Sign”: The statute defines a political sign as “a sign that attempts to influence the outcome of an election.”

VI. Administrative Law Judge’s Decision and Order

The ALJ concluded that the petitioner failed to meet the required burden of proof, which is to prove a violation by a preponderance of the evidence.

1. Rule Consistency: The ALJ concluded that the “Petitioner has not established that the Flag Display Rule was inconsistent with the CC&Rs.”

2. Rule Adoption: The ALJ found that the “Petitioner has not established that the Association improperly adopted the Flag Display Rule under its CC&Rs.”

3. Failure to Allege Violation: The judge noted that the “Petitioner has not alleged that Carter Ranch violated A.R.S. § 33-1808.” This indicates a failure in the petition’s framing to connect the HOA’s actions to a specific statutory prohibition.

4. Final Determination: Based on these conclusions, the judge determined that “Mr. Van Dan Elzen’s petition should be dismissed and the Respondent be deemed to be the prevailing party in this matter.”

• Dismissal: “IT IS ORDERED that Petitioner Thomas J. Van Dan Elzen’s petition is dismissed.”

• Binding Nature: The order is binding on the parties as it resulted from a rehearing.

• Appeal Rights: Any appeal must be filed with the superior court within 35 days from the date the order was served.