Tag Archives: ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11

Victor L Pattarozzi v. Estrella Vista Homeowners Association

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Case Summary

Case ID 19F-H1919047-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-06-05
Administrative Law Judge Thomas Shedden
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Victor L Pattarozzi Counsel —
Respondent Estrella Vista Homeowners Association Counsel Andrew Apodaca, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1804

Outcome Summary

The Administrative Law Judge dismissed the petition, ruling that the Architectural Committee meetings of the HOA were not 'regularly scheduled' within the meaning of ARIZ. REV. STAT. § 33-1804, and therefore the HOA was not required to hold them open to association members.

Why this result: The petitioner failed to prove that the committee meetings met the requirement of being 'regularly scheduled' because the committee did not meet at fixed or uniform intervals, but rather considered applications as they were received.

Key Issues & Findings

Whether the Architectural Committee meetings are 'regularly scheduled' and thus required to be open to members.

Petitioner alleged the HOA violated ARS 33-1804 by failing to hold open meetings of its Architectural Committee (ARC). The ALJ found that because the ARC did not meet on a set schedule or at uniform intervals, it did not hold 'regularly scheduled' meetings as required by the statute, and thus was not required to be open.

Orders: Petitioner's petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 33-1804
  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • Gutierrez v. Industrial Commission of Arizona
  • State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
  • U.S. Parking v. City of Phoenix, 160 Ariz. 210, 772 P.2d 33 (App. 1989)
  • Deer Valley, v. Houser, 214 Ariz. 293, 296, 152 P.3d 490, 493 (2007)

Analytics Highlights

Topics: HOA Open Meetings, Architectural Review Committee, Statutory Interpretation, Regularly Scheduled
Additional Citations:

  • ARIZ. REV. STAT. § 33-1804
  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • Gutierrez v. Industrial Commission of Arizona
  • State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
  • U.S. Parking v. City of Phoenix, 160 Ariz. 210, 772 P.2d 33 (App. 1989)
  • Deer Valley, v. Houser, 214 Ariz. 293, 296, 152 P.3d 490, 493 (2007)

Audio Overview

Decision Documents

19F-H1919047-REL Decision – 713039.pdf

Uploaded 2025-10-08T07:08:58 (89.8 KB)





Briefing Doc – 19F-H1919047-REL


Administrative Law Judge Decision: Pattarozzi vs. Estrella Vista HOA

Executive Summary

This document provides a comprehensive analysis of the Administrative Law Judge Decision in case number 19F-H1919047-REL, concerning a dispute between petitioner Victor L. Pattarozzi and the Estrella Vista Homeowners Association (HOA). The central issue was whether the HOA’s Architectural Review Committee (ARC) meetings were required to be open to all association members under Arizona state law.

The petitioner argued that the HOA violated ARIZ. REV. STAT. § 33-1804 by not holding open meetings for its ARC. The HOA contended that its ARC meetings were not “regularly scheduled” and therefore were exempt from the open meeting requirement for committees under the statute.

The Administrative Law Judge, Thomas Shedden, ruled in favor of the Estrella Vista Homeowners Association, dismissing the petition. The decision hinged on the specific interpretation of the phrase “regularly scheduled committee meetings.” The judge concluded that the ARC, which considers applications on an as-needed basis rather than at fixed, uniform intervals, does not hold “regularly scheduled” meetings. Consequently, its meetings are not required to be open to the general membership of the association.

——————————————————————————–

I. Case Overview

• Case Number: 19F-H1919047-REL

• Parties:

◦ Petitioner: Victor L. Pattarozzi

◦ Respondent: Estrella Vista Homeowners Association

• Presiding Judge: Thomas Shedden, Administrative Law Judge

• Hearing Date: May 16, 2019

• Decision Date: June 5, 2019

• Allegation: The petitioner alleged that the respondent violated ARIZ. REV. STAT. § 33-1804 by failing to hold open meetings for its Architectural Committee, also referred to as the Architectural Review Committee (ARC).

II. Positions of the Parties

A. Petitioner’s Argument (Victor L. Pattarozzi)

Mr. Pattarozzi’s case was predicated on the belief that all ARC meetings should be open to HOA members. His key arguments were:

• Statutory Violation: The HOA’s practice of holding closed ARC meetings constituted a direct violation of the open meeting requirements outlined in ARIZ. REV. STAT. § 33-1804.

• Definition of “Regularly”: To support his interpretation, Mr. Pattarozzi provided dictionary definitions for “regularly” and “regular”:

◦ Regularly: (1) “in a regular manner”; (2) “on a regular basis: at regular intervals.”

◦ Regular: (1) “constituted, conducted, scheduled, or done in conformity with established or prescribed usages, rules, or discipline”; (2) “recurring, attending, or functioning at fixed, uniform, or normal intervals.”

• Procedural Solution: He suggested that the HOA could comply with the law by scheduling ARC meetings on a weekly basis and simply canceling them if no applications were pending for review.

• Policy of Openness: Mr. Pattarozzi contended that the state’s declared policy in favor of open meetings, as stated in subsection 33-1804(F), should be construed to require ARC meetings to be open to members.

B. Respondent’s Argument (Estrella Vista HOA)

The HOA, represented by Andrew Apodaca, Esq., with testimony from Board President Stuart Glenn, countered that its ARC meetings were not subject to the open meeting law.

• Core Defense: The respondent’s primary position was that ARC meetings are not required to be open to members because they are not “regularly scheduled” as stipulated by the statute.

III. Key Findings of Fact

The Administrative Law Judge established the following facts based on the hearing:

• ARC Composition and Schedule: The ARC consists of five members and does not meet on a set or recurring schedule. It considers applications as they are received.

• Application Volume: As of the May 16, 2019 hearing date, the ARC had received twelve applications in 2019.

• Application Processing:

◦ The HOA’s management company forwards applications to Board President Stuart Glenn.

◦ Mr. Glenn determines how each application is processed.

• “Rubber Stamp” Process: The ARC has a pre-approved “rubber stamp” process for certain requests, specifically for solar panels and repainting using a preapproved color. These requests are approved without further review.

◦ Of the twelve applications received in 2019, eight were approved via this “rubber stamp” process.

• Standard Review Process: For any application not meeting the “rubber stamp” criteria, Mr. Glenn forwards the application to the other four ARC members, who then individually “report back as to their agreement or disagreement with approving the application.”

IV. Legal Analysis and Rationale for Decision

The judge’s decision was based on a detailed interpretation of the relevant statute and legal principles.

A. Statutory Interpretation of ARIZ. REV. STAT. § 33-1804

The judge focused on the precise wording of subsection 33-1804(A): “all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association….”

The judge’s analysis highlighted a critical distinction made by the legislature:

• Board/Association Meetings: The word “all” mandates that every meeting of the full association membership and the board of directors must be open.

• Committee Meetings: The legislature added the qualifier “regularly scheduled,” which explicitly means that not all committee meetings must be open—only those that are regularly scheduled.

B. Defining “Regularly Scheduled”

The judge evaluated the dictionary definitions provided by Mr. Pattarozzi to determine the legislative intent behind the phrase.

• Rejected Definition: The judge dismissed the first definition of “regular” (“done in conformity with the rules”). He reasoned that since all committee meetings are presumed to be conducted according to established rules, applying this definition would make the word “regular” in the statute “redundant or trivial.”

• Accepted Definition: The judge found the second definition of “regular”—”recurring, attending, or functioning at fixed, uniform, or normal intervals”—to be the appropriate interpretation.

• Application to the ARC: Based on this accepted definition, the judge concluded that only committee meetings scheduled on a recurring basis at uniform intervals are required to be open to members. The Estrella Vista HOA’s ARC, which meets on an as-needed basis, does not fit this definition.

C. Analysis of the Policy Statement

The judge also rejected Mr. Pattarozzi’s argument regarding the policy of openness declared in subsection 33-1804(F).

• Statutory Limitation: The judge noted that the policy subsection explicitly references only “meetings of the members’ association or meetings of the board of directors.”

• Omission of Committees: Because the policy statement does not mention committee meetings, the judge concluded that it could not be used to compel the ARC meetings to be open.

V. Final Order and Conclusion

Based on the preceding analysis, the Administrative Law Judge reached a definitive conclusion.

• Conclusion of Law: The judge found that “Respondent’s Architectural Committee does not hold ‘regularly scheduled’ meetings within the meaning of ARIZ. REV. STAT. section 33-1804.”

• Final Ruling: As Mr. Pattarozzi had not proven by a preponderance of the evidence that the HOA violated the statute, his petition was ordered to be dismissed.

• Notice of Rehearing: The decision included a formal notice that the order is binding unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the order.


Victor L Pattarozzi v. Estrella Vista Homeowners Association

Posted on by

Case Summary

Case ID 19F-H1919047-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-06-05
Administrative Law Judge Thomas Shedden
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Victor L Pattarozzi Counsel —
Respondent Estrella Vista Homeowners Association Counsel Andrew Apodaca, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1804

Outcome Summary

The Administrative Law Judge dismissed the petition, ruling that the Architectural Committee meetings of the HOA were not 'regularly scheduled' within the meaning of ARIZ. REV. STAT. § 33-1804, and therefore the HOA was not required to hold them open to association members.

Why this result: The petitioner failed to prove that the committee meetings met the requirement of being 'regularly scheduled' because the committee did not meet at fixed or uniform intervals, but rather considered applications as they were received.

Key Issues & Findings

Whether the Architectural Committee meetings are 'regularly scheduled' and thus required to be open to members.

Petitioner alleged the HOA violated ARS 33-1804 by failing to hold open meetings of its Architectural Committee (ARC). The ALJ found that because the ARC did not meet on a set schedule or at uniform intervals, it did not hold 'regularly scheduled' meetings as required by the statute, and thus was not required to be open.

Orders: Petitioner's petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 33-1804
  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • Gutierrez v. Industrial Commission of Arizona
  • State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
  • U.S. Parking v. City of Phoenix, 160 Ariz. 210, 772 P.2d 33 (App. 1989)
  • Deer Valley, v. Houser, 214 Ariz. 293, 296, 152 P.3d 490, 493 (2007)

Analytics Highlights

Topics: HOA Open Meetings, Architectural Review Committee, Statutory Interpretation, Regularly Scheduled
Additional Citations:

  • ARIZ. REV. STAT. § 33-1804
  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • Gutierrez v. Industrial Commission of Arizona
  • State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
  • U.S. Parking v. City of Phoenix, 160 Ariz. 210, 772 P.2d 33 (App. 1989)
  • Deer Valley, v. Houser, 214 Ariz. 293, 296, 152 P.3d 490, 493 (2007)

Audio Overview

Decision Documents

19F-H1919047-REL Decision – 713039.pdf

Uploaded 2025-10-09T03:34:08 (89.8 KB)





Briefing Doc – 19F-H1919047-REL


Administrative Law Judge Decision: Pattarozzi vs. Estrella Vista HOA

Executive Summary

This document provides a comprehensive analysis of the Administrative Law Judge Decision in case number 19F-H1919047-REL, concerning a dispute between petitioner Victor L. Pattarozzi and the Estrella Vista Homeowners Association (HOA). The central issue was whether the HOA’s Architectural Review Committee (ARC) meetings were required to be open to all association members under Arizona state law.

The petitioner argued that the HOA violated ARIZ. REV. STAT. § 33-1804 by not holding open meetings for its ARC. The HOA contended that its ARC meetings were not “regularly scheduled” and therefore were exempt from the open meeting requirement for committees under the statute.

The Administrative Law Judge, Thomas Shedden, ruled in favor of the Estrella Vista Homeowners Association, dismissing the petition. The decision hinged on the specific interpretation of the phrase “regularly scheduled committee meetings.” The judge concluded that the ARC, which considers applications on an as-needed basis rather than at fixed, uniform intervals, does not hold “regularly scheduled” meetings. Consequently, its meetings are not required to be open to the general membership of the association.

——————————————————————————–

I. Case Overview

• Case Number: 19F-H1919047-REL

• Parties:

◦ Petitioner: Victor L. Pattarozzi

◦ Respondent: Estrella Vista Homeowners Association

• Presiding Judge: Thomas Shedden, Administrative Law Judge

• Hearing Date: May 16, 2019

• Decision Date: June 5, 2019

• Allegation: The petitioner alleged that the respondent violated ARIZ. REV. STAT. § 33-1804 by failing to hold open meetings for its Architectural Committee, also referred to as the Architectural Review Committee (ARC).

II. Positions of the Parties

A. Petitioner’s Argument (Victor L. Pattarozzi)

Mr. Pattarozzi’s case was predicated on the belief that all ARC meetings should be open to HOA members. His key arguments were:

• Statutory Violation: The HOA’s practice of holding closed ARC meetings constituted a direct violation of the open meeting requirements outlined in ARIZ. REV. STAT. § 33-1804.

• Definition of “Regularly”: To support his interpretation, Mr. Pattarozzi provided dictionary definitions for “regularly” and “regular”:

◦ Regularly: (1) “in a regular manner”; (2) “on a regular basis: at regular intervals.”

◦ Regular: (1) “constituted, conducted, scheduled, or done in conformity with established or prescribed usages, rules, or discipline”; (2) “recurring, attending, or functioning at fixed, uniform, or normal intervals.”

• Procedural Solution: He suggested that the HOA could comply with the law by scheduling ARC meetings on a weekly basis and simply canceling them if no applications were pending for review.

• Policy of Openness: Mr. Pattarozzi contended that the state’s declared policy in favor of open meetings, as stated in subsection 33-1804(F), should be construed to require ARC meetings to be open to members.

B. Respondent’s Argument (Estrella Vista HOA)

The HOA, represented by Andrew Apodaca, Esq., with testimony from Board President Stuart Glenn, countered that its ARC meetings were not subject to the open meeting law.

• Core Defense: The respondent’s primary position was that ARC meetings are not required to be open to members because they are not “regularly scheduled” as stipulated by the statute.

III. Key Findings of Fact

The Administrative Law Judge established the following facts based on the hearing:

• ARC Composition and Schedule: The ARC consists of five members and does not meet on a set or recurring schedule. It considers applications as they are received.

• Application Volume: As of the May 16, 2019 hearing date, the ARC had received twelve applications in 2019.

• Application Processing:

◦ The HOA’s management company forwards applications to Board President Stuart Glenn.

◦ Mr. Glenn determines how each application is processed.

• “Rubber Stamp” Process: The ARC has a pre-approved “rubber stamp” process for certain requests, specifically for solar panels and repainting using a preapproved color. These requests are approved without further review.

◦ Of the twelve applications received in 2019, eight were approved via this “rubber stamp” process.

• Standard Review Process: For any application not meeting the “rubber stamp” criteria, Mr. Glenn forwards the application to the other four ARC members, who then individually “report back as to their agreement or disagreement with approving the application.”

IV. Legal Analysis and Rationale for Decision

The judge’s decision was based on a detailed interpretation of the relevant statute and legal principles.

A. Statutory Interpretation of ARIZ. REV. STAT. § 33-1804

The judge focused on the precise wording of subsection 33-1804(A): “all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association….”

The judge’s analysis highlighted a critical distinction made by the legislature:

• Board/Association Meetings: The word “all” mandates that every meeting of the full association membership and the board of directors must be open.

• Committee Meetings: The legislature added the qualifier “regularly scheduled,” which explicitly means that not all committee meetings must be open—only those that are regularly scheduled.

B. Defining “Regularly Scheduled”

The judge evaluated the dictionary definitions provided by Mr. Pattarozzi to determine the legislative intent behind the phrase.

• Rejected Definition: The judge dismissed the first definition of “regular” (“done in conformity with the rules”). He reasoned that since all committee meetings are presumed to be conducted according to established rules, applying this definition would make the word “regular” in the statute “redundant or trivial.”

• Accepted Definition: The judge found the second definition of “regular”—”recurring, attending, or functioning at fixed, uniform, or normal intervals”—to be the appropriate interpretation.

• Application to the ARC: Based on this accepted definition, the judge concluded that only committee meetings scheduled on a recurring basis at uniform intervals are required to be open to members. The Estrella Vista HOA’s ARC, which meets on an as-needed basis, does not fit this definition.

C. Analysis of the Policy Statement

The judge also rejected Mr. Pattarozzi’s argument regarding the policy of openness declared in subsection 33-1804(F).

• Statutory Limitation: The judge noted that the policy subsection explicitly references only “meetings of the members’ association or meetings of the board of directors.”

• Omission of Committees: Because the policy statement does not mention committee meetings, the judge concluded that it could not be used to compel the ARC meetings to be open.

V. Final Order and Conclusion

Based on the preceding analysis, the Administrative Law Judge reached a definitive conclusion.

• Conclusion of Law: The judge found that “Respondent’s Architectural Committee does not hold ‘regularly scheduled’ meetings within the meaning of ARIZ. REV. STAT. section 33-1804.”

• Final Ruling: As Mr. Pattarozzi had not proven by a preponderance of the evidence that the HOA violated the statute, his petition was ordered to be dismissed.

• Notice of Rehearing: The decision included a formal notice that the order is binding unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the order.


Pointe Tapatio Community Association v. Lanye C. and Devin E. Willey

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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)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 138 P.3d 1210 (App. 2006)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. section 41-1092.09

Analytics Highlights

Topics: HOA, CC&Rs, Business Use, Home Business, Parking, Traffic, Civil Penalty
Additional Citations:

  • 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)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 138 P.3d 1210 (App. 2006)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. section 41-1092.09

Pointe Tapatio Community Association vs. Lanye C. and Devin E. Wilkey

Posted on by

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)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 138 P.3d 1210 (App. 2006)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. section 41-1092.09

Analytics Highlights

Topics: HOA, CC&Rs, Business Use, Home Business, Parking, Traffic, Civil Penalty
Additional Citations:

  • 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)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 138 P.3d 1210 (App. 2006)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. section 41-1092.09

Audio Overview

Decision Documents

19F-H1919044-REL Decision – 706518.pdf

Uploaded 2025-10-08T07:08:46 (36.5 KB)

19F-H1919044-REL Decision – 706560.pdf

Uploaded 2025-10-08T07:08:47 (108.8 KB)





Briefing Doc – 19F-H1919044-REL


Administrative Law Judge Decision Briefing: Pointe Tapatio Community Association v. Wilkey

Executive Summary

This briefing synthesizes the findings and decision in case number 19F-H1919044-REL, wherein the Pointe Tapatio Community Association petitioned against residents Lanye C. and Devin E. Wilkey for violating community covenants. The Administrative Law Judge (ALJ) found conclusively in favor of the petitioner, determining that the Wilkeys were operating a business from their residential unit in direct violation of the association’s Covenants, Conditions, and Restrictions (CC&Rs).

The core of the violation centered on CC&R Article 3, Section 3.1, which prohibits any non-residential use that “creates traffic [or] parking.” The Wilkeys acknowledged that two employees of their payroll processing company, Devau Human Resources, regularly commuted to and worked from the unit, thereby creating both traffic and parking. This admission was sufficient to establish a clear and unambiguous breach of the covenant.

The respondents’ primary defense—that they had received verbal permission from a former property manager in 2009—was found to be unsubstantiated and insufficient. The ALJ ordered the Wilkeys to cease all business operations at the residence within 35 days and to pay a civil penalty of $500.00 to the Department of Real Estate within 60 days.

Case Overview

Case Number

19F-H1919044-REL

Petitioner

Pointe Tapatio Community Association

Respondents

Lanye C. Wilkey and Devin E. Wilkey

Hearing Date

April 26, 2019

Decision Date

May 7, 2019

Presiding Judge

Thomas Shedden, Administrative Law Judge

Location

Office of Administrative Hearings, Phoenix, Arizona

Allegation and Governing Rule

The Pointe Tapatio Community Association (Petitioner) alleged that Lanye C. Wilkey and Devin E. Wilkey (Respondents) were in violation of the community’s CC&Rs by using their property at 720 E. North Lane, Unit 1, as an office for their business, rather than exclusively as a residence.

The specific rule cited was CC&Rs Article 3, Section 3.1, which states:

“Residential. Each Residence shall be used, improved, and devoted exclusively to first class residential use, and no gainful occupation, profession, trade, business, religion, or other non-residential use which creates traffic [or] parking … shall be conducted from any Residence [or part thereof.]”

The association requested an order for the Wilkeys to abide by the CC&Rs, the imposition of a civil penalty, and a refund of its filing fee.

Key Findings of Fact

The Business Operation

• Business Entity: The Wilkeys, who are mother and son, co-own and operate Devau Human Resources, a payroll processing company. The business had previously operated from a commercial location before moving to the residential unit in late 2009.

• On-Site Employees: The Wilkeys acknowledged that two employees of Devau Human Resources drive to the unit to work.

◦ One employee works Monday through Thursday, from 9:30 a.m. to 4:00 p.m.

◦ A second employee works Monday through Friday, from 9:30 a.m. to 5:00 p.m.

• Parking and Traffic: It was established that these employees at times park on the community’s streets, thereby creating both traffic and parking related to the business.

• Public Presence: Devau Human Resources’ website lists the E. North Lane address (as a mailing address only) and advertises office hours of 9:00 a.m. to 5:00 p.m., Monday through Friday. Google Maps also shows the business operating from this address.

• Admissions: Ms. Wilkey acknowledged during testimony that they consider the unit to be an office.

• Client Contact: The business does not have clients or customers come to the unit. Mail for the business is received at the unit.

The Respondents’ Defense

• Claim of Permission: The Wilkeys asserted that they received permission to move the business into the unit in 2009 from the property manager at the time, Howard Flisser.

• Lack of Evidence: The respondents acknowledged they had no written confirmation of this permission. Their belief was based on second- and third-hand information.

◦ Ms. Wilkey testified that she asked her husband (since deceased) if they could operate from the unit, who then asked a salesperson, who in turn allegedly asked Mr. Flisser and relayed that it was permissible.

◦ Mr. Wilkey testified that he believed they had permission because his father would not have taken the risk of moving the business without it.

• Claim of Residency: Mr. Wilkey testified that he considers the unit to be one of his two primary residences. However, when asked by attorneys for both parties how often he stayed there, he did not provide a responsive answer.

The Association’s Rebuttal and Position

• Timeline of Action: The Association sent a letter to the Wilkeys on August 8, 2018, informing them they were out of compliance and must cease business operations by August 31, 2018. The official petition was filed with the Department of Real Estate on January 17, 2019.

• Manager’s Testimony: Association board member Paula Duistermars testified that she and the association’s attorney had spoken to Howard Flisser a few days before the hearing. In that conversation, Mr. Flisser stated he could not recall giving permission and had volunteered twice that he “never gave permission for Devau to operate out of the unit.”

• Manager’s Authority: Ms. Duistermars also testified that Mr. Flisser, as property manager, did not have the authority to grant such permission; only the Association’s Board could do so.

• Permitted Businesses: The Association does allow certain home-based businesses that do not generate traffic or parking, such as telecommuting and teaching online classes. These do not require explicit Board permission.

• Origin of Complaint: The Board became aware of the Wilkeys’ business operation when another resident brought the issue to its attention. Ms. Duistermars was unaware of any specific complaints filed against the Wilkeys regarding traffic, parking, or noise.

Conclusions of Law and Rationale

The ALJ’s decision was based on the standard of a “preponderance of the evidence.” The core legal conclusions were as follows:

1. CC&Rs as a Binding Contract: The CC&Rs constitute a contract between the parties, and its terms must be complied with.

2. Unambiguous Language: The language in Article 3, Section 3.1 is clear and unambiguous. It is therefore enforced to give effect to the intent of the parties.

3. Violation Established: The preponderance of evidence demonstrated that the Wilkeys were operating a business from their unit. The Wilkeys’ own admission that two employees drive to and park at the unit to conduct business was sufficient to prove that their business “is creating both traffic and parking.”

4. Violation is Absolute: The ALJ noted there is no requirement in the CC&Rs that the traffic or parking must cause a separate violation or complaint. The mere fact that the business creates traffic and parking is sufficient to trigger the prohibition.

5. Finding of Violation: Based on the evidence, the Wilkeys are in violation of CC&R Article 3, Section 3.1.

6. Penalty Authority: Under ARIZ. REV. STAT. § 32-2199.02, the ALJ has the authority to order compliance and levy a civil penalty. A penalty of $500.00 was deemed appropriate given the unambiguous nature of the violation.

7. Filing Fee Denial: The Association’s request for a refund of its filing fee was denied, as it cited no authority showing this was within the tribunal’s power.

Final Order

Based on the findings of fact and conclusions of law, the Administrative Law Judge issued the following orders to Respondents Layne C. Wilkey and Devin E. Wilkey:

• Cease Business Operations: Within thirty-five (35) days of the effective date of the Order, the Respondents must comply with CC&R Article 3, section 3.1 by ceasing business operations at 720 E. North Lane, Unit 1 (Lot 50), Phoenix, Arizona.

• Pay Civil Penalty: Within sixty (60) days of the effective date of the Order, the Respondents must pay a civil penalty of $500.00 to the Department of Real Estate.

• Rehearing Notice: This order is binding unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.


Pointe Tapatio Community Association vs. Lanye C. and Devin E. Wilkey

Posted on by

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)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 138 P.3d 1210 (App. 2006)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. section 41-1092.09

Analytics Highlights

Topics: HOA, CC&Rs, Business Use, Home Business, Parking, Traffic, Civil Penalty
Additional Citations:

  • 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)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 138 P.3d 1210 (App. 2006)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. section 41-1092.09

Audio Overview

Decision Documents

19F-H1919044-REL Decision – 706518.pdf

Uploaded 2025-10-09T03:34:04 (36.5 KB)

19F-H1919044-REL Decision – 706560.pdf

Uploaded 2025-10-09T03:34:04 (108.8 KB)





Briefing Doc – 19F-H1919044-REL


Administrative Law Judge Decision Briefing: Pointe Tapatio Community Association v. Wilkey

Executive Summary

This briefing synthesizes the findings and decision in case number 19F-H1919044-REL, wherein the Pointe Tapatio Community Association petitioned against residents Lanye C. and Devin E. Wilkey for violating community covenants. The Administrative Law Judge (ALJ) found conclusively in favor of the petitioner, determining that the Wilkeys were operating a business from their residential unit in direct violation of the association’s Covenants, Conditions, and Restrictions (CC&Rs).

The core of the violation centered on CC&R Article 3, Section 3.1, which prohibits any non-residential use that “creates traffic [or] parking.” The Wilkeys acknowledged that two employees of their payroll processing company, Devau Human Resources, regularly commuted to and worked from the unit, thereby creating both traffic and parking. This admission was sufficient to establish a clear and unambiguous breach of the covenant.

The respondents’ primary defense—that they had received verbal permission from a former property manager in 2009—was found to be unsubstantiated and insufficient. The ALJ ordered the Wilkeys to cease all business operations at the residence within 35 days and to pay a civil penalty of $500.00 to the Department of Real Estate within 60 days.

Case Overview

Case Number

19F-H1919044-REL

Petitioner

Pointe Tapatio Community Association

Respondents

Lanye C. Wilkey and Devin E. Wilkey

Hearing Date

April 26, 2019

Decision Date

May 7, 2019

Presiding Judge

Thomas Shedden, Administrative Law Judge

Location

Office of Administrative Hearings, Phoenix, Arizona

Allegation and Governing Rule

The Pointe Tapatio Community Association (Petitioner) alleged that Lanye C. Wilkey and Devin E. Wilkey (Respondents) were in violation of the community’s CC&Rs by using their property at 720 E. North Lane, Unit 1, as an office for their business, rather than exclusively as a residence.

The specific rule cited was CC&Rs Article 3, Section 3.1, which states:

“Residential. Each Residence shall be used, improved, and devoted exclusively to first class residential use, and no gainful occupation, profession, trade, business, religion, or other non-residential use which creates traffic [or] parking … shall be conducted from any Residence [or part thereof.]”

The association requested an order for the Wilkeys to abide by the CC&Rs, the imposition of a civil penalty, and a refund of its filing fee.

Key Findings of Fact

The Business Operation

• Business Entity: The Wilkeys, who are mother and son, co-own and operate Devau Human Resources, a payroll processing company. The business had previously operated from a commercial location before moving to the residential unit in late 2009.

• On-Site Employees: The Wilkeys acknowledged that two employees of Devau Human Resources drive to the unit to work.

◦ One employee works Monday through Thursday, from 9:30 a.m. to 4:00 p.m.

◦ A second employee works Monday through Friday, from 9:30 a.m. to 5:00 p.m.

• Parking and Traffic: It was established that these employees at times park on the community’s streets, thereby creating both traffic and parking related to the business.

• Public Presence: Devau Human Resources’ website lists the E. North Lane address (as a mailing address only) and advertises office hours of 9:00 a.m. to 5:00 p.m., Monday through Friday. Google Maps also shows the business operating from this address.

• Admissions: Ms. Wilkey acknowledged during testimony that they consider the unit to be an office.

• Client Contact: The business does not have clients or customers come to the unit. Mail for the business is received at the unit.

The Respondents’ Defense

• Claim of Permission: The Wilkeys asserted that they received permission to move the business into the unit in 2009 from the property manager at the time, Howard Flisser.

• Lack of Evidence: The respondents acknowledged they had no written confirmation of this permission. Their belief was based on second- and third-hand information.

◦ Ms. Wilkey testified that she asked her husband (since deceased) if they could operate from the unit, who then asked a salesperson, who in turn allegedly asked Mr. Flisser and relayed that it was permissible.

◦ Mr. Wilkey testified that he believed they had permission because his father would not have taken the risk of moving the business without it.

• Claim of Residency: Mr. Wilkey testified that he considers the unit to be one of his two primary residences. However, when asked by attorneys for both parties how often he stayed there, he did not provide a responsive answer.

The Association’s Rebuttal and Position

• Timeline of Action: The Association sent a letter to the Wilkeys on August 8, 2018, informing them they were out of compliance and must cease business operations by August 31, 2018. The official petition was filed with the Department of Real Estate on January 17, 2019.

• Manager’s Testimony: Association board member Paula Duistermars testified that she and the association’s attorney had spoken to Howard Flisser a few days before the hearing. In that conversation, Mr. Flisser stated he could not recall giving permission and had volunteered twice that he “never gave permission for Devau to operate out of the unit.”

• Manager’s Authority: Ms. Duistermars also testified that Mr. Flisser, as property manager, did not have the authority to grant such permission; only the Association’s Board could do so.

• Permitted Businesses: The Association does allow certain home-based businesses that do not generate traffic or parking, such as telecommuting and teaching online classes. These do not require explicit Board permission.

• Origin of Complaint: The Board became aware of the Wilkeys’ business operation when another resident brought the issue to its attention. Ms. Duistermars was unaware of any specific complaints filed against the Wilkeys regarding traffic, parking, or noise.

Conclusions of Law and Rationale

The ALJ’s decision was based on the standard of a “preponderance of the evidence.” The core legal conclusions were as follows:

1. CC&Rs as a Binding Contract: The CC&Rs constitute a contract between the parties, and its terms must be complied with.

2. Unambiguous Language: The language in Article 3, Section 3.1 is clear and unambiguous. It is therefore enforced to give effect to the intent of the parties.

3. Violation Established: The preponderance of evidence demonstrated that the Wilkeys were operating a business from their unit. The Wilkeys’ own admission that two employees drive to and park at the unit to conduct business was sufficient to prove that their business “is creating both traffic and parking.”

4. Violation is Absolute: The ALJ noted there is no requirement in the CC&Rs that the traffic or parking must cause a separate violation or complaint. The mere fact that the business creates traffic and parking is sufficient to trigger the prohibition.

5. Finding of Violation: Based on the evidence, the Wilkeys are in violation of CC&R Article 3, Section 3.1.

6. Penalty Authority: Under ARIZ. REV. STAT. § 32-2199.02, the ALJ has the authority to order compliance and levy a civil penalty. A penalty of $500.00 was deemed appropriate given the unambiguous nature of the violation.

7. Filing Fee Denial: The Association’s request for a refund of its filing fee was denied, as it cited no authority showing this was within the tribunal’s power.

Final Order

Based on the findings of fact and conclusions of law, the Administrative Law Judge issued the following orders to Respondents Layne C. Wilkey and Devin E. Wilkey:

• Cease Business Operations: Within thirty-five (35) days of the effective date of the Order, the Respondents must comply with CC&R Article 3, section 3.1 by ceasing business operations at 720 E. North Lane, Unit 1 (Lot 50), Phoenix, Arizona.

• Pay Civil Penalty: Within sixty (60) days of the effective date of the Order, the Respondents must pay a civil penalty of $500.00 to the Department of Real Estate.

• Rehearing Notice: This order is binding unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.


Rogelio A. Garcia vs. Villagio at Tempe Homeowners

Posted on by

Case Summary

Case ID 19F-H1918009-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-03-04
Administrative Law Judge Velva Moses-Thompson
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Rogelio A. Garcia Counsel —
Respondent Villagio at Tempe Homeowners Association Counsel Nathan Tennyson

Alleged Violations

ARIZ. REV. STAT. section 33-1242

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that Petitioner Rogelio A. Garcia failed to prove by a preponderance of the evidence that Respondent Villagio at Tempe Homeowners Association violated ARIZ. REV. STAT. section 33-1242 regarding procedures for notices of violation. Respondent was deemed the prevailing party.

Why this result: Petitioner failed to meet his burden of proof. The HOA was not required to provide the requested information because Petitioner did not respond by certified mail within 21 calendar days. The HOA also provided the process for contesting the notice, negating the requirement to inform the Petitioner of the option to petition for an administrative hearing.

Key Issues & Findings

Alleged violation of statutory notice requirements for property violations.

Petitioner Rogelio A. Garcia alleged that Respondent Villagio at Tempe Homeowners Association violated A.R.S. § 33-1242. The ALJ found that because Mr. Garcia did not submit a written response by certified mail within twenty-one days, Villagio was not required to provide the information required under A.R.S. § 33-1242(C), such as the observer's name. Since Villagio notified Mr. Garcia of the appeal process in the notices, they were not required to provide notice of the right to petition for an administrative hearing.

Orders: Mr. Garcia’s petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. section 33-1242
  • ARIZ. REV. STAT. section 32-2199.01
  • ARIZ. REV. STAT. section 32-2199.02

Analytics Highlights

Topics: HOA, Statute Violation, Notice Procedure, A.R.S. 33-1242, Rehearing
Additional Citations:

  • ARIZ. REV. STAT. section 33-1242
  • ARIZ. REV. STAT. section 32-2199.01
  • ARIZ. REV. STAT. section 32-2199.02
  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119

Audio Overview

Decision Documents

19F-H1918009-REL-RHG Decision – 692638.pdf

Uploaded 2025-10-08T07:07:03 (89.4 KB)





Briefing Doc – 19F-H1918009-REL-RHG


Administrative Hearing Brief: Garcia v. Villagio at Tempe Homeowners Association

Executive Summary

This document synthesizes the findings from two administrative law hearings concerning a dispute between homeowner Rogelio A. Garcia (Petitioner) and the Villagio at Tempe Homeowners Association (Respondent). The core of the dispute was Mr. Garcia’s allegation that the HOA violated Arizona Revised Statute (A.R.S.) § 33-1242 in its handling of a violation notice for an improper short-term rental.

The Administrative Law Judge (ALJ) dismissed Mr. Garcia’s petition in both an initial hearing on October 30, 2018, and a subsequent rehearing on February 12, 2019. The rulings consistently found that Mr. Garcia failed to meet his burden of proof.

The central conclusion of the ALJ was that the statutory protections Mr. Garcia claimed he was denied under A.R.S. § 33-1242 are contingent upon the homeowner first taking a specific action: responding to a violation notice in writing via certified mail within 21 calendar days. It was undisputed in both hearings that Mr. Garcia did not take this step. Consequently, the HOA’s statutory obligations to provide the name of the violation’s observer and other specific information were never triggered. Furthermore, because the HOA’s violation notices included instructions for its own internal appeal process, it was not required by statute to inform Mr. Garcia of his option to petition for a separate administrative hearing.

Case Background and Chronology

The case centers on a series of violation notices sent by the Villagio at Tempe Homeowners Association to unit owner Rogelio A. Garcia concerning the use of his property. Mr. Garcia subsequently petitioned the Arizona Department of Real Estate, alleging procedural violations by the HOA.

March 8, 2018

Villagio sends Mr. Garcia a letter alleging his unit is being rented in violation of short-term lease provisions in the CC&Rs.

March 22, 2018

Villagio sends a second notice, indicating a $1,000 fine has been posted to Mr. Garcia’s account for the ongoing violation.

April 5, 2018

Villagio sends a third notice, indicating a $2,000 fine has been posted to his account.

August 17, 2018

Mr. Garcia files a petition with the Arizona Department of Real Estate alleging Villagio violated A.R.S. § 33-1242.

October 30, 2018

The initial evidentiary hearing is held before Administrative Law Judge Velva Moses-Thompson.

November 19, 2018

The ALJ issues a decision dismissing Mr. Garcia’s petition.

January 3, 2019

The Arizona Department of Real Estate issues an order for a rehearing of the matter at Mr. Garcia’s request.

February 12, 2019

A rehearing is held, with testimony from Mr. Garcia and Tom Gordon, Villagio’s Community Manager.

March 4, 2019

The ALJ issues a final decision, again dismissing Mr. Garcia’s petition and affirming Villagio as the prevailing party. The order is made binding on the parties.

Petitioner’s Arguments (Rogelio A. Garcia)

Across both hearings, Mr. Garcia maintained that Villagio violated the procedural requirements of A.R.S. § 33-1242. His specific arguments included:

• Failure to Provide Observer’s Name: Villagio did not provide the first and last name of the person or persons who observed the alleged short-term rental violation.

• Denial of Administrative Hearing Notice: The HOA failed to provide written notice of his option to petition for an administrative hearing with the state real estate department.

• Denial of Response Opportunity: Mr. Garcia contended that Villagio effectively prevented him from responding via certified mail within the 21-day statutory window. He based this claim on two points:

◦ The HOA issued a second notice and a fine only 14 days after the first notice, creating confusion and pressure that precluded a 21-day response.

◦ The notices included the phrase, “Please bring this issue into compliance within 10 days of this notice,” which he interpreted as the operative deadline, superseding the 21-day statutory period.

• In his petition, he stated the violation letter “did not allow for home owner to respond to violation by certified letter within 21 calendar days after the date of the notice.”

Respondent’s Arguments (Villagio at Tempe HOA)

Villagio’s defense, presented by Nathan Tennyson, Esq., centered on a direct interpretation of the statute and Mr. Garcia’s failure to adhere to its requirements.

• Petitioner’s Inaction as the Decisive Factor: Villagio’s primary argument was that Mr. Garcia never took the necessary step to trigger the protections of A.R.S. § 33-1242(C). The statute requires the homeowner to first send a written response via certified mail within 21 days. As Mr. Garcia did not do this, Villagio was under no obligation to provide the observer’s name or the other detailed information outlined in that subsection.

• Sufficiency of Internal Appeal Process: The HOA argued it was exempt from the requirement to provide notice of an administrative hearing because its violation letters fulfilled the statute’s alternative. The letters provided a clear process for contesting the notice, directing Mr. Garcia to a website (http://www.hoacompliance.com/Apoeals) to file an appeal with the Board of Directors.

• Statutory Inapplicability (Argument from Rehearing): During the rehearing, Villagio introduced a new argument that A.R.S. § 33-1242 was not applicable to the dispute at all. They contended the statute addresses violations related to the condition of a property, whereas Mr. Garcia’s violation was a matter of property use (i.e., short-term renting).

• No Prevention of Response: Villagio’s community manager, Tom Gordon, testified that the HOA does not restrict homeowners from responding to notices within the 21-day period. Mr. Garcia also admitted under cross-examination that no court order had prohibited him from sending a response.

Administrative Law Judge’s Findings and Rulings

The Administrative Law Judge (ALJ) sided with the Respondent in both decisions, dismissing the petition based on a strict interpretation of the law and the evidence presented.

Burden of Proof

The ALJ established in both rulings that Mr. Garcia, as the petitioner, bore the burden of proving the alleged violation by a “preponderance of the evidence.” This standard requires evidence that is of greater weight or more convincing than the evidence offered in opposition to it.

Interpretation and Application of A.R.S. § 33-1242

The decisions hinged on a procedural reading of the statute:

1. Response Requirement is a Prerequisite: The ALJ found that the obligations for an HOA under subsection (C) of the statute—including providing the observer’s name, the date of the violation, and the specific rule violated—are expressly conditioned on the unit owner first providing a written response via certified mail within 21 days as stipulated in subsection (B).

2. Internal Appeal Process Satisfies Notice Requirement: The ALJ concluded that under subsection (D), an HOA is only required to provide notice of the option for a state administrative hearing if it has not already provided the process the unit owner must follow to contest the notice.

Rulings and Final Disposition

Based on this legal framework, the ALJ made the following conclusive findings:

• Petitioner Failed to Act: It was undisputed that Mr. Garcia did not respond in writing via certified mail to any of the three notices within the 21-day period. This failure meant Villagio’s statutory duty to provide the observer’s name was never activated.

• No Evidence of Prevention: Mr. Garcia failed to provide evidence showing how the issuance of subsequent notices legally prevented him from responding to the initial notice within its 21-day window. The ALJ found his belief that he only had 10 days was a misinterpretation and did not constitute prevention by the HOA.

• HOA Fulfilled Its Obligation: Villagio’s notices included instructions for contesting the violation through its own internal process. By doing so, Villagio satisfied the requirements of A.R.S. § 33-1242(D) and was therefore not obligated to inform Mr. Garcia of the option to petition for a separate administrative hearing.

• Petition Dismissed: Because Mr. Garcia failed to meet his burden of proof to establish a violation of A.R.S. § 33-1242, his petition was ordered dismissed in both the initial and rehearing decisions. The March 4, 2019, order was deemed binding on the parties, with any further appeal required to be filed with the superior court.


Rogelio A. Garcia vs. Villagio at Tempe Homeowners

Posted on by

Case Summary

Case ID 19F-H1918009-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-03-04
Administrative Law Judge Velva Moses-Thompson
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Rogelio A. Garcia Counsel —
Respondent Villagio at Tempe Homeowners Association Counsel Nathan Tennyson

Alleged Violations

ARIZ. REV. STAT. section 33-1242

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that Petitioner Rogelio A. Garcia failed to prove by a preponderance of the evidence that Respondent Villagio at Tempe Homeowners Association violated ARIZ. REV. STAT. section 33-1242 regarding procedures for notices of violation. Respondent was deemed the prevailing party.

Why this result: Petitioner failed to meet his burden of proof. The HOA was not required to provide the requested information because Petitioner did not respond by certified mail within 21 calendar days. The HOA also provided the process for contesting the notice, negating the requirement to inform the Petitioner of the option to petition for an administrative hearing.

Key Issues & Findings

Alleged violation of statutory notice requirements for property violations.

Petitioner Rogelio A. Garcia alleged that Respondent Villagio at Tempe Homeowners Association violated A.R.S. § 33-1242. The ALJ found that because Mr. Garcia did not submit a written response by certified mail within twenty-one days, Villagio was not required to provide the information required under A.R.S. § 33-1242(C), such as the observer's name. Since Villagio notified Mr. Garcia of the appeal process in the notices, they were not required to provide notice of the right to petition for an administrative hearing.

Orders: Mr. Garcia’s petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. section 33-1242
  • ARIZ. REV. STAT. section 32-2199.01
  • ARIZ. REV. STAT. section 32-2199.02

Analytics Highlights

Topics: HOA, Statute Violation, Notice Procedure, A.R.S. 33-1242, Rehearing
Additional Citations:

  • ARIZ. REV. STAT. section 33-1242
  • ARIZ. REV. STAT. section 32-2199.01
  • ARIZ. REV. STAT. section 32-2199.02
  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119

Audio Overview

Decision Documents

19F-H1918009-REL-RHG Decision – 692638.pdf

Uploaded 2025-10-09T03:33:25 (89.4 KB)





Briefing Doc – 19F-H1918009-REL-RHG


Administrative Hearing Brief: Garcia v. Villagio at Tempe Homeowners Association

Executive Summary

This document synthesizes the findings from two administrative law hearings concerning a dispute between homeowner Rogelio A. Garcia (Petitioner) and the Villagio at Tempe Homeowners Association (Respondent). The core of the dispute was Mr. Garcia’s allegation that the HOA violated Arizona Revised Statute (A.R.S.) § 33-1242 in its handling of a violation notice for an improper short-term rental.

The Administrative Law Judge (ALJ) dismissed Mr. Garcia’s petition in both an initial hearing on October 30, 2018, and a subsequent rehearing on February 12, 2019. The rulings consistently found that Mr. Garcia failed to meet his burden of proof.

The central conclusion of the ALJ was that the statutory protections Mr. Garcia claimed he was denied under A.R.S. § 33-1242 are contingent upon the homeowner first taking a specific action: responding to a violation notice in writing via certified mail within 21 calendar days. It was undisputed in both hearings that Mr. Garcia did not take this step. Consequently, the HOA’s statutory obligations to provide the name of the violation’s observer and other specific information were never triggered. Furthermore, because the HOA’s violation notices included instructions for its own internal appeal process, it was not required by statute to inform Mr. Garcia of his option to petition for a separate administrative hearing.

Case Background and Chronology

The case centers on a series of violation notices sent by the Villagio at Tempe Homeowners Association to unit owner Rogelio A. Garcia concerning the use of his property. Mr. Garcia subsequently petitioned the Arizona Department of Real Estate, alleging procedural violations by the HOA.

March 8, 2018

Villagio sends Mr. Garcia a letter alleging his unit is being rented in violation of short-term lease provisions in the CC&Rs.

March 22, 2018

Villagio sends a second notice, indicating a $1,000 fine has been posted to Mr. Garcia’s account for the ongoing violation.

April 5, 2018

Villagio sends a third notice, indicating a $2,000 fine has been posted to his account.

August 17, 2018

Mr. Garcia files a petition with the Arizona Department of Real Estate alleging Villagio violated A.R.S. § 33-1242.

October 30, 2018

The initial evidentiary hearing is held before Administrative Law Judge Velva Moses-Thompson.

November 19, 2018

The ALJ issues a decision dismissing Mr. Garcia’s petition.

January 3, 2019

The Arizona Department of Real Estate issues an order for a rehearing of the matter at Mr. Garcia’s request.

February 12, 2019

A rehearing is held, with testimony from Mr. Garcia and Tom Gordon, Villagio’s Community Manager.

March 4, 2019

The ALJ issues a final decision, again dismissing Mr. Garcia’s petition and affirming Villagio as the prevailing party. The order is made binding on the parties.

Petitioner’s Arguments (Rogelio A. Garcia)

Across both hearings, Mr. Garcia maintained that Villagio violated the procedural requirements of A.R.S. § 33-1242. His specific arguments included:

• Failure to Provide Observer’s Name: Villagio did not provide the first and last name of the person or persons who observed the alleged short-term rental violation.

• Denial of Administrative Hearing Notice: The HOA failed to provide written notice of his option to petition for an administrative hearing with the state real estate department.

• Denial of Response Opportunity: Mr. Garcia contended that Villagio effectively prevented him from responding via certified mail within the 21-day statutory window. He based this claim on two points:

◦ The HOA issued a second notice and a fine only 14 days after the first notice, creating confusion and pressure that precluded a 21-day response.

◦ The notices included the phrase, “Please bring this issue into compliance within 10 days of this notice,” which he interpreted as the operative deadline, superseding the 21-day statutory period.

• In his petition, he stated the violation letter “did not allow for home owner to respond to violation by certified letter within 21 calendar days after the date of the notice.”

Respondent’s Arguments (Villagio at Tempe HOA)

Villagio’s defense, presented by Nathan Tennyson, Esq., centered on a direct interpretation of the statute and Mr. Garcia’s failure to adhere to its requirements.

• Petitioner’s Inaction as the Decisive Factor: Villagio’s primary argument was that Mr. Garcia never took the necessary step to trigger the protections of A.R.S. § 33-1242(C). The statute requires the homeowner to first send a written response via certified mail within 21 days. As Mr. Garcia did not do this, Villagio was under no obligation to provide the observer’s name or the other detailed information outlined in that subsection.

• Sufficiency of Internal Appeal Process: The HOA argued it was exempt from the requirement to provide notice of an administrative hearing because its violation letters fulfilled the statute’s alternative. The letters provided a clear process for contesting the notice, directing Mr. Garcia to a website (http://www.hoacompliance.com/Apoeals) to file an appeal with the Board of Directors.

• Statutory Inapplicability (Argument from Rehearing): During the rehearing, Villagio introduced a new argument that A.R.S. § 33-1242 was not applicable to the dispute at all. They contended the statute addresses violations related to the condition of a property, whereas Mr. Garcia’s violation was a matter of property use (i.e., short-term renting).

• No Prevention of Response: Villagio’s community manager, Tom Gordon, testified that the HOA does not restrict homeowners from responding to notices within the 21-day period. Mr. Garcia also admitted under cross-examination that no court order had prohibited him from sending a response.

Administrative Law Judge’s Findings and Rulings

The Administrative Law Judge (ALJ) sided with the Respondent in both decisions, dismissing the petition based on a strict interpretation of the law and the evidence presented.

Burden of Proof

The ALJ established in both rulings that Mr. Garcia, as the petitioner, bore the burden of proving the alleged violation by a “preponderance of the evidence.” This standard requires evidence that is of greater weight or more convincing than the evidence offered in opposition to it.

Interpretation and Application of A.R.S. § 33-1242

The decisions hinged on a procedural reading of the statute:

1. Response Requirement is a Prerequisite: The ALJ found that the obligations for an HOA under subsection (C) of the statute—including providing the observer’s name, the date of the violation, and the specific rule violated—are expressly conditioned on the unit owner first providing a written response via certified mail within 21 days as stipulated in subsection (B).

2. Internal Appeal Process Satisfies Notice Requirement: The ALJ concluded that under subsection (D), an HOA is only required to provide notice of the option for a state administrative hearing if it has not already provided the process the unit owner must follow to contest the notice.

Rulings and Final Disposition

Based on this legal framework, the ALJ made the following conclusive findings:

• Petitioner Failed to Act: It was undisputed that Mr. Garcia did not respond in writing via certified mail to any of the three notices within the 21-day period. This failure meant Villagio’s statutory duty to provide the observer’s name was never activated.

• No Evidence of Prevention: Mr. Garcia failed to provide evidence showing how the issuance of subsequent notices legally prevented him from responding to the initial notice within its 21-day window. The ALJ found his belief that he only had 10 days was a misinterpretation and did not constitute prevention by the HOA.

• HOA Fulfilled Its Obligation: Villagio’s notices included instructions for contesting the violation through its own internal process. By doing so, Villagio satisfied the requirements of A.R.S. § 33-1242(D) and was therefore not obligated to inform Mr. Garcia of the option to petition for a separate administrative hearing.

• Petition Dismissed: Because Mr. Garcia failed to meet his burden of proof to establish a violation of A.R.S. § 33-1242, his petition was ordered dismissed in both the initial and rehearing decisions. The March 4, 2019, order was deemed binding on the parties, with any further appeal required to be filed with the superior court.


Brad W. Stevens vs. Mogollon Airpark, Inc.

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Case Summary

Case ID 18F-H1818054-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-03-01
Administrative Law Judge Thomas Shedden
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Brad W. Stevens Counsel —
Respondent Mogollon Airpark, Inc. Counsel Greg Stein, Esq.

Alleged Violations

ARIZ. REV. STAT. section 33-1803(A)

Outcome Summary

The Administrative Law Judge dismissed the petition, ruling that the Petitioner failed to meet the burden of proof that the HOA violated ARS § 33-1803(A). The increase in the regular assessment (14.1%) was below the statutory 20% limit, and the overall increase included a special assessment which the statute does not cover.

Why this result: The Petitioner's definition of 'regular assessment' was rejected as not supported by statutory construction principles, and the issue was limited to the definition and application of ARS § 33-1803(A).

Key Issues & Findings

Whether the HOA violated ARS § 33-1803(A) by increasing the regular assessment more than 20%.

Petitioner alleged that the HOA's total assessment increase of $325 (which was 39.4% over the previous assessment of $825) constituted an unlawful increase of the 'regular assessment' under ARS § 33-1803(A). The HOA argued the increase to the 'regular assessment' was only 14.1% ($116 increase), and the remaining $209 was a separate, one-time assessment.

Orders: Petitioner Brad W. Stevens’s petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. section 33-1803(A)
  • ARIZ. ADMIN. CODE § R2-19-119
  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. REV. STAT. section 33-1806
  • Northwest Fire District v. U.S. Home of Arizona, 215 Ariz. 492 (2007)
  • Gutierrez v. Industrial Commission of Arizona
  • State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
  • Deer Valley, v. Houser, 214 Ariz. 293, 296, 152 P.3d 490, 493 (2007)
  • McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Analytics Highlights

Topics: HOA Assessment, Statutory Interpretation, Regular Assessment, Special Assessment, ARS 33-1803(A)
Additional Citations:

  • ARIZ. REV. STAT. section 33-1803(A)
  • ARIZ. ADMIN. CODE § R2-19-119
  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. REV. STAT. section 33-1806
  • Northwest Fire District v. U.S. Home of Arizona, 215 Ariz. 492 (2007)
  • Gutierrez v. Industrial Commission of Arizona
  • State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
  • Deer Valley, v. Houser, 214 Ariz. 293, 296, 152 P.3d 490, 493 (2007)
  • McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Audio Overview

Decision Documents

18F-H1818054-REL-RHG Decision – 692388.pdf

Uploaded 2025-10-08T07:06:21 (102.8 KB)





Briefing Doc – 18F-H1818054-REL-RHG


Briefing Document: Stevens v. Mogollon Airpark, Inc. (Case No. 18F-H1818054-REL-RHG)

Executive Summary

This document summarizes the Administrative Law Judge (ALJ) Decision in the matter of Brad W. Stevens versus Mogollon Airpark, Inc., a case centered on the legality of a homeowner association (HOA) assessment increase. The ALJ, Thomas Shedden, ultimately dismissed the petition filed by Mr. Stevens, finding he failed to prove by a preponderance of the evidence that Mogollon Airpark violated Arizona state law.

The core of the dispute was a $325 increase to the annual assessment for 2018, which represented a 39.4% increase over the previous year’s $825 fee. The petitioner alleged this violated ARIZ. REV. STAT. § 33-1803(A), which prohibits HOAs from increasing a “regular assessment” by more than 20% without member approval. The respondent, Mogollon Airpark, argued the increase was composed of two distinct parts: a 14.1% ($116) increase to the regular assessment to cover a budget shortfall, and a separate $209 one-time “special assessment” to replenish a reserve fund.

The ALJ’s decision rested on a critical interpretation of statutory language, concluding that “regular assessments” and “special assessments” are legally distinct categories. The judge rejected the petitioner’s argument that “regular” refers to the process of an assessment rather than its type, deeming this interpretation contrary to principles of statutory construction and nonsensical. Furthermore, the judge found the petitioner’s legal citations to be inapplicable and confirmed that the scope of the hearing was limited strictly to the alleged violation of the 20% rule, not the HOA’s general authority to levy special assessments.

Case Background and Procedural History

• Parties:

◦ Petitioner: Brad W. Stevens

◦ Respondent: Mogollon Airpark, Inc. (HOA)

• Adjudicating Body: Arizona Office of Administrative Hearings, on behalf of the Arizona Department of Real Estate.

• Presiding Judge: Administrative Law Judge Thomas Shedden.

• Timeline:

◦ June 7, 2018: Mr. Stevens files a single-issue petition with the Department of Real Estate.

◦ September 28, 2018: An initial hearing is conducted on the matter, consolidated with two others.

◦ January 2, 2019: The Department of Real Estate issues a Notice of Rehearing.

◦ February 11, 2019: The rehearing is conducted.

◦ March 1, 2019: The Administrative Law Judge Decision is issued, dismissing the petition.

The matter came before the Office of Administrative Hearings for a rehearing after Mr. Stevens alleged errors of law and an abuse of discretion in the original hearing’s decision.

The Core Dispute: The 2018 Assessment Increase

The central facts of the case revolve around a decision made at a Mogollon Airpark board meeting in November 2017. To address a shortage in its operating budget and to replenish approximately $53,000 borrowed from its reserve fund, the Board approved a two-part increase to its annual fees.

Assessment Component

Previous Year (2017)

2018 Increase

Justification

Percentage Increase

Regular Assessment

+ $116

Cover operating budget shortfall

Special Assessment

+ $209

Replenish reserve fund

Total Assessment

+ $325

Total for 2018

This total 39.4% increase formed the basis of Mr. Stevens’s legal challenge under A.R.S. § 33-1803(A), which limits increases to “regular assessments” to 20% over the preceding fiscal year.

Analysis of Arguments

Petitioner’s Position (Brad W. Stevens)

Mr. Stevens’s case was built on the assertion that the entire $325 increase constituted a single “regular assessment” and was therefore illegal. His key arguments were:

• Definition of “Regular”: He contended that “regular” in the statute refers to the process by which an assessment is created—i.e., one that is “according to rule.” He argued that it does not denote a type of assessment (e.g., recurring vs. one-time).

• Lack of Authority for Special Assessments: Mr. Stevens argued that Mogollon Airpark has no authority to issue special assessments. Therefore, any assessment it imposes, regardless of its label, must legally be considered a “regular assessment.”

• Legal Precedent: He cited Northwest Fire District v. U.S. Home of Arizona to define a “special assessment,” arguing that the $209 charge did not qualify because he received no “particularized benefit” as required by that case. He also presented definitions from Black’s Law Dictionary.

Respondent’s Position (Mogollon Airpark, Inc.)

Mogollon Airpark’s defense was straightforward and relied on the distinction between the two components of the assessment increase:

• Statutory Limitation: The respondent argued that A.R.S. § 33-1803(A) applies only to “regular assessments.”

• Compliance with Statute: The increase to the regular assessment was $116, a 14.1% rise over the previous year’s $825 fee. This amount is well within the 20% statutory limit.

• Distinct Nature of Assessments: The $209 charge was a separate, one-time “special assessment” intended for a specific purpose (replenishing the reserve fund) and is not subject to the 20% limitation governing regular assessments.

Administrative Law Judge’s Findings and Conclusions

The ALJ systematically dismantled the petitioner’s arguments, finding they were not supported by evidence or principles of statutory construction.

Rejection of Petitioner’s Statutory Interpretation

• The ALJ found that Mr. Stevens’s definition of “regular” as referring to the assessment process was an insupportable interpretation. If all validly passed assessments were “regular,” the word “regular” in the statute would be “void, inert, redundant, or trivial.”

• To support this conclusion, the decision points to A.R.S. § 33-1806, where the legislature explicitly references “regular assessments” and “special assessment[s],” demonstrating a clear intent to treat them as different types of assessments.

• The judge characterized the petitioner’s logic as leading to a “nonsensical result.” Under Mr. Stevens’s reasoning, an unauthorized special assessment would become a valid regular assessment, a position deemed not to be a “sensible interpretation of the statute.” A more reasonable conclusion, the judge noted, would be that an unauthorized assessment is simply void.

Misapplication of Legal Precedent

• The petitioner’s reliance on Northwest Fire District was deemed “misplaced.” The judge clarified that this case applies to special taxing districts created under ARIZ. REV. STAT. Title 48, a legal framework that does not govern an HOA like Mogollon Airpark.

Scope of the Hearing and Burden of Proof

• The ALJ emphasized that the hearing was limited by the petitioner’s “single-issue petition.” The only question properly before the tribunal was whether A.R.S. § 33-1803(A) had been violated.

• Consequently, the broader question of whether Mogollon Airpark’s bylaws grant it the authority to impose special assessments was “not at issue.” This rendered the various definitions of “special assessment” offered by Mr. Stevens as having “no substantial probative value” to the case at hand.

• The final legal conclusion was that Mr. Stevens, who bore the burden of proof, failed to show by a “preponderance of the evidence” that Mogollon Airpark violated the statute.

Final Order and Disposition

Based on the findings and conclusions, the Administrative Law Judge ordered the following:

• Order: The petition of Brad W. Stevens is dismissed.

• Prevailing Party: Mogollon Airpark, Inc. is deemed the prevailing party.

• Binding Nature: The decision, issued as a result of a rehearing, is binding on the parties.

• Appeal Process: Any appeal must be filed for judicial review with the superior court within thirty-five days from the date the order was served.