Tag Archives: Gutierrez v. Industrial Commission of Arizona

Quail Creek Villas Association, Inc. v. Randall & Gisela White

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Case Summary

Case ID 23F-H042-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-05-09
Administrative Law Judge Jenna Clark
Outcome full
Filing Fees Refunded $500.00
Civil Penalties $100.00

Parties & Counsel

Petitioner Quail Creek Villas Association, Inc. Counsel Michael Shupe, Esq.
Respondent Randall & Gisela White Counsel —

Alleged Violations

CC&Rs Section 3(j)

Outcome Summary

The HOA's petition was granted. Respondents were found to have violated CC&Rs Section 3(j) by installing tile without approval and were ordered to comply with the CC&Rs, reimburse the $500 filing fee, and pay a $100 civil penalty.

Why this result: Respondents admitted to the alleged conduct and failed to establish a sufficient affirmative defense (incomplete CC&Rs) against the violation, as the recorded CC&Rs provided constructive notice of all provisions. Respondents' conduct during testimony was also considered a factor in aggravation.

Key Issues & Findings

Unauthorized exterior modification (tile installation)

Respondents permanently installed tile on their front porch entryway without obtaining prior written approval. The ALJ rejected the Respondents' defense regarding missing CC&R pages, noting the HOA sustained its burden of proving a community document violation by a preponderance of the evidence.

Orders: Respondents must henceforth abide by CC&Rs Section 3(j), reimburse the Petitioner $500.00 for the filing fee, and pay a $100.00 civil penalty to the Department.

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $100.00

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1805
  • Federoff v. Pioneer Title & Trust Co., 166 Ariz. 393 (1990)
  • Heritage Heights Home Owners Ass’n v. Esser, 115 Ariz. 330 (App. 1977)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • Flying Diamond Air Park LLC v. Minenberg, 215 Ariz. 44 (App. 2007)

Analytics Highlights

Topics: CC&R violation, Architectural Review Committee (ALC), exterior modification, tile installation, constructive notice, affirmative defense, HOA maintenance
Additional Citations:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 41-1092.09
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 33-1803
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • ARIZ. ADMIN. CODE R2-19-119
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
  • Arpaio v. Steinle, 201 Ariz. 353, 355 ¶ 5, 35 P.3d 114, 116 (App. 2001)
  • 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)
  • Federoff v. Pioneer Title & Trust Co., 166 Ariz. 393 (1990)
  • Heritage Heights Home Owners Ass’n v. Esser, 115 Ariz. 330 (App. 1977)
  • Flying Diamond Air Park LLC v. Minenberg, 215 Ariz. 44 (App. 2007)

Audio Overview

Decision Documents

23F-H042-REL Decision – 1048063.pdf

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23F-H042-REL Decision – 1055060.pdf

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James Iannuzo v. Moonrise at Starr Pass Community Association

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Case Summary

Case ID 22F-H2221014-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-12-30
Administrative Law Judge Thomas Shedden
Outcome partial
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner James Iannuzo Counsel —
Respondent Moonrise at Starr Pass Community Association Counsel Jason E. Smith

Alleged Violations

ARIZ. REV. STAT. section 33-1243(H)(4)

Outcome Summary

The Petitioner prevailed by showing the Association violated ARIZ. REV. STAT. section 33-1243. The Association was ordered to refund the $500.00 filing fee. Petitioner's requests for voiding election results, assessing a civil penalty, and appointing an administrator were denied.

Key Issues & Findings

Violation of statutory procedure for board member removal concerning ballot tabulation after deadline.

The Association violated the statute by tabulating ballots for a recall election at the August 19, 2021 meeting, as those ballots were only valid for the canceled June 30, 2021 special meeting.

Orders: Respondent must pay the Petitioner his filing fee of $500.00 within thirty days of the Order. Other requested remedies (voiding results, assessing civil penalty, appointing administrator) were denied.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1243
  • ARIZ. REV. STAT. § 33-1243(H)(4)
  • ARIZ. REV. STAT. § 33-1250(C)(3)

Analytics Highlights

Topics: HOA board recall, Ballot tabulation, Quorum dispute, Statutory violation, Filing fee refund
Additional Citations:

  • ARIZ. REV. STAT. § 33-1243
  • ARIZ. REV. STAT. § 33-1250
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. ADMIN. CODE § R2-19-119
  • Whitmer v. Hilton Casitas Homeowners Ass'n
  • Gutierrez v. Industrial Commission of Arizona
  • State v. McFall

Audio Overview

Decision Documents

22F-H2221014-REL Decision – 935534.pdf

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22F-H2221014-REL Decision – 945764.pdf

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22F-H2221014-REL Decision – 949683.pdf

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Clifford Burnes v. Saguaro Crest Homeowners Association, Inc.

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Case Summary

Case ID 22F-H2221010-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-12-09
Administrative Law Judge Tammy L. Eigenheer
Outcome full
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Clifford Burnes Counsel —
Respondent Saguaro Crest Homeowners Association, Inc. Counsel John T. Crotty

Alleged Violations

ARIZ. REV. STAT. § 33-1805

Outcome Summary

The ALJ granted the Petitioner's petition, finding the Respondent HOA violated A.R.S. § 33-1805 by requiring the Petitioner to inspect records before providing copies and failing to comply with the 10-day statutory deadline. The HOA was ordered to reimburse the Petitioner's $500.00 filing fee.

Key Issues & Findings

Failure to fulfill records request

Petitioner alleged the Association failed to fulfill his request for copies of records within the statutory 10-day period because the Association improperly required him to inspect the documents first. The ALJ found the Association violated A.R.S. § 33-1805, as the statute does not permit an HOA to mandate prior inspection before providing requested copies.

Orders: Petition granted. Respondent ordered to reimburse Petitioner's filing fee of $500.00 in certified funds and ordered to henceforth comply with ARIZ. REV. STAT. § 33-1805.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2), 32-2199.01(A), 32-2199.01(D), 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • ARIZ. ADMIN. CODE R2-19-119
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
  • Arpaio v. Steinle, 201 Ariz. 353, 355 ¶ 5, 35 P.3d 114, 116 (App. 2001)
  • 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)
  • ARIZ. REV. STAT. §32-2199.02(B)
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09

Analytics Highlights

Topics: HOA, Records Request, ARS 33-1805, Records Inspection, Timeliness, Filing Fee Refund
Additional Citations:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2), 32-2199.01(A), 32-2199.01(D), 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • ARIZ. ADMIN. CODE R2-19-119
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
  • Arpaio v. Steinle, 201 Ariz. 353, 355 ¶ 5, 35 P.3d 114, 116 (App. 2001)
  • 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)
  • ARIZ. REV. STAT. §32-2199.02(B)
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09

Audio Overview

Decision Documents

22F-H2221010-REL Decision – 930949.pdf

Uploaded 2025-10-09T03:38:11 (139.0 KB)

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.


Brad W. Stevens vs. Mogollon Airpark, Inc.

Posted on by

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.


Brad W. Stevens vs. Mogollon Airpark, Inc.

Posted on by

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 2025-10-09T03:33:09 (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.


James and Shawna Larson v. Tempe Gardens Townhouse Corp

Posted on by

Case Summary

Case ID 17F-H1717038-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2017-12-11
Administrative Law Judge Thomas Shedden
Outcome no_win
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner James and Shawna Larson Counsel Lisa M. Hanger
Respondent Tempe Gardens Townhouse Corporation Counsel Nathan Tennyson

Alleged Violations

A.R.S. § 33-1255(C); CC&R Sections 9 and 9(b)

Outcome Summary

The ALJ dismissed the Petitioners' complaint, ruling that the HOA acted reasonably and within its authority under the CC&Rs and A.R.S. § 33-1255(C) by requiring homeowners to remove their limited common element patio covers for necessary maintenance and requiring the homeowners to bear the associated cost.

Why this result: Petitioners failed to demonstrate that the Respondent HOA committed a violation of the condominium documents or statutes.

Key Issues & Findings

Authority of HOA to require removal of a limited common element (patio cover) for maintenance and allocation of associated costs.

Petitioners alleged the HOA violated CC&Rs by mandating the removal of their patio cover at their expense to facilitate building painting. The ALJ found the HOA's proposed plan was reasonable and authorized by CC&R Sections 9 and 9(b), and that Petitioners, under A.R.S. § 33-1255(C), must bear the cost of removing and reinstalling the limited common element.

Orders: Petitioners' petition is dismissed. Respondent Tempe Gardens Townhouse Corporation is deemed to be the prevailing party. Petitioners are responsible for the cost to remove and reinstall their patio cover.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1255(C)
  • CC&R Section 9
  • CC&R Section 9(b)
  • A.R.S. § 33-1212(4)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov

Analytics Highlights

Topics: HOA Authority, Limited Common Element, Maintenance Costs, CC&R Interpretation, Patio Cover Removal
Additional Citations:

  • A.R.S. § 32-2199
  • A.R.S. § 32-2199.02
  • A.R.S. § 33-1255(C)
  • A.R.S. § 33-1212(4)
  • A.R.S. § 33-1806(E)
  • Gutierrez v. Industrial Commission of Arizona
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov

Audio Overview

Decision Documents

17F-H1717038-REL-RHG Decision – 605540.pdf

Uploaded 2025-10-09T03:31:48 (105.0 KB)





Briefing Doc – 17F-H1717038-REL-RHG


Briefing on Larson v. Tempe Gardens Townhouse Corporation

Executive Summary

This briefing synthesizes the legal dispute between homeowners James and Shawna Larson and the Tempe Gardens Townhouse Corporation (the “Respondent” or “HOA”). The core conflict centered on the HOA’s directive that the Larsons remove their wooden patio cover at their own expense to facilitate a community-wide building repair and painting project.

The case progressed through two distinct phases. Initially, an Administrative Law Judge (ALJ) recommended dismissing the Larsons’ petition for a lack of a “justiciable controversy,” reasoning that the HOA had not yet acted on its threat to remove the patio cover, rendering the dispute speculative. However, the Commissioner of the Department of Real Estate rejected this recommendation, finding the matter was “ripe for adjudication,” and ordered a full hearing on the merits.

In the final decision, a second ALJ dismissed the Larsons’ petition and ruled in favor of the HOA. The judge found the HOA’s plan to be reasonable and necessary for the proper and safe completion of the project, based on credible testimony from the project manager. The decision affirmed the HOA’s authority under its CC&Rs to require the removal of the structure. Crucially, the ruling established that the patio cover is a “limited common element” under Arizona law. Consequently, pursuant to Arizona Revised Statutes, the homeowners (the Larsons) are exclusively responsible for all costs associated with it, including its removal and potential reinstallation.

Procedural History and Jurisdictional Rulings

Initial Petition and Dismissal Recommendation

On June 16, 2017, James and Shawna Larson filed a petition with the Department of Real Estate against their HOA, alleging a violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs). However, the initial filing did not specify which provisions had been violated.

Upon inquiry, the Petitioners’ counsel admitted via email that no specific provision of the CC&Rs had yet been violated. Instead, their concern was that section 10(a) would be violated if the HOA acted on its threat to forcibly remove their patio cover and charge them for the cost.

This led to the “ORDER RECOMMENDING DISMISSAL FOR LACK OF JUSTICIABLE CONTROVERSY,” issued on August 25, 2017, by Administrative Law Judge Suzanne Marwil. The key findings of this order were:

• Speculative Harm: The Judge found that the HOA’s actions “have not yet been undertaken and our [are] speculative at this juncture.”

• Lack of Jurisdiction: The order stated that the Office of Administrative Hearings’ jurisdiction, per A.R.S. § 32-2199, is limited to adjudicating existing violations of community documents, not potential future ones.

• Misunderstanding by Both Parties: The order noted, “Both parties fundamentally misunderstand the limits of this Tribunal’s jurisdiction.” The Petitioners were seeking a ruling on a future action, while the Respondent was urging the Tribunal to find the Petitioners had violated the CC&Rs, which was not the subject of the petition.

• Recommended Forum: The Judge suggested that the appropriate forum for the Petitioners would be a declaratory judgment action in superior court.

Rejection of Dismissal and Re-Hearing

On August 31, 2017, Judy Lowe, the Commissioner of the Department of Real Estate, issued an “ORDER REJECTING RECOMMENDATION OF DISMISSAL.”

• The Commissioner rejected the ALJ’s finding that the matter lacked a justiciable controversy.

• The order cited a letter from the Respondent dated June 1, 2017, which posed the question: “Is the presence of the awning a violation of the Association’s governing documents?”

• This question was deemed sufficient to make the matter “ripe for adjudication.”

• The Commissioner requested that the hearing be rescheduled for a ruling on the matter. A re-hearing was subsequently conducted on November 20, 2017, before Administrative Law Judge Thomas Shedden.

Analysis of the Merits of the Dispute

The re-hearing focused on the substantive conflict: whether the HOA had the authority to compel the Larsons to remove their patio cover at their own expense for the maintenance project.

Respondent’s (HOA) Case

The HOA, consisting of 169 units, initiated a project to make necessary repairs to its twenty-five buildings and then have them painted. The HOA’s position was based on the following points:

• Legal Authority: The HOA asserted its authority under sections 9 and 9(b) of its CC&Rs, which state that the HOA is responsible for maintaining building exteriors and that “Any cooperative action necessary or appropriate to the proper maintenance and upkeep of the… [building] exteriors… shall be taken by the [Respondent].”

• Project Necessity: The project manager, Wayne King, provided testimony that the HOA’s board deemed credible and reasonable.

◦ Safety: King stated that all five bidding contractors required the patio covers to be removed to ensure a safe work environment as mandated by the Arizona Department of Occupational Safety and Health (OSHA).

◦ Logistics: Standard scaffolding would not fit without removing the covers, commercial scaffolding would not provide full access, a forklift was not viable due to overhead power lines, and allowing painters to walk on homeowner patio covers was unsafe.

◦ Quality of Work: The project involved sanding, power washing, and patching before painting to “do the job right.” Many covers had been improperly flashed, causing damage to the buildings that needed repair.

◦ Warranty: The paint company would not provide a warranty for the project if individual homeowners, such as the Larsons, were permitted to paint their own units.

Petitioners’ (Larsons’) Case

The Larsons, who purchased their unit in 1999 with the wooden patio cover already in place, contested the HOA’s demands.

• Challenge to Authority: The Petitioners argued that the HOA had no legal authority to demand the removal of their patio cover.

• Unreasonable Cost: They asserted that the cost of removal and reinstallation was unreasonable, submitting two bids:

◦ One bid quoted $1,250 to remove and dispose of the cover and $3,980 to remove and rebuild it with new wood.

◦ A second bid quoted $5,975 to remove and then replace the structure.

• Proposed Alternative: In a letter dated May 19, 2017, the Larsons offered to have the back of their unit painted at their own expense.

• Compromise Offer: During the November 20, 2017 hearing, after hearing the project manager’s testimony, Ms. Larson offered that they would agree not to reinstall the patio cover if the HOA would pay for its removal.

Final Administrative Law Judge Decision

On December 11, 2017, ALJ Thomas Shedden issued a final decision dismissing the Larsons’ petition and finding in favor of the Respondent, Tempe Gardens Townhouse Corporation.

Key Findings and Conclusions of Law

Finding/Conclusion

Details

Standard of Review

The HOA’s decisions regarding maintenance and repair are given deference, provided they act reasonably.

Reasonableness of HOA Action

Based on the “credible testimony” of Wayne King, the Judge found that the HOA’s proposed plan for repairing and painting the buildings, which required the removal of patio covers, was reasonable.

HOA Authority

CC&R sections 9 and 9(b) were found to be “sufficient to show that Respondent has the authority to remove Petitioners’ patio to complete the painting work.”

Patio Cover Classification

The Petitioners’ patio cover was legally classified as a “limited common element” within the meaning of ARIZ. REV. STAT. section 33-1212(4).

Cost Responsibility

The central issue of payment was decided by statute. The Judge concluded that under a “reasonable reading of ARIZ. REV. STAT. section 33-1255(C),” any common expense associated with a limited common element “shall be assessed exclusively against the units benefitted.”

Final Order

Based on these findings, the Administrative Law Judge ordered the following:

“The evidence of record supports a conclusion that Respondent has authority to require Petitioners to remove their patio cover to allow the building to be properly and safely painted, and that Petitioners are responsible for the cost to remove the patio cover and the cost to reinstall it should they choose to do so.”

The final order was that the Petitioners’ petition be dismissed, and the Respondent, Tempe Gardens Townhouse Corporation, was deemed the prevailing party.


James and Shawna Larson v. Tempe Gardens Townhouse Corp

Posted on by

Case Summary

Case ID 17F-H1717038-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2017-12-11
Administrative Law Judge Thomas Shedden
Outcome no_win
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner James and Shawna Larson Counsel Lisa M. Hanger
Respondent Tempe Gardens Townhouse Corporation Counsel Nathan Tennyson

Alleged Violations

A.R.S. § 33-1255(C); CC&R Sections 9 and 9(b)

Outcome Summary

The ALJ dismissed the Petitioners' complaint, ruling that the HOA acted reasonably and within its authority under the CC&Rs and A.R.S. § 33-1255(C) by requiring homeowners to remove their limited common element patio covers for necessary maintenance and requiring the homeowners to bear the associated cost.

Why this result: Petitioners failed to demonstrate that the Respondent HOA committed a violation of the condominium documents or statutes.

Key Issues & Findings

Authority of HOA to require removal of a limited common element (patio cover) for maintenance and allocation of associated costs.

Petitioners alleged the HOA violated CC&Rs by mandating the removal of their patio cover at their expense to facilitate building painting. The ALJ found the HOA's proposed plan was reasonable and authorized by CC&R Sections 9 and 9(b), and that Petitioners, under A.R.S. § 33-1255(C), must bear the cost of removing and reinstalling the limited common element.

Orders: Petitioners' petition is dismissed. Respondent Tempe Gardens Townhouse Corporation is deemed to be the prevailing party. Petitioners are responsible for the cost to remove and reinstall their patio cover.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1255(C)
  • CC&R Section 9
  • CC&R Section 9(b)
  • A.R.S. § 33-1212(4)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov

Analytics Highlights

Topics: HOA Authority, Limited Common Element, Maintenance Costs, CC&R Interpretation, Patio Cover Removal
Additional Citations:

  • A.R.S. § 32-2199
  • A.R.S. § 32-2199.02
  • A.R.S. § 33-1255(C)
  • A.R.S. § 33-1212(4)
  • A.R.S. § 33-1806(E)
  • Gutierrez v. Industrial Commission of Arizona
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov

Audio Overview

Decision Documents

17F-H1717038-REL-RHG Decision – 605540.pdf

Uploaded 2025-10-08T06:51:47 (105.0 KB)





Briefing Doc – 17F-H1717038-REL-RHG


Briefing on Larson v. Tempe Gardens Townhouse Corporation

Executive Summary

This briefing synthesizes the legal dispute between homeowners James and Shawna Larson and the Tempe Gardens Townhouse Corporation (the “Respondent” or “HOA”). The core conflict centered on the HOA’s directive that the Larsons remove their wooden patio cover at their own expense to facilitate a community-wide building repair and painting project.

The case progressed through two distinct phases. Initially, an Administrative Law Judge (ALJ) recommended dismissing the Larsons’ petition for a lack of a “justiciable controversy,” reasoning that the HOA had not yet acted on its threat to remove the patio cover, rendering the dispute speculative. However, the Commissioner of the Department of Real Estate rejected this recommendation, finding the matter was “ripe for adjudication,” and ordered a full hearing on the merits.

In the final decision, a second ALJ dismissed the Larsons’ petition and ruled in favor of the HOA. The judge found the HOA’s plan to be reasonable and necessary for the proper and safe completion of the project, based on credible testimony from the project manager. The decision affirmed the HOA’s authority under its CC&Rs to require the removal of the structure. Crucially, the ruling established that the patio cover is a “limited common element” under Arizona law. Consequently, pursuant to Arizona Revised Statutes, the homeowners (the Larsons) are exclusively responsible for all costs associated with it, including its removal and potential reinstallation.

Procedural History and Jurisdictional Rulings

Initial Petition and Dismissal Recommendation

On June 16, 2017, James and Shawna Larson filed a petition with the Department of Real Estate against their HOA, alleging a violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs). However, the initial filing did not specify which provisions had been violated.

Upon inquiry, the Petitioners’ counsel admitted via email that no specific provision of the CC&Rs had yet been violated. Instead, their concern was that section 10(a) would be violated if the HOA acted on its threat to forcibly remove their patio cover and charge them for the cost.

This led to the “ORDER RECOMMENDING DISMISSAL FOR LACK OF JUSTICIABLE CONTROVERSY,” issued on August 25, 2017, by Administrative Law Judge Suzanne Marwil. The key findings of this order were:

• Speculative Harm: The Judge found that the HOA’s actions “have not yet been undertaken and our [are] speculative at this juncture.”

• Lack of Jurisdiction: The order stated that the Office of Administrative Hearings’ jurisdiction, per A.R.S. § 32-2199, is limited to adjudicating existing violations of community documents, not potential future ones.

• Misunderstanding by Both Parties: The order noted, “Both parties fundamentally misunderstand the limits of this Tribunal’s jurisdiction.” The Petitioners were seeking a ruling on a future action, while the Respondent was urging the Tribunal to find the Petitioners had violated the CC&Rs, which was not the subject of the petition.

• Recommended Forum: The Judge suggested that the appropriate forum for the Petitioners would be a declaratory judgment action in superior court.

Rejection of Dismissal and Re-Hearing

On August 31, 2017, Judy Lowe, the Commissioner of the Department of Real Estate, issued an “ORDER REJECTING RECOMMENDATION OF DISMISSAL.”

• The Commissioner rejected the ALJ’s finding that the matter lacked a justiciable controversy.

• The order cited a letter from the Respondent dated June 1, 2017, which posed the question: “Is the presence of the awning a violation of the Association’s governing documents?”

• This question was deemed sufficient to make the matter “ripe for adjudication.”

• The Commissioner requested that the hearing be rescheduled for a ruling on the matter. A re-hearing was subsequently conducted on November 20, 2017, before Administrative Law Judge Thomas Shedden.

Analysis of the Merits of the Dispute

The re-hearing focused on the substantive conflict: whether the HOA had the authority to compel the Larsons to remove their patio cover at their own expense for the maintenance project.

Respondent’s (HOA) Case

The HOA, consisting of 169 units, initiated a project to make necessary repairs to its twenty-five buildings and then have them painted. The HOA’s position was based on the following points:

• Legal Authority: The HOA asserted its authority under sections 9 and 9(b) of its CC&Rs, which state that the HOA is responsible for maintaining building exteriors and that “Any cooperative action necessary or appropriate to the proper maintenance and upkeep of the… [building] exteriors… shall be taken by the [Respondent].”

• Project Necessity: The project manager, Wayne King, provided testimony that the HOA’s board deemed credible and reasonable.

◦ Safety: King stated that all five bidding contractors required the patio covers to be removed to ensure a safe work environment as mandated by the Arizona Department of Occupational Safety and Health (OSHA).

◦ Logistics: Standard scaffolding would not fit without removing the covers, commercial scaffolding would not provide full access, a forklift was not viable due to overhead power lines, and allowing painters to walk on homeowner patio covers was unsafe.

◦ Quality of Work: The project involved sanding, power washing, and patching before painting to “do the job right.” Many covers had been improperly flashed, causing damage to the buildings that needed repair.

◦ Warranty: The paint company would not provide a warranty for the project if individual homeowners, such as the Larsons, were permitted to paint their own units.

Petitioners’ (Larsons’) Case

The Larsons, who purchased their unit in 1999 with the wooden patio cover already in place, contested the HOA’s demands.

• Challenge to Authority: The Petitioners argued that the HOA had no legal authority to demand the removal of their patio cover.

• Unreasonable Cost: They asserted that the cost of removal and reinstallation was unreasonable, submitting two bids:

◦ One bid quoted $1,250 to remove and dispose of the cover and $3,980 to remove and rebuild it with new wood.

◦ A second bid quoted $5,975 to remove and then replace the structure.

• Proposed Alternative: In a letter dated May 19, 2017, the Larsons offered to have the back of their unit painted at their own expense.

• Compromise Offer: During the November 20, 2017 hearing, after hearing the project manager’s testimony, Ms. Larson offered that they would agree not to reinstall the patio cover if the HOA would pay for its removal.

Final Administrative Law Judge Decision

On December 11, 2017, ALJ Thomas Shedden issued a final decision dismissing the Larsons’ petition and finding in favor of the Respondent, Tempe Gardens Townhouse Corporation.

Key Findings and Conclusions of Law

Finding/Conclusion

Details

Standard of Review

The HOA’s decisions regarding maintenance and repair are given deference, provided they act reasonably.

Reasonableness of HOA Action

Based on the “credible testimony” of Wayne King, the Judge found that the HOA’s proposed plan for repairing and painting the buildings, which required the removal of patio covers, was reasonable.

HOA Authority

CC&R sections 9 and 9(b) were found to be “sufficient to show that Respondent has the authority to remove Petitioners’ patio to complete the painting work.”

Patio Cover Classification

The Petitioners’ patio cover was legally classified as a “limited common element” within the meaning of ARIZ. REV. STAT. section 33-1212(4).

Cost Responsibility

The central issue of payment was decided by statute. The Judge concluded that under a “reasonable reading of ARIZ. REV. STAT. section 33-1255(C),” any common expense associated with a limited common element “shall be assessed exclusively against the units benefitted.”

Final Order

Based on these findings, the Administrative Law Judge ordered the following:

“The evidence of record supports a conclusion that Respondent has authority to require Petitioners to remove their patio cover to allow the building to be properly and safely painted, and that Petitioners are responsible for the cost to remove the patio cover and the cost to reinstall it should they choose to do so.”

The final order was that the Petitioners’ petition be dismissed, and the Respondent, Tempe Gardens Townhouse Corporation, was deemed the prevailing party.


James and Shawna Larson v. Tempe Gardens Townhouse Corp

Posted on by

Case Summary

Case ID 17F-H1717038-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2017-12-11
Administrative Law Judge Thomas Shedden
Outcome no_win
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner James and Shawna Larson Counsel Lisa M. Hanger
Respondent Tempe Gardens Townhouse Corporation Counsel Nathan Tennyson

Alleged Violations

A.R.S. § 33-1255(C); CC&R Sections 9 and 9(b)

Outcome Summary

The ALJ dismissed the Petitioners' complaint, ruling that the HOA acted reasonably and within its authority under the CC&Rs and A.R.S. § 33-1255(C) by requiring homeowners to remove their limited common element patio covers for necessary maintenance and requiring the homeowners to bear the associated cost.

Why this result: Petitioners failed to demonstrate that the Respondent HOA committed a violation of the condominium documents or statutes.

Key Issues & Findings

Authority of HOA to require removal of a limited common element (patio cover) for maintenance and allocation of associated costs.

Petitioners alleged the HOA violated CC&Rs by mandating the removal of their patio cover at their expense to facilitate building painting. The ALJ found the HOA's proposed plan was reasonable and authorized by CC&R Sections 9 and 9(b), and that Petitioners, under A.R.S. § 33-1255(C), must bear the cost of removing and reinstalling the limited common element.

Orders: Petitioners' petition is dismissed. Respondent Tempe Gardens Townhouse Corporation is deemed to be the prevailing party. Petitioners are responsible for the cost to remove and reinstall their patio cover.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1255(C)
  • CC&R Section 9
  • CC&R Section 9(b)
  • A.R.S. § 33-1212(4)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov

Analytics Highlights

Topics: HOA Authority, Limited Common Element, Maintenance Costs, CC&R Interpretation, Patio Cover Removal
Additional Citations:

  • A.R.S. § 32-2199
  • A.R.S. § 32-2199.02
  • A.R.S. § 33-1255(C)
  • A.R.S. § 33-1212(4)
  • A.R.S. § 33-1806(E)
  • Gutierrez v. Industrial Commission of Arizona
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov

Audio Overview

Decision Documents

17F-H1717038-REL-RHG Decision – 605540.pdf

Uploaded 2025-10-08T06:58:20 (105.0 KB)





Briefing Doc – 17F-H1717038-REL-RHG


Briefing on Larson v. Tempe Gardens Townhouse Corporation

Executive Summary

This briefing synthesizes the legal dispute between homeowners James and Shawna Larson and the Tempe Gardens Townhouse Corporation (the “Respondent” or “HOA”). The core conflict centered on the HOA’s directive that the Larsons remove their wooden patio cover at their own expense to facilitate a community-wide building repair and painting project.

The case progressed through two distinct phases. Initially, an Administrative Law Judge (ALJ) recommended dismissing the Larsons’ petition for a lack of a “justiciable controversy,” reasoning that the HOA had not yet acted on its threat to remove the patio cover, rendering the dispute speculative. However, the Commissioner of the Department of Real Estate rejected this recommendation, finding the matter was “ripe for adjudication,” and ordered a full hearing on the merits.

In the final decision, a second ALJ dismissed the Larsons’ petition and ruled in favor of the HOA. The judge found the HOA’s plan to be reasonable and necessary for the proper and safe completion of the project, based on credible testimony from the project manager. The decision affirmed the HOA’s authority under its CC&Rs to require the removal of the structure. Crucially, the ruling established that the patio cover is a “limited common element” under Arizona law. Consequently, pursuant to Arizona Revised Statutes, the homeowners (the Larsons) are exclusively responsible for all costs associated with it, including its removal and potential reinstallation.

Procedural History and Jurisdictional Rulings

Initial Petition and Dismissal Recommendation

On June 16, 2017, James and Shawna Larson filed a petition with the Department of Real Estate against their HOA, alleging a violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs). However, the initial filing did not specify which provisions had been violated.

Upon inquiry, the Petitioners’ counsel admitted via email that no specific provision of the CC&Rs had yet been violated. Instead, their concern was that section 10(a) would be violated if the HOA acted on its threat to forcibly remove their patio cover and charge them for the cost.

This led to the “ORDER RECOMMENDING DISMISSAL FOR LACK OF JUSTICIABLE CONTROVERSY,” issued on August 25, 2017, by Administrative Law Judge Suzanne Marwil. The key findings of this order were:

• Speculative Harm: The Judge found that the HOA’s actions “have not yet been undertaken and our [are] speculative at this juncture.”

• Lack of Jurisdiction: The order stated that the Office of Administrative Hearings’ jurisdiction, per A.R.S. § 32-2199, is limited to adjudicating existing violations of community documents, not potential future ones.

• Misunderstanding by Both Parties: The order noted, “Both parties fundamentally misunderstand the limits of this Tribunal’s jurisdiction.” The Petitioners were seeking a ruling on a future action, while the Respondent was urging the Tribunal to find the Petitioners had violated the CC&Rs, which was not the subject of the petition.

• Recommended Forum: The Judge suggested that the appropriate forum for the Petitioners would be a declaratory judgment action in superior court.

Rejection of Dismissal and Re-Hearing

On August 31, 2017, Judy Lowe, the Commissioner of the Department of Real Estate, issued an “ORDER REJECTING RECOMMENDATION OF DISMISSAL.”

• The Commissioner rejected the ALJ’s finding that the matter lacked a justiciable controversy.

• The order cited a letter from the Respondent dated June 1, 2017, which posed the question: “Is the presence of the awning a violation of the Association’s governing documents?”

• This question was deemed sufficient to make the matter “ripe for adjudication.”

• The Commissioner requested that the hearing be rescheduled for a ruling on the matter. A re-hearing was subsequently conducted on November 20, 2017, before Administrative Law Judge Thomas Shedden.

Analysis of the Merits of the Dispute

The re-hearing focused on the substantive conflict: whether the HOA had the authority to compel the Larsons to remove their patio cover at their own expense for the maintenance project.

Respondent’s (HOA) Case

The HOA, consisting of 169 units, initiated a project to make necessary repairs to its twenty-five buildings and then have them painted. The HOA’s position was based on the following points:

• Legal Authority: The HOA asserted its authority under sections 9 and 9(b) of its CC&Rs, which state that the HOA is responsible for maintaining building exteriors and that “Any cooperative action necessary or appropriate to the proper maintenance and upkeep of the… [building] exteriors… shall be taken by the [Respondent].”

• Project Necessity: The project manager, Wayne King, provided testimony that the HOA’s board deemed credible and reasonable.

◦ Safety: King stated that all five bidding contractors required the patio covers to be removed to ensure a safe work environment as mandated by the Arizona Department of Occupational Safety and Health (OSHA).

◦ Logistics: Standard scaffolding would not fit without removing the covers, commercial scaffolding would not provide full access, a forklift was not viable due to overhead power lines, and allowing painters to walk on homeowner patio covers was unsafe.

◦ Quality of Work: The project involved sanding, power washing, and patching before painting to “do the job right.” Many covers had been improperly flashed, causing damage to the buildings that needed repair.

◦ Warranty: The paint company would not provide a warranty for the project if individual homeowners, such as the Larsons, were permitted to paint their own units.

Petitioners’ (Larsons’) Case

The Larsons, who purchased their unit in 1999 with the wooden patio cover already in place, contested the HOA’s demands.

• Challenge to Authority: The Petitioners argued that the HOA had no legal authority to demand the removal of their patio cover.

• Unreasonable Cost: They asserted that the cost of removal and reinstallation was unreasonable, submitting two bids:

◦ One bid quoted $1,250 to remove and dispose of the cover and $3,980 to remove and rebuild it with new wood.

◦ A second bid quoted $5,975 to remove and then replace the structure.

• Proposed Alternative: In a letter dated May 19, 2017, the Larsons offered to have the back of their unit painted at their own expense.

• Compromise Offer: During the November 20, 2017 hearing, after hearing the project manager’s testimony, Ms. Larson offered that they would agree not to reinstall the patio cover if the HOA would pay for its removal.

Final Administrative Law Judge Decision

On December 11, 2017, ALJ Thomas Shedden issued a final decision dismissing the Larsons’ petition and finding in favor of the Respondent, Tempe Gardens Townhouse Corporation.

Key Findings and Conclusions of Law

Finding/Conclusion

Details

Standard of Review

The HOA’s decisions regarding maintenance and repair are given deference, provided they act reasonably.

Reasonableness of HOA Action

Based on the “credible testimony” of Wayne King, the Judge found that the HOA’s proposed plan for repairing and painting the buildings, which required the removal of patio covers, was reasonable.

HOA Authority

CC&R sections 9 and 9(b) were found to be “sufficient to show that Respondent has the authority to remove Petitioners’ patio to complete the painting work.”

Patio Cover Classification

The Petitioners’ patio cover was legally classified as a “limited common element” within the meaning of ARIZ. REV. STAT. section 33-1212(4).

Cost Responsibility

The central issue of payment was decided by statute. The Judge concluded that under a “reasonable reading of ARIZ. REV. STAT. section 33-1255(C),” any common expense associated with a limited common element “shall be assessed exclusively against the units benefitted.”

Final Order

Based on these findings, the Administrative Law Judge ordered the following:

“The evidence of record supports a conclusion that Respondent has authority to require Petitioners to remove their patio cover to allow the building to be properly and safely painted, and that Petitioners are responsible for the cost to remove the patio cover and the cost to reinstall it should they choose to do so.”

The final order was that the Petitioners’ petition be dismissed, and the Respondent, Tempe Gardens Townhouse Corporation, was deemed the prevailing party.