HOA - ALJDEC decisions

25F-H073-REL · Department of Real Estate - H/C · 2026-05-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of

Kay & William Long

Villas at Desert Camp Association

No. 25F-H073-REL

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: March 13, 2026.

APPEARANCES:

Petitioner: Kay Long

William Long

Respondent: Kyle von Johnson, Esq.

Ron Stacy

ADMINISTRATIVE LAW JUDGE: Nedra-Su Kawasaki

EXHIBITS ADMITTED INTO EVIDENCE: Notice of Hearing File, provided by the Department of Real Estate. Respondent’s Exhibits A, C, E-Q.

_____________________________________________________________________

FINDINGS OF FACT

Petitioners’ Claim

Villas at Desert Camp Community Association (Respondent) was a planned community association in Scottsdale, Arizona.

Kay and William Long (Petitioners) owned a home located at 9131 East Hoverland Road and were members of Respondent.

On or about July 23, 2025, Petitioners filed a petition with the Arizona Department of Real Estate (Department) alleging that Respondent had violated the Association Covenants, Conditions, and Restrictions (CC&Rs), specifically Section 4.6. The issue identified in the petition, for which Petitioners paid the requisite $500.00 filing fee, was as follows:

This Complaint specifically alleges a violation of Section 4.6 of the CC&Rs, due to the Boards decision to remove turf and install desert landscaping in designated common areas without a properly noticed vote of membership.

Respondent, through Ron Stacy, Board President, filed a written response to the petition, denying all complaint items.

The Department referred the petition to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

A hearing was held on March 13, 2026. Administrative Notice was taken of the agency record.

Referenced Association CC&Rs

Article 4 (The Association) provided, in relevant part, as follows:

§ 4.6 Procedure for Change of Use of Common Areas

Upon (a) adoption of a resolution by the Board stating that the then current use of a specified part of the Common Areas is no longer in the best interests of the Owners and Members, and (b) the approval of such resolution by a majority of the votes of each class of Members. . .at a meeting duly called for such purpose, the Board shall have the power and right to change the use thereof. . .provided such new use: (i) also shall be for the common benefit of the Owners and Members, and (ii) shall be consistent with any recorded tract declaration, deed restrictions or zoning regulations. Alternatively, the Board upon satisfaction of Subsection 4.6(a) above may, in lieu of calling a meeting, notify in writing all Members of the proposed transaction and of their right to object thereto and, if no more than ten percent (10%) of the Class A Memberships eligible to vote object in writing within thirty (30) days after receipt of such notice, the proposed transaction shall be deemed approved by the Members and a meeting of the Members shall not be necessary.

. . . .

§ 4.9 Areas of Association Responsibility

The Association, or its duly delegated representative, shall manage, maintain, repair and replace the areas within the Property that are the responsibility of the Association (“Areas of Association Responsibility”), and all improvements located thereon, except for any part of the Areas of Association Responsibility which any governmental entity is maintaining, or is obligated to maintain, in accordance with the maintenance standard as determined by the Board. Subject to the Master Declarations, the Board shall be the sole judge as to the appropriate maintenance, repair and replacement of all Areas of Association Responsibility.

Article 8 (Use Restrictions) provided, in relevant part, as follows:

§ 8.2 Permitted Uses, Restrictions and Maintenance – Common Areas

The permitted uses and restrictions for the Common Areas shall be as follows: . . .

Maintenance by Association of Common Areas

The Association has the right and may, at any time, as to any Common Areas conveyed, leased, or transferred to it, or otherwise placed under its jurisdiction, in the discretion of the Board, without any approval of the Owners being required:

Maintain the plantings on all Common Areas. For this purpose, Declarant and the Association shall have the right, at any time, to plant, replace, maintain and cultivate landscaping, shrubs, trees, and plantings on any Common Areas and on such easements over an Owner's Lot as may have been granted to Declarant or the Association, regardless of whether any Owner or the Association is responsible hereunder for maintenance of such areas. No Owner shall remove, alter, injure or interfere in any way with any landscaping, shrubs, trees, grass or plantings placed upon any Common Areas without the prior written consent of Declarant or the Association. Declarant and the Association shall have the right to enter upon or cross over any Lot, at any reasonable time, for the purpose of planting, replacing, maintaining or cultivating such landscaping, shrubs, trees, grass or plantings and shall not be liable for trespass for so doing;

. . . .

Replace injured and diseased trees or other vegetation on all Common Areas, and plant trees, shrubs and ground cover to the extent that the Board deems necessary or advisable;

. . . .

The Board shall be the sole judge as to the appropriate maintenance within the Common Areas, as well as the Lots;

Article 11 (Miscellaneous) provided, in relevant part, as follows:

§ 11.3 Indemnification and Acknowledgement

The owners acknowledge that:

(1) the property subject to this declaration contains common areas;

(2) the common areas are intended solely for aesthetic purposes and limited recreational use; . . . .

Hearing Evidence

It was undisputed that in or around June 2025, without conducting a member vote, Respondent’s Board converted landscaping on a private lot (Lot 21) and in select common areas. Specifically, the Board removed existing turf and replaced it with desertscape.

The Final Plat for DC Ranch Parcel 2.8, Respondent’s property, included the plat map as well as a “Tract Summary Table.” The Tract Summary Table documented each tract and its purpose as follows: Tract ‘A’ was a private street (with several easements noted), Tract ‘B’ was open space (with a noted easement), Tract ‘C’ was open space (with a noted easement), and Tract ‘D’ was noted as a couple easements. The plat map visually identified the location of each tract.

Lot 21

Lot 21 was a privately-owned single-family residence.

On September 10, 2024, a Transfer & Disclosure pre-inspection of Lot 21 was performed. As a result, two infractions were cited: (1) dead grass in the front yard, and (2) presence of a potted palm tree. As to infraction (1), the disclosure documented it was Respondent’s responsibility to cure.

In response, in May 2025, Respondent submitted a Modification Request to DC Ranch Association to convert the turf on Lot 21 to desertscape. The request included a CAD drawing, drafted by Desert Earth Works, providing detail and visual reference of the proposed conversion.

Thereafter, on September 3, 2025, a Modification Final Inspection, of the home exterior and landscape on Lot 21, was performed. The inspector noted the modifications were made according to the reviewed submittal and determined the property was compliant with DC Ranch Association landscape and architectural guidelines, and Community Wide Standards.

Common Areas

On April 22, 2025, at Respondent’s annual Board meeting, members discussed the Board’s plan for a turf area redesign in common areas, specifically in front of villas 9191, 9179, and 9167, and two areas in the park. The Board noted that all three areas were marked with red flags for member inspection, the DC Ranch Modification Committee was aware of the project, and Desert Earth Works would provide CAD drawings for irrigation changes and plant selections, copies of which were also available to all residents on request.

The parties did not dispute that the above-referenced areas were, in fact, common areas.

Petitioners’ Testimony

Petitioner Kay Long testified that Respondent converted the landscaping in three separate areas totaling approximately 2,500 square feet. Ms. Long argued that “change of use” was defined as any change in the appearance, character, function, nature, or way a space was used. Ms. Long further argued that CC&R § 4.6, required member approval before a substantial alteration to the function, character, or appearance of the common areas occurred. She contended the conversion from turf to desertscape constituted a change in use because the functional use of the common area was altered, as it could no longer be used for recreational purposes. On questioning, Ms. Long testified that the converted areas were still common and open, but more limited in functional use. Ms. Long further contented that while Respondent relied on CC&R § 8.2, it only allowed Respondent to replace vegetation as part of landscape maintenance, which addressed maintenance while preserving the original character of the area.

Respondent’s Testimony

Ron Stacy, Respondent’s Board President, testified that at the April 2023 annual Board meeting, it was announced that the City of Scottsdale and the Arizona Department of Water Resources (ADWR) would be mandating all communities to significantly reduce water consumption, which required community turf reduction over “the next five years.” Mr. Stacy testified that in early 2024, the Board conducted a survey of all residents regarding the community landscaping and long-term turf reduction plan. Thirty residents responded to the survey, and on February 5, 2024, the Board presented the anonymized results to all residents via email. Mr. Stacy specifically noted the results of questions 1 and 6. Question 1 asked, “Would you like to move from grass to desert landscaping in our community?” The results were 26 “Yes” / 4 “No”. Question 6 asked, “Should an all-resident vote be taken each and every time a recommendation is made to transition to a desertscape area?” The results were 8 “Yes” / 22 “No”. Mr. Stacy argued, notwithstanding the Board’s desire to include and consider all members’ opinions, a member-vote prior to converting landscape in common areas was not required.

Aaron Largo, Respondent’s property manager, testified that the types of changes that required a member vote were those that created a physical barrier. Mr. Largo gave examples including a community center, a pickleball court, a gated sports area, or anything that created a physical obstruction so that a member no longer had the same access.

Mr. von Johnson, on behalf of Respondent, argued that CC&R § 4.6 did not apply to the conversion because it indicated that a change in use meant changing the common area from open space to an alternative use. Mr. von Johnson argued that “change in use” referred more specifically to zoning, providing examples such as something that would require permitting, or potential rezoning of the plat. Additionally, Mr. von Johnson argued that the landscape conversion was allowed and performed pursuant to CC&R §§ 4.9 and 8.2(c), which also designated the Board to be the sole judge as to the appropriate maintenance in the common areas. Additionally, Mr. von Johnson argued that despite the turf conversion, the areas were still common and open space.

CONCLUSIONS OF LAW

A.R.S. § 32-2199 authorizes the administrative law judge to “adjudicate complaints regarding and ensure compliance with . . . [t]itle 33, chapter 16 and planned community documents.”

A.R.S. § 32-2199.01 permits a member of a planned community to file a petition with the Department for a hearing concerning the planned community association’s alleged violations as set forth in Title 33, Chapter 16. This matter lies within the Department’s jurisdiction. The statute provides that such petitions will be heard before the Office of Administrative Hearings.

A.R.S. § 32-2199.02 authorizes the administrative law judge to “order any party to abide by the statute, condominium documents, community documents or contract provision at issue and may levy a civil penalty on the basis of each violation.” This Tribunal is not authorized to order other remediation or order civil penalties for other conduct.

Petitioner bears the burden of proof to establish that Respondent violated applicable statutes, CC&Rs, and/or Bylaws by a preponderance of the evidence. Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

In Arizona, when construing statutes, we look first to a statute’s language as the best and most reliable index of its meaning. If the statute’s language is clear and unambiguous, we give effect to that language and apply it without using other means of statutory construction, unless applying the literal language would lead to an absurd result. Words should be given “their natural, obvious, and ordinary meaning.”

Unless defined by the legislature, words in statutes are given their ordinary meanings.

Each word, phrase, clause, and sentence of a statute or rule must be given meaning so that no part will be void, inert, redundant, or trivial.

Statutes should be interpreted to provide a fair and sensible result.

In the instant matter, the relevant facts are not in dispute; Lot 21 was a privately-owned single-family residence, and all other areas at issue were classified as “common.” The issue here is limited only to areas designated as “common.” Petitioner presented an argument suggesting that the size of modification to Lot 21, measured in square footage, potentially re-classified the area as “common” for purposes of the required approval process. However, the issue of property reclassification is not before the Tribunal in this matter. Therefore, this decision does not consider the modifications made to Lot 21, a privately-owned residence.

The issue in this matter is whether the Board violated CC&R § 4.6 when it removed turf and installed desertscape in designated common areas without first holding a member-vote for approval. CC&R § 4.6 addressed procedure requirements for “change of use” of common areas and provided an option of two methods. The first option had two requirements: (1) the Board must adopt a resolution that the current use of a specified part of the common area was no longer in the best interest of the Owners and members, and (2) the resolution must be approved by a majority of votes of each class of members at a meeting duly called for such purpose. The second option required the Board to adopt a resolution as referenced above. However, in lieu of calling a meeting to vote, the Board must notify all members, in writing, of the proposed change and the members’ right to object. If within thirty (30) days after the notice was received, not more than 10 percent of Class A members, eligible to vote, objected in writing, the proposed change was deemed approved. In either option, the new use must be for the common benefit of the owners and members, and must be consistent with any recorded tract declaration, deed restrictions, or zoning regulations.

To determine whether the Board violated CC&R § 4.6, the term “use” must first be defined. Because it was not defined within the CC&Rs, we look to the common definition. Ms. Long argued “change in use” meant the appearance, character, function, or nature of how the space was used. Mr. von Johnson argued it meant changing the “open space” to an alternative use that would potentially require permitting or rezoning of the plat.

According to the recorded plat, the common areas at issue were located in “Tract C” which was designated as “open space.” Applying Respondent’s definition to § 4.6 produces an illogical result. Specifically, if a change in use meant to change the open space to an alternative use that potentially required permitting or rezoning, § 4.6 would read to mean that a change of use from accessible open space (current use) would be allowed, if the new use was also accessible (common benefit) and open space (consistent with the recorded tract declaration), which results in no change at all. Thus, the most appropriate definition applied here is, “a purpose, object, or end, esp. of a useful or advantageous nature.” This meaning is more in line with Ms. Long’s argument that a change in use referred to the function or nature of how the space is used. Applying this definition to § 4.6 would require a member vote if the Board adopted a resolution determining that the current “function and nature of” use of the common areas at issue was no longer in the best interest of the owners and members. In this case, there was agreement between the parties that the common areas at issue were located in open space used as a park.

The petition alleged specifically that § 4.6 was violated when the Board, without a vote of approval, removed turf and installed desertscape in the common areas. Thus, it must next be analyzed whether removal of turf and installation of desertscape constituted a change of use pursuant to § 4.6. No individual Article or Section of the CC&Rs operates in a vacuum. Each must be considered as a part of the whole. Particularly relevant to the removal of turf and installation of desertscape were CC&R §§ 4.9 and 8.2. These two Sections addressed maintenance and landscaping of areas that were the responsibility of the Association, including common areas. Section 4.9 imposed a duty on the Board to manage, maintain, repair, and replace the areas that were the responsibility of the Association, in accordance with the maintenance standard as determined by the Board. Section 8.2 granted the Board the right, without owner approval required, to at any time, plant, replace, maintain and cultivate landscaping, shrubs, trees, and plantings on any Common areas. Both Sections appointed the Board to be the sole judge as to the appropriate maintenance. Because the CC&Rs both imposed the duty and granted the right, without approval, to the Board to maintain landscaping on common areas in accordance with the maintenance standard determined by the Board, and appointed the Board as the sole judge as to the appropriate measures to achieve this end, § 4.6 cannot be interpreted to mean that ‘change of use’ included landscaping. This exception to § 4.6 is further supported by CC&R § 11.3(2) which provided that common areas were intended solely for aesthetic purposes and limited recreational use. Therefore, the undersigned ALJ finds that the Board did not violate CC&R § 4.6 when it removed turf and installed desertscape in the common areas without a member vote.

order

IT IS ORDERED that Respondent be deemed the prevailing party in this matter.

NOTICE

Pursuant to A.R.S. §32-2199.02(B), this Order is binding on the parties unless a rehearing is granted pursuant to A.R.S. § 32-2199.04. Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.

-54864001

001

-137160-45720000Done this day, May 28, 2026.

/s/ Nedra-Su Kawasaki

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile May 28, 2026 to:

Susan Nicolson, Commissioner

Arizona Department of Real Estate

[email redacted]

Kay & William Long

[email redacted]

Allison Preston & Kyle von Johnson

CHBD Law

[email redacted]

kyle.vonjohnson@chdbla

[email redacted]

By: OAH Staff