The Administrative Law Judge dismissed the petition filed by Ronald Borruso, finding that the Petitioner failed to meet the standard of proof (preponderance of the evidence) regarding the alleged violations of ARIZ. REV. STAT. § 33-1804 concerning meeting procedures and unauthorized board actions.
Why this result: The Petitioner failed to carry the burden of proof to show that the alleged violations of ARIZ. REV. STAT. § 33-1804 occurred.
Key Issues & Findings
Alleged violations regarding member speaking rights at May 27, 2021 meeting and unauthorized board meetings concerning Operations Manager job qualifications
Petitioner alleged the HOA violated open meeting laws by restricting member speaking rights during deliberations at a special meeting on May 27, 2021, and by holding improperly noticed meetings to approve job qualifications for an Operations Manager.
Orders: Ronald Borruso’s petition is dismissed.
Filing fee: $1,500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 33-1804
ARIZ. ADMIN. CODE § R2-19-119
ARIZ. REV. STAT. § 32-2199.02(A)
Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)
State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
Analytics Highlights
Topics: Open Meetings, Right to Speak, Statute Violation, Burden of Proof, Dismissal, Filing Fee
Additional Citations:
ARIZ. REV. STAT. § 33-1804
ARIZ. ADMIN. CODE § R2-19-119
ARIZ. REV. STAT. § 32-2199.02(A)
Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)
State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
Video Overview
Audio Overview
Decision Documents
21F-H2121062-REL Decision – 912276.pdf
Uploaded 2026-01-23T17:38:53 (114.4 KB)
Questions
Question
Can the HOA Board restrict when homeowners are allowed to speak during a meeting?
Short Answer
Yes, the Board is allowed to place reasonable time restrictions on speakers and determine the appropriate time for comments.
Detailed Answer
The ALJ cited Arizona law stating that while members have a right to speak, the Board may impose reasonable time restrictions. In this case, requiring members to wait until after the Board's presentation to speak was not a violation.
Alj Quote
The board may place reasonable time restrictions on those persons speaking during the meeting but shall permit a member or member's designated representative to speak once after the board has discussed a specific agenda item but before the board takes formal action on that item
Legal Basis
A.R.S. § 33-1804(A)
Topic Tags
meetings
homeowner rights
speaking limits
Question
If the Board calls part of a meeting 'closed', is it automatically an illegal executive session?
Short Answer
No, not if members are still allowed to attend and observe.
Detailed Answer
Even if the Board uses the term 'closed' inartfully to mean 'no comments allowed yet,' it is not an illegal meeting if members are physically permitted to attend. A true 'closed' meeting (executive session) is one members cannot attend.
Alj Quote
Consequently, although the Board referred to the initial part of the meeting as being 'closed' because it would not take members’ comments in that portion of the meeting, it was using that word in a different sense than it is used in section 33-1804.
Legal Basis
A.R.S. § 33-1804(A) and (C)
Topic Tags
meetings
executive session
definitions
Question
What standard of proof do I need to meet to win a case against my HOA?
Short Answer
You must prove your case by a 'preponderance of the evidence'.
Detailed Answer
The homeowner (petitioner) bears the burden of proof. This means showing that the allegations are more likely true than not—having the 'greater weight' of evidence.
Alj Quote
The standard of proof on all issues in this matter is that of a preponderance of the evidence.
Legal Basis
A.A.C. § R2-19-119
Topic Tags
legal standards
burden of proof
procedure
Question
Is a Board President's verbal admission enough to prove an illegal meeting occurred?
Short Answer
Not necessarily, especially if other testimony contradicts it and there are no records.
Detailed Answer
In this case, a Board President said 'yes' when asked if the Board met to approve a job description. However, the ALJ found this insufficient because other Board members testified credibly that she was wrong and no such meeting took place.
Alj Quote
Although Ms. Haynie did answer 'yes' when asked, Messrs. Thurn and Fretwell provided credible testimony that she was wrong. … Consequently, the preponderance of the evidence shows that there is no violation
Legal Basis
Preponderance of Evidence
Topic Tags
evidence
board meetings
testimony
Question
Can I file a single petition for multiple different complaints against my HOA?
Short Answer
Yes, but you must pay the appropriate fee for a multi-issue hearing.
Detailed Answer
When filing a petition, you must either identify a single issue or pay the Department the fee required for a multi-issue hearing.
Alj Quote
Mr. Borruso that he was required either to identify a single issue for hearing or to pay to the Department the appropriate fee for a multi-issue hearing.
Legal Basis
Administrative Procedure
Topic Tags
filing fees
procedure
petitions
Question
Does the Board have to let me speak before they take a formal vote?
Short Answer
Yes, homeowners must be allowed to speak after discussion but before the vote.
Detailed Answer
The statute explicitly states that a member must be permitted to speak once after the board has discussed a specific item but before formal action is taken.
Alj Quote
[S]hall permit a member or member's designated representative to speak once after the board has discussed a specific agenda item but before the board takes formal action on that item
Legal Basis
A.R.S. § 33-1804(A)
Topic Tags
voting
meetings
homeowner rights
Case
Docket No
21F-H2121062-REL
Case Title
Ronald Borruso vs. Sunland Village East Association
Decision Date
2021-09-21
Alj Name
Thomas Shedden
Tribunal
OAH
Agency
ADRE
Questions
Question
Can the HOA Board restrict when homeowners are allowed to speak during a meeting?
Short Answer
Yes, the Board is allowed to place reasonable time restrictions on speakers and determine the appropriate time for comments.
Detailed Answer
The ALJ cited Arizona law stating that while members have a right to speak, the Board may impose reasonable time restrictions. In this case, requiring members to wait until after the Board's presentation to speak was not a violation.
Alj Quote
The board may place reasonable time restrictions on those persons speaking during the meeting but shall permit a member or member's designated representative to speak once after the board has discussed a specific agenda item but before the board takes formal action on that item
Legal Basis
A.R.S. § 33-1804(A)
Topic Tags
meetings
homeowner rights
speaking limits
Question
If the Board calls part of a meeting 'closed', is it automatically an illegal executive session?
Short Answer
No, not if members are still allowed to attend and observe.
Detailed Answer
Even if the Board uses the term 'closed' inartfully to mean 'no comments allowed yet,' it is not an illegal meeting if members are physically permitted to attend. A true 'closed' meeting (executive session) is one members cannot attend.
Alj Quote
Consequently, although the Board referred to the initial part of the meeting as being 'closed' because it would not take members’ comments in that portion of the meeting, it was using that word in a different sense than it is used in section 33-1804.
Legal Basis
A.R.S. § 33-1804(A) and (C)
Topic Tags
meetings
executive session
definitions
Question
What standard of proof do I need to meet to win a case against my HOA?
Short Answer
You must prove your case by a 'preponderance of the evidence'.
Detailed Answer
The homeowner (petitioner) bears the burden of proof. This means showing that the allegations are more likely true than not—having the 'greater weight' of evidence.
Alj Quote
The standard of proof on all issues in this matter is that of a preponderance of the evidence.
Legal Basis
A.A.C. § R2-19-119
Topic Tags
legal standards
burden of proof
procedure
Question
Is a Board President's verbal admission enough to prove an illegal meeting occurred?
Short Answer
Not necessarily, especially if other testimony contradicts it and there are no records.
Detailed Answer
In this case, a Board President said 'yes' when asked if the Board met to approve a job description. However, the ALJ found this insufficient because other Board members testified credibly that she was wrong and no such meeting took place.
Alj Quote
Although Ms. Haynie did answer 'yes' when asked, Messrs. Thurn and Fretwell provided credible testimony that she was wrong. … Consequently, the preponderance of the evidence shows that there is no violation
Legal Basis
Preponderance of Evidence
Topic Tags
evidence
board meetings
testimony
Question
Can I file a single petition for multiple different complaints against my HOA?
Short Answer
Yes, but you must pay the appropriate fee for a multi-issue hearing.
Detailed Answer
When filing a petition, you must either identify a single issue or pay the Department the fee required for a multi-issue hearing.
Alj Quote
Mr. Borruso that he was required either to identify a single issue for hearing or to pay to the Department the appropriate fee for a multi-issue hearing.
Legal Basis
Administrative Procedure
Topic Tags
filing fees
procedure
petitions
Question
Does the Board have to let me speak before they take a formal vote?
Short Answer
Yes, homeowners must be allowed to speak after discussion but before the vote.
Detailed Answer
The statute explicitly states that a member must be permitted to speak once after the board has discussed a specific item but before formal action is taken.
Alj Quote
[S]hall permit a member or member's designated representative to speak once after the board has discussed a specific agenda item but before the board takes formal action on that item
Legal Basis
A.R.S. § 33-1804(A)
Topic Tags
voting
meetings
homeowner rights
Case
Docket No
21F-H2121062-REL
Case Title
Ronald Borruso vs. Sunland Village East Association
Decision Date
2021-09-21
Alj Name
Thomas Shedden
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Ronald Borruso(petitioner)
Thomas Huston(witness) Testified for Petitioner
Respondent Side
Nicholas Nogami(respondent attorney) Carpenter Hazlewood Delgado & Bolen, LLP
The Administrative Law Judge denied the Petition, finding that Petitioners failed to sustain their burden of proof that the Association violated state statute or community documents. The Association's Architectural Review Committee (ARC) refusal to approve the wall modification request was deemed reasonable because Petitioners failed to provide the supplemental information requested by the ARC.
Why this result: The record did not establish violation(s) of ARIZ. REV. STAT. § 33-1817(B)(3) or CC&Rs Article VII, Section 2 by a preponderance of the evidence. Petitioners did not provide sufficient and/or requisite information necessary for the ARC to make a reasonably objective determination, nor did they attempt to cure the deficient application.
Key Issues & Findings
Arbitrary and capricious denial of architectural request to move garage-side yard block wall and install a double-wide gate.
Petitioners alleged the Association (ARC) arbitrarily and capriciously rejected their request to move their garage-side yard wall eight (8) feet forward on their property, using the same materials as the existing wall, except replacing the single-wide gate with a double-wide gate previously approved by Respondent.
This administrative law decision outlines a legal dispute between homeowners Arthur and Viktoriya Fisenko and the Bellvue Homeowners Association regarding property modifications. The petitioners alleged that the association’s Architectural Committee unfairly rejected their request to extend a boundary wall and install a double-wide gate. While the parties resolved disagreements over landscaping materials like artificial grass and pavers before the hearing, the conflict regarding the wall remained. The Administrative Law Judge ultimately ruled in favor of the Homeowners Association, finding that the residents failed to provide the specific plans and technical data required for approval. Consequently, the court determined the association did not act arbitrarily or capriciously in its refusal, leading to the formal denial of the petition.
What was the core legal dispute between the Fisenkos and the HOA?
Why did the Administrative Law Judge ultimately rule against the homeowners?
How do Arizona statutes regulate the architectural approval process for HOAs?
Thursday, February 12
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This administrative law decision outlines a legal dispute between homeowners Arthur and Viktoriya Fisenko and the Bellvue Homeowners Association regarding property modifications. The petitioners alleged that the association’s Architectural Committee unfairly rejected their request to extend a boundary wall and install a double-wide gate. While the parties resolved disagreements over landscaping materials like artificial grass and pavers before the hearing, the conflict regarding the wall remained. The Administrative Law Judge ultimately ruled in favor of the Homeowners Association, finding that the residents failed to provide the specific plans and technical data required for approval. Consequently, the court determined the association did not act arbitrarily or capriciously in its refusal, leading to the formal denial of the petition.
What was the core legal dispute between the Fisenkos and the HOA?
Why did the Administrative Law Judge ultimately rule against the homeowners?
How do Arizona statutes regulate the architectural approval process for HOAs?
Thursday, February 12
Save to note
Today • 11:01 AM
Video Overview
Mind Map
Reports
Flashcards
Quiz
Infographic
Slide Deck
Data Table
Case Participants
Petitioner Side
Arthur Fisenko(petitioner) Testified on behalf of Petitioners
Viktoriya Tkach-Fisenko(petitioner)
Laurence Stevens(petitioner attorney) Stevens & Van Cott, PLLC
Respondent Side
Jamie Palfai(HOA attorney) O’Hagan Meyer LLC
Samuel Truett(witness) Bellvue Homeowners Association Witness for Bellvue Homeowners Association
Neutral Parties
Jenna Clark(ALJ) Office of Administrative Hearings
Judy Lowe(ADRE Commissioner) Arizona Department of Real Estate
The Petitioner’s petition was affirmed in part (violation of A.R.S. § 33-1258 regarding documents) and denied in part (no violation of A.R.S. § 33-1248 regarding open meetings). Respondent was ordered to reimburse $500.00 of the filing fee and comply with A.R.S. § 33-1258.
Why this result: Petitioner failed to prove the violation of A.R.S. § 33-1248 because evidence of improper notice was lacking and the topic discussed in executive session was likely covered by a statutory exemption.
Key Issues & Findings
Access to Association Records
Respondent violated A.R.S. § 33-1258 by failing to provide certain requested 2021 invoices that were in existence at the time of the request within the statutory 10-day period.
Orders: Respondent must comply with A.R.S. § 33-1258 going forward. Petitioner reimbursed $500.00 filing fee.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1258
A.R.S. § 33-1805
Open Board Meetings
Petitioner failed to establish a violation of A.R.S. § 33-1248 regarding the March 25, 2021, board meeting, as the issue regarding notice was not established and the topic discussed (Landscaping Bid Review) likely fell under a statutory exemption.
Orders: Petitioner failed to establish the alleged violation of A.R.S. § 33-1248.
Can I demand to inspect every single HOA document in person at the management office?
Short Answer
No. While records must be reasonably available, you do not have the right to peruse all documents at will.
Detailed Answer
The Administrative Law Judge ruled that the statute requiring records be 'reasonably available' does not grant an unlimited right to inspect all documents in person. The HOA can withhold certain confidential documents, and sorting through everything to remove them may be considered unduly burdensome.
Alj Quote
Nothing in the statute however, grants a condominium unit owner the right to peruse all of the association’s documents at will as some documents may properly be withheld.
Legal Basis
A.R.S. § 33-1258
Topic Tags
Records Request
Inspection Rights
Question
Is it a violation if the HOA fails to provide requested invoices within 10 days?
Short Answer
Yes. If the documents exist and are not provided within the statutory timeframe, it is a violation.
Detailed Answer
The ALJ found the Association in violation of the law because they acknowledged that requested invoices existed at the time of the request but were not provided to the homeowner.
Alj Quote
Respondent’s witness acknowledged that certain invoices requested by Petitioner were in existence at the time of the request, but were not provided to Petitioner. Such a failure to provide the documents requested was a violation of A.R.S. § 33-1258.
Legal Basis
A.R.S. § 33-1258
Topic Tags
Records Request
Invoices
Timeliness
Question
Can the HOA Board discuss vendor contracts or issues in a closed executive session?
Short Answer
Yes, if the discussion involves specific complaints or performance issues regarding an individual employee of the contractor.
Detailed Answer
The ALJ ruled that a 'Landscaping Bid Review' was properly held in executive session because the testimony indicated it involved specific performance issues with an employee of the landscaping company.
Alj Quote
Respondent’s witness asserted that the issue regarding the landscaping bid review was a specific performance issue with an employee of the landscaping company. As that topic falls under the exception listed in A.R.S. § 33-1248(A)(4), Respondent properly considered the issue in an executive session closed to its members.
Legal Basis
A.R.S. § 33-1248(A)(4)
Topic Tags
Open Meetings
Executive Session
Vendors
Question
Will the HOA be fined if they are found to have violated records request laws?
Short Answer
Not necessarily. The ALJ has discretion regarding civil penalties.
Detailed Answer
In this case, even though a violation was found regarding the failure to provide invoices, the judge decided that no civil penalty was appropriate based on the facts presented.
Alj Quote
Based on the facts presented, the Administrative Law Judge finds no civil penalty is appropriate in this matter.
Legal Basis
Administrative Discretion
Topic Tags
Penalties
Enforcement
Question
Who has the burden of proof in a dispute with the HOA?
Short Answer
The homeowner (Petitioner) must prove the violation by a preponderance of the evidence.
Detailed Answer
The homeowner is responsible for providing evidence that outweighs the evidence offered by the HOA. If the homeowner fails to provide sufficient evidence (such as proof of when a meeting agenda was issued), the claim will likely fail.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1248 and A.R.S. § 33-1258.
Legal Basis
A.A.C. R2-19-119
Topic Tags
Legal Standards
Burden of Proof
Question
Can I get my filing fee reimbursed if I win?
Short Answer
Yes, typically for the portion of the case on which you prevail.
Detailed Answer
The ALJ ordered the Association to reimburse the homeowner $500.00, which represented the filing fee for the specific issue (records request) where the homeowner won.
Alj Quote
IT IS FURTHER ORDERED that Respondent reimburse Petitioner their $500.00 filing fee for the issue on which they prevailed.
Legal Basis
Order
Topic Tags
Remedies
Fees
Question
What if I suspect the HOA altered a document they sent me?
Short Answer
You must provide proof. Mere assertion is not enough.
Detailed Answer
The homeowner claimed a landscaping contract was altered but provided no evidence. The ALJ ruled that an assertion without merit cannot be the basis for finding a violation.
Alj Quote
Petitioner’s assertion that the landscaping contract was altered in some way is completely without merit and cannot be the basis for a finding that Respondent violated A.R.S. § 33-1258.
Legal Basis
Evidence
Topic Tags
Evidence
Fraud Allegations
Question
Do Open Meeting laws apply to Condominium Associations?
Short Answer
Yes, under A.R.S. § 33-1248.
Detailed Answer
Although the homeowner originally cited the Planned Community statutes (A.R.S. § 33-1804), the hearing proceeded under the correct Condominium statutes (A.R.S. § 33-1248), which contain similar open meeting requirements.
Alj Quote
After discussion, the hearing proceeded with the understanding that the statutes applicable to the instant matter were A.R.S. § 33-1248… and A.R.S. § 33-1258…
Legal Basis
A.R.S. § 33-1248
Topic Tags
Jurisdiction
Condos vs HOAs
Case
Docket No
21F-H2121059-REL
Case Title
Jeffrey D Points vs. Olive 66 Condominium Association
Decision Date
2021-09-08
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE
Questions
Question
Can I demand to inspect every single HOA document in person at the management office?
Short Answer
No. While records must be reasonably available, you do not have the right to peruse all documents at will.
Detailed Answer
The Administrative Law Judge ruled that the statute requiring records be 'reasonably available' does not grant an unlimited right to inspect all documents in person. The HOA can withhold certain confidential documents, and sorting through everything to remove them may be considered unduly burdensome.
Alj Quote
Nothing in the statute however, grants a condominium unit owner the right to peruse all of the association’s documents at will as some documents may properly be withheld.
Legal Basis
A.R.S. § 33-1258
Topic Tags
Records Request
Inspection Rights
Question
Is it a violation if the HOA fails to provide requested invoices within 10 days?
Short Answer
Yes. If the documents exist and are not provided within the statutory timeframe, it is a violation.
Detailed Answer
The ALJ found the Association in violation of the law because they acknowledged that requested invoices existed at the time of the request but were not provided to the homeowner.
Alj Quote
Respondent’s witness acknowledged that certain invoices requested by Petitioner were in existence at the time of the request, but were not provided to Petitioner. Such a failure to provide the documents requested was a violation of A.R.S. § 33-1258.
Legal Basis
A.R.S. § 33-1258
Topic Tags
Records Request
Invoices
Timeliness
Question
Can the HOA Board discuss vendor contracts or issues in a closed executive session?
Short Answer
Yes, if the discussion involves specific complaints or performance issues regarding an individual employee of the contractor.
Detailed Answer
The ALJ ruled that a 'Landscaping Bid Review' was properly held in executive session because the testimony indicated it involved specific performance issues with an employee of the landscaping company.
Alj Quote
Respondent’s witness asserted that the issue regarding the landscaping bid review was a specific performance issue with an employee of the landscaping company. As that topic falls under the exception listed in A.R.S. § 33-1248(A)(4), Respondent properly considered the issue in an executive session closed to its members.
Legal Basis
A.R.S. § 33-1248(A)(4)
Topic Tags
Open Meetings
Executive Session
Vendors
Question
Will the HOA be fined if they are found to have violated records request laws?
Short Answer
Not necessarily. The ALJ has discretion regarding civil penalties.
Detailed Answer
In this case, even though a violation was found regarding the failure to provide invoices, the judge decided that no civil penalty was appropriate based on the facts presented.
Alj Quote
Based on the facts presented, the Administrative Law Judge finds no civil penalty is appropriate in this matter.
Legal Basis
Administrative Discretion
Topic Tags
Penalties
Enforcement
Question
Who has the burden of proof in a dispute with the HOA?
Short Answer
The homeowner (Petitioner) must prove the violation by a preponderance of the evidence.
Detailed Answer
The homeowner is responsible for providing evidence that outweighs the evidence offered by the HOA. If the homeowner fails to provide sufficient evidence (such as proof of when a meeting agenda was issued), the claim will likely fail.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1248 and A.R.S. § 33-1258.
Legal Basis
A.A.C. R2-19-119
Topic Tags
Legal Standards
Burden of Proof
Question
Can I get my filing fee reimbursed if I win?
Short Answer
Yes, typically for the portion of the case on which you prevail.
Detailed Answer
The ALJ ordered the Association to reimburse the homeowner $500.00, which represented the filing fee for the specific issue (records request) where the homeowner won.
Alj Quote
IT IS FURTHER ORDERED that Respondent reimburse Petitioner their $500.00 filing fee for the issue on which they prevailed.
Legal Basis
Order
Topic Tags
Remedies
Fees
Question
What if I suspect the HOA altered a document they sent me?
Short Answer
You must provide proof. Mere assertion is not enough.
Detailed Answer
The homeowner claimed a landscaping contract was altered but provided no evidence. The ALJ ruled that an assertion without merit cannot be the basis for finding a violation.
Alj Quote
Petitioner’s assertion that the landscaping contract was altered in some way is completely without merit and cannot be the basis for a finding that Respondent violated A.R.S. § 33-1258.
Legal Basis
Evidence
Topic Tags
Evidence
Fraud Allegations
Question
Do Open Meeting laws apply to Condominium Associations?
Short Answer
Yes, under A.R.S. § 33-1248.
Detailed Answer
Although the homeowner originally cited the Planned Community statutes (A.R.S. § 33-1804), the hearing proceeded under the correct Condominium statutes (A.R.S. § 33-1248), which contain similar open meeting requirements.
Alj Quote
After discussion, the hearing proceeded with the understanding that the statutes applicable to the instant matter were A.R.S. § 33-1248… and A.R.S. § 33-1258…
Legal Basis
A.R.S. § 33-1248
Topic Tags
Jurisdiction
Condos vs HOAs
Case
Docket No
21F-H2121059-REL
Case Title
Jeffrey D Points vs. Olive 66 Condominium Association
Decision Date
2021-09-08
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Jeffrey D Points(petitioner) Appeared on their own behalf
Respondent Side
MacKenzie Hill(respondent attorney) The Brown Law Group, PLLC Represented Olive 66 Condominium Association
Nathan Tennyson(respondent attorney) Represented Olive 66 Condominium Association
Cathy Hacker(association manager) Olive 66 Condominium Association Provided testimony as Association Manager,
Musa(individual/contractor) Mentioned regarding 1099s and invoices; referred to as 'Musa', and 'M. Sayegh'
Lorinda Brown(individual/contractor) Mentioned regarding 1099s and invoices
Neutral Parties
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings
Judy Lowe(ADRE Commissioner) Arizona Department of Real Estate
Other Participants
Tim(individual) Mentioned regarding 1099s/invoices; reportedly 'has not done any work on the property',
A.R.S. § 33-1803(D) and (E) A.R.S. § 33-1804(a)(5) A.R.S. § 33-1811 Article III, § 3.10 (CC&Rs)
Outcome Summary
The Administrative Law Judge dismissed the petition filed by Darryl L. Jacobson-Barnes and Robert Barnes, finding that the Petitioner failed to prove by a preponderance of the evidence that the Respondent HOA violated any of the cited Arizona Revised Statutes or that the alleged CC&R violation was outside the scope of Article III, § 3.10. The Respondent was deemed the prevailing party.
Why this result: The Petitioner failed to meet the burden of proving by a preponderance of the evidence that the HOA violated A.R.S. §§ 33-1803(D) and (E), 33-1804(5), or 33-1811, or that the alleged unapproved flood light violation was outside the scope of the cited CC&R provision (Article III, § 3.10).
Key Issues & Findings
The Association violated A.R.S.§ 33-1803(D) and (E) by failing to properly respond to the Barnes response to the notice of alleged violation and proceeding with enforcement actions.
Petitioner failed to establish the HOA violated these statutes because the HOA's May 27, 2020 notice contained all required information under A.R.S. § 1803(D)(1)-(4), rendering A.R.S. § 33-1803(E) inapplicable.
Orders: Petition dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1803(D)
A.R.S. § 33-1803(E)
A.A.C. R2-19-119
The association violated A.R.S. § 33-1804(a)(5) in rendering its decision on the Barnes contest of the notice.
Petitioner failed to establish violation of meeting procedures, as the appeal was discussed in an open session, and the subsequent closed session was justified to allow the HOA to seek legal counsel pursuant to A.R.S. § 33-1804(A)(1).
Orders: Petition dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1804(a)(5)
A.R.S. § 33-1804(A)(1)
The alleged violation and resulting penalty imposed are void and unenforceable under A.R.S. § 33-1811.
Petitioner failed to prove violation. A.R.S. § 33-1811 applies only to contracts, decisions, or actions for compensation, and no evidence was presented that the Petitioner's appeal involved such compensation.
Orders: Petition dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1811
The alleged violation is outside the scope of the cited CC&R Article III, § 3.10.
Petitioner failed to prove the violation (installation of an unapproved flood light) was outside the scope of Article III, § 3.10, which requires prior approval for 'other structure[s]'.
What specific information must be included in a violation notice for it to be legally sufficient?
Short Answer
The notice must include the provision violated, the date of observation, the name of the observer, and the process to contest it.
Detailed Answer
An HOA violation notice is considered sufficient if it includes four key pieces of information: the specific community document provision alleged to be violated, the date the violation was observed, the first and last name of the person who observed it, and the process the member must follow to contest the notice. If these are present, the HOA has met its obligation.
Alj Quote
The weight of the evidence shows that the HOA notified Petitioner of the provision of the community documents that had allegedly been violated, the date the violation was observed, the first and last name of the person who observed the violation, and the process the member must follow to contest the notice through the May 27, 2020 notice.
Legal Basis
A.R.S. § 33-1803(D)
Topic Tags
violation notices
due process
HOA procedures
Question
Does the HOA have to send a second 'explanation' letter after I receive a violation notice?
Short Answer
No, not if the original notice already contained all the legally required details.
Detailed Answer
Under Arizona law, the requirement for an HOA to provide a written explanation (often detailed in A.R.S. § 33-1803(E)) is only triggered if the initial violation notice was missing required information. If the initial notice fully satisfied the statutory requirements (provision, date, observer, contest process), the HOA is not required to send further explanation letters before proceeding.
Alj Quote
If a homeowner’s association satisfies the requirements in A.R.S. § 1803(D) (1)-(4) in its notice of violation, A.R.S. § 33-1803 (E) is not triggered and does not apply.
Legal Basis
A.R.S. § 33-1803(E)
Topic Tags
violation notices
legal requirements
Question
Can the HOA Board go into a closed session to decide on my appeal?
Short Answer
Yes, if the closed session is used to seek legal counsel regarding the decision.
Detailed Answer
While appeals generally involve open discussion, the Board is permitted to adjourn to an executive (closed) session to deliberate if they need to obtain legal advice concerning the decision. This does not violate the open meeting requirement of A.R.S. § 33-1804.
Alj Quote
The preponderance of the evidence does not show that Respondent violated A.R.S. § 33-1804(5) because Petitioner’s appeal was discussed in an open session. Moreover, the HOA presented credible testimony that the session was closed to allow the HOA to seek legal counsel concerning its decision in Petitioner’s appeal
Legal Basis
A.R.S. § 33-1804(A)(1)
Topic Tags
board meetings
open meeting law
executive session
Question
Do I need architectural approval to install a floodlight?
Short Answer
Yes, floodlights can be considered 'structures' or changes requiring approval under CC&Rs.
Detailed Answer
Even if not a building, items like floodlights attached to a home can fall under the scope of CC&R restrictions regarding 'structures' or unapproved changes. The ALJ found that an allegation of an unapproved floodlight falls within the scope of architectural control provisions.
Alj Quote
Respondent alleged that an unapproved flood light was installed at the back of Petitioner’s home. Such allegation falls within the scope of CC&R Article III, § 3.10.
Legal Basis
CC&R Article III, § 3.10
Topic Tags
architectural control
home improvements
lighting
Question
Can I use A.R.S. § 33-1811 to void a penalty if I disagree with the violation?
Short Answer
Generally no, unless the decision involved a conflict of interest or compensation for a board member.
Detailed Answer
A.R.S. § 33-1811 specifically addresses the validity of contracts or decisions involving compensation/conflicts of interest. It is not a catch-all statute to void standard violation penalties where no such compensation or conflict exists.
Alj Quote
A.R.S. § 33-1811 applies to the validity of any contract, decision, or action for compensation taken by or on behalf of the Board. There was no evidence presented at hearing that the Petitioner’s appeal involved a contract, decision or other action for compensation.
Legal Basis
A.R.S. § 33-1811
Topic Tags
conflicts of interest
penalties
statutory interpretation
Question
What is the burden of proof for a homeowner suing their HOA in an administrative hearing?
Short Answer
The homeowner must prove the HOA violated the law by a 'preponderance of the evidence'.
Detailed Answer
In these administrative proceedings, the burden is on the petitioner (the homeowner) to provide evidence that carries greater weight or is more convincing than the evidence offered by the HOA.
Alj Quote
At this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1808.
Legal Basis
A.A.C. R2-19-119
Topic Tags
legal standards
hearings
burden of proof
Case
Docket No
21F-H2120022-REL
Case Title
Darryl Jacobson-Barnes & Robert Barnes vs. Circle G Ranches 4 Homeowners Association
Decision Date
2021-08-24
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE
Questions
Question
What specific information must be included in a violation notice for it to be legally sufficient?
Short Answer
The notice must include the provision violated, the date of observation, the name of the observer, and the process to contest it.
Detailed Answer
An HOA violation notice is considered sufficient if it includes four key pieces of information: the specific community document provision alleged to be violated, the date the violation was observed, the first and last name of the person who observed it, and the process the member must follow to contest the notice. If these are present, the HOA has met its obligation.
Alj Quote
The weight of the evidence shows that the HOA notified Petitioner of the provision of the community documents that had allegedly been violated, the date the violation was observed, the first and last name of the person who observed the violation, and the process the member must follow to contest the notice through the May 27, 2020 notice.
Legal Basis
A.R.S. § 33-1803(D)
Topic Tags
violation notices
due process
HOA procedures
Question
Does the HOA have to send a second 'explanation' letter after I receive a violation notice?
Short Answer
No, not if the original notice already contained all the legally required details.
Detailed Answer
Under Arizona law, the requirement for an HOA to provide a written explanation (often detailed in A.R.S. § 33-1803(E)) is only triggered if the initial violation notice was missing required information. If the initial notice fully satisfied the statutory requirements (provision, date, observer, contest process), the HOA is not required to send further explanation letters before proceeding.
Alj Quote
If a homeowner’s association satisfies the requirements in A.R.S. § 1803(D) (1)-(4) in its notice of violation, A.R.S. § 33-1803 (E) is not triggered and does not apply.
Legal Basis
A.R.S. § 33-1803(E)
Topic Tags
violation notices
legal requirements
Question
Can the HOA Board go into a closed session to decide on my appeal?
Short Answer
Yes, if the closed session is used to seek legal counsel regarding the decision.
Detailed Answer
While appeals generally involve open discussion, the Board is permitted to adjourn to an executive (closed) session to deliberate if they need to obtain legal advice concerning the decision. This does not violate the open meeting requirement of A.R.S. § 33-1804.
Alj Quote
The preponderance of the evidence does not show that Respondent violated A.R.S. § 33-1804(5) because Petitioner’s appeal was discussed in an open session. Moreover, the HOA presented credible testimony that the session was closed to allow the HOA to seek legal counsel concerning its decision in Petitioner’s appeal
Legal Basis
A.R.S. § 33-1804(A)(1)
Topic Tags
board meetings
open meeting law
executive session
Question
Do I need architectural approval to install a floodlight?
Short Answer
Yes, floodlights can be considered 'structures' or changes requiring approval under CC&Rs.
Detailed Answer
Even if not a building, items like floodlights attached to a home can fall under the scope of CC&R restrictions regarding 'structures' or unapproved changes. The ALJ found that an allegation of an unapproved floodlight falls within the scope of architectural control provisions.
Alj Quote
Respondent alleged that an unapproved flood light was installed at the back of Petitioner’s home. Such allegation falls within the scope of CC&R Article III, § 3.10.
Legal Basis
CC&R Article III, § 3.10
Topic Tags
architectural control
home improvements
lighting
Question
Can I use A.R.S. § 33-1811 to void a penalty if I disagree with the violation?
Short Answer
Generally no, unless the decision involved a conflict of interest or compensation for a board member.
Detailed Answer
A.R.S. § 33-1811 specifically addresses the validity of contracts or decisions involving compensation/conflicts of interest. It is not a catch-all statute to void standard violation penalties where no such compensation or conflict exists.
Alj Quote
A.R.S. § 33-1811 applies to the validity of any contract, decision, or action for compensation taken by or on behalf of the Board. There was no evidence presented at hearing that the Petitioner’s appeal involved a contract, decision or other action for compensation.
Legal Basis
A.R.S. § 33-1811
Topic Tags
conflicts of interest
penalties
statutory interpretation
Question
What is the burden of proof for a homeowner suing their HOA in an administrative hearing?
Short Answer
The homeowner must prove the HOA violated the law by a 'preponderance of the evidence'.
Detailed Answer
In these administrative proceedings, the burden is on the petitioner (the homeowner) to provide evidence that carries greater weight or is more convincing than the evidence offered by the HOA.
Alj Quote
At this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1808.
Legal Basis
A.A.C. R2-19-119
Topic Tags
legal standards
hearings
burden of proof
Case
Docket No
21F-H2120022-REL
Case Title
Darryl Jacobson-Barnes & Robert Barnes vs. Circle G Ranches 4 Homeowners Association
Decision Date
2021-08-24
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Darryl Jacobson-Barnes(petitioner) Also referred to as Darryl Lynn Barnes–Jacobson and Darryl Barnes
Robert Barnes(petitioner) Also referred to as Robert A Barnes and Bob Barnes
Anthony L. Perez(petitioner attorney) Boyes Legal, PC
Respondent Side
Clint G. Goodman(respondent attorney) Goodman Holmgren Law Group
Michelle Mooney(board member) Circle G Ranches 4 Homeowners Association Board of Directors Filed complaint against Petitioner
Jennifer Amundson(property manager) VISION Community Management Also referred to as Jen Amundson; inspected violation
Amanda Stewart(board member) Circle G Ranches 4 Homeowners Association Board of Directors Board President
Neutral Parties
Velva Moses-Thompson(ALJ) Office of Administrative Hearings
Judy Lowe(ADRE contact) Arizona Department of Real Estate
AHansen(ADRE staff) Arizona Department of Real Estate
djones(ADRE staff) Arizona Department of Real Estate
DGardner(ADRE staff) Arizona Department of Real Estate
c. serrano(administrative staff) Transmitted July 14, 2021 Order
Miranda Alvarez(administrative staff) Transmitted August 24, 2021 Order
The petition was denied because Petitioner failed to sustain her burden of proof that the Association violated Community Bylaws 3.03, as the issue regarding a special meeting was found to be unripe. Other alleged statutory violations were inapplicable.
Why this result: Petitioner did not sustain the burden of proof (preponderance of the evidence) on the Bylaws violation because the condition precedent (requesting or holding a special meeting) had not occurred, rendering the issue unripe. The statutory violations cited were inapplicable to the Association.
Key Issues & Findings
Whether Foothills Townhomes Association, Inc. violated Community Bylaws 3.03 and ARIZ. REV. STAT. §§ 33-1248(A), 33-1248(B), and 33-1261(D).
Petitioner alleged the Association violated Community Bylaws 3.03 when it drafted and posted a letter directed to Petitioner on its online platform, in response to private correspondence (a draft special meeting request) that had not yet been submitted to the Board, which Petitioner perceived as an attempt to dismantle a platform for discussion and retaliate against her.
Orders: Petitioner’s petition is denied.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
Community Bylaws 3.03
ARIZ. REV. STAT. §§ 33-1248(A)
ARIZ. REV. STAT. §§ 33-1248(B)
ARIZ. REV. STAT. §§ 33-1261(D)
Analytics Highlights
Topics: HOA Dispute, Planned Community, Bylaws Violation, Jurisdiction, Unripe Issue, Special Meeting, Filing Fee Paid
Additional Citations:
ARIZ. REV. STAT. §§ 33-1248(A)
ARIZ. REV. STAT. §§ 33-1248(B)
ARIZ. REV. STAT. §§ 33-1261(D)
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. § 33-1243
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov
Community Bylaws 3.03
Video Overview
Audio Overview
Decision Documents
21F-H2121048-REL Decision – 906190.pdf
Uploaded 2026-01-23T17:37:43 (117.4 KB)
Questions
Question
If I pay for a single-issue petition, can the judge rule on other grievances I mention during the hearing?
Short Answer
No. The tribunal is limited to the specific issue paid for and filed.
Detailed Answer
If a petitioner only pays the filing fee for the adjudication of one issue, the Administrative Law Judge cannot address other issues raised in the petition or during testimony.
Alj Quote
Because Petitioner only paid for the adjudication of one (1) issue, this Tribunal may not address all of the issues Petitioner raised in her petition or during her testimony.
Legal Basis
ARIZ. REV. STAT. § 32-2199.05
Topic Tags
procedure
jurisdiction
filing fees
Question
What happens if I cite Condominium statutes in a dispute regarding a Planned Community?
Short Answer
The claims will likely be dismissed as moot or inapplicable.
Detailed Answer
Different statutes regulate Condominiums (Title 33, Chapter 9) and Planned Communities (Title 33, Chapter 16). If a homeowner alleges violations of statutes that do not govern their specific type of association, the burden of proof is not met and the concerns are rendered moot.
Alj Quote
However, because Petitioner’s amended petition specifically alleges violations of ARIZ. REV. STAT. § 33-1248(A), 33-1248(B) and 33-1261(D), which are inapplicable as the Association is not subject to governance or regulation by these statutes, the concerns are rendered moot.
Legal Basis
ARIZ. REV. STAT. Title 33, Chapter 9 vs. Chapter 16
Topic Tags
legal standards
statutes
planned communities
Question
Does the HOA posting my private correspondence on the community website violate bylaws regarding special meetings?
Short Answer
No. Public dissemination of private letters does not violate bylaws strictly governing the calling of meetings.
Detailed Answer
While a homeowner may feel that publishing private correspondence is retaliatory or malicious, it does not constitute a violation of bylaws specifically designed to regulate the calling and holding of special meetings.
Alj Quote
Instead, Petitioner’s grievance is the Association’s public dissemination and address of her private correspondence; which is not a violation of Bylaws Section 3.03.
Legal Basis
Bylaws Section 3.03
Topic Tags
privacy
bylaws
communications
Question
Can the ADRE hear claims regarding my constitutional rights or general 'rights as a homeowner'?
Short Answer
No. The Department's jurisdiction is limited to violations of community documents and specific statutes.
Detailed Answer
The Department lacks jurisdiction over broad claims such as constitutional rights, general homeowner rights, or fiduciary responsibilities unless they are framed as specific violations of the community documents or relevant statutes.
Alj Quote
Petitioner also alleged no less than four (4) additional violations in her Amended Petition that the Department has no jurisdiction over or she lacked standing to bring, such as (1) 'my rights as a homeowner,' (2) 'my constitutional rights as an American citizen'…
Legal Basis
ARIZ. REV. STAT. §§ 32-2102, 32-2199
Topic Tags
jurisdiction
constitutional rights
adre authority
Question
Can I claim the HOA violated the rules for calling a special meeting if I never formally requested one?
Short Answer
No. The issue is considered 'unripe' if no meeting was actually requested or held.
Detailed Answer
A violation regarding the calling of a special meeting cannot be established if the homeowner never submitted the request for the meeting prior to filing the petition. The tribunal cannot rule on a hypothetical refusal.
Alj Quote
No violation of Bylaws Section 3.03 exists because the issue is unripe. Here, the record reflects that a special meeting was not held, nor had Petitioner requested one prior to the filing of her petition in this matter.
Legal Basis
ripeness doctrine
Topic Tags
meetings
procedural requirements
violations
Question
What is the standard of proof required for a homeowner to win an administrative hearing?
Short Answer
Preponderance of the evidence.
Detailed Answer
The petitioner must provide enough evidence to convince the judge that their contention is 'more probably true than not.' It requires superior evidentiary weight, not necessarily a greater number of witnesses.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
burden of proof
legal standards
evidence
Question
Are the CC&Rs considered a legal contract between me and the HOA?
Short Answer
Yes. CC&Rs form an enforceable contract that binds the owner upon purchase.
Detailed Answer
When a party purchases a property within the development, they agree to be bound by the terms of the CC&Rs and Bylaws, creating a contractual relationship.
Alj Quote
Thus, the CC&Rs form an enforceable contract between the Association and each property owner, and the Bylaws outline how the Association is permitted to operate.
Legal Basis
Contract Law Principles
Topic Tags
CC&Rs
contracts
enforcement
Case
Docket No
21F-H2121048-REL
Case Title
Nancy Bender vs. Foothills Townhomes Association, Inc.
Decision Date
2021-08-23
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Questions
Question
If I pay for a single-issue petition, can the judge rule on other grievances I mention during the hearing?
Short Answer
No. The tribunal is limited to the specific issue paid for and filed.
Detailed Answer
If a petitioner only pays the filing fee for the adjudication of one issue, the Administrative Law Judge cannot address other issues raised in the petition or during testimony.
Alj Quote
Because Petitioner only paid for the adjudication of one (1) issue, this Tribunal may not address all of the issues Petitioner raised in her petition or during her testimony.
Legal Basis
ARIZ. REV. STAT. § 32-2199.05
Topic Tags
procedure
jurisdiction
filing fees
Question
What happens if I cite Condominium statutes in a dispute regarding a Planned Community?
Short Answer
The claims will likely be dismissed as moot or inapplicable.
Detailed Answer
Different statutes regulate Condominiums (Title 33, Chapter 9) and Planned Communities (Title 33, Chapter 16). If a homeowner alleges violations of statutes that do not govern their specific type of association, the burden of proof is not met and the concerns are rendered moot.
Alj Quote
However, because Petitioner’s amended petition specifically alleges violations of ARIZ. REV. STAT. § 33-1248(A), 33-1248(B) and 33-1261(D), which are inapplicable as the Association is not subject to governance or regulation by these statutes, the concerns are rendered moot.
Legal Basis
ARIZ. REV. STAT. Title 33, Chapter 9 vs. Chapter 16
Topic Tags
legal standards
statutes
planned communities
Question
Does the HOA posting my private correspondence on the community website violate bylaws regarding special meetings?
Short Answer
No. Public dissemination of private letters does not violate bylaws strictly governing the calling of meetings.
Detailed Answer
While a homeowner may feel that publishing private correspondence is retaliatory or malicious, it does not constitute a violation of bylaws specifically designed to regulate the calling and holding of special meetings.
Alj Quote
Instead, Petitioner’s grievance is the Association’s public dissemination and address of her private correspondence; which is not a violation of Bylaws Section 3.03.
Legal Basis
Bylaws Section 3.03
Topic Tags
privacy
bylaws
communications
Question
Can the ADRE hear claims regarding my constitutional rights or general 'rights as a homeowner'?
Short Answer
No. The Department's jurisdiction is limited to violations of community documents and specific statutes.
Detailed Answer
The Department lacks jurisdiction over broad claims such as constitutional rights, general homeowner rights, or fiduciary responsibilities unless they are framed as specific violations of the community documents or relevant statutes.
Alj Quote
Petitioner also alleged no less than four (4) additional violations in her Amended Petition that the Department has no jurisdiction over or she lacked standing to bring, such as (1) 'my rights as a homeowner,' (2) 'my constitutional rights as an American citizen'…
Legal Basis
ARIZ. REV. STAT. §§ 32-2102, 32-2199
Topic Tags
jurisdiction
constitutional rights
adre authority
Question
Can I claim the HOA violated the rules for calling a special meeting if I never formally requested one?
Short Answer
No. The issue is considered 'unripe' if no meeting was actually requested or held.
Detailed Answer
A violation regarding the calling of a special meeting cannot be established if the homeowner never submitted the request for the meeting prior to filing the petition. The tribunal cannot rule on a hypothetical refusal.
Alj Quote
No violation of Bylaws Section 3.03 exists because the issue is unripe. Here, the record reflects that a special meeting was not held, nor had Petitioner requested one prior to the filing of her petition in this matter.
Legal Basis
ripeness doctrine
Topic Tags
meetings
procedural requirements
violations
Question
What is the standard of proof required for a homeowner to win an administrative hearing?
Short Answer
Preponderance of the evidence.
Detailed Answer
The petitioner must provide enough evidence to convince the judge that their contention is 'more probably true than not.' It requires superior evidentiary weight, not necessarily a greater number of witnesses.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
burden of proof
legal standards
evidence
Question
Are the CC&Rs considered a legal contract between me and the HOA?
Short Answer
Yes. CC&Rs form an enforceable contract that binds the owner upon purchase.
Detailed Answer
When a party purchases a property within the development, they agree to be bound by the terms of the CC&Rs and Bylaws, creating a contractual relationship.
Alj Quote
Thus, the CC&Rs form an enforceable contract between the Association and each property owner, and the Bylaws outline how the Association is permitted to operate.
Legal Basis
Contract Law Principles
Topic Tags
CC&Rs
contracts
enforcement
Case
Docket No
21F-H2121048-REL
Case Title
Nancy Bender vs. Foothills Townhomes Association, Inc.
ARIZ. REV. STAT. § 33-1805; Association Bylaws Article 11.3
Outcome Summary
The Administrative Law Judge denied the petition in its entirety, concluding that the Petitioner failed to meet the burden of proof required to show that the El Rio Community Association violated statutory or community document requirements regarding access to records.
Why this result: Petitioner failed to prove the alleged violations by a preponderance of the evidence.
Key Issues & Findings
Failure to fulfill a records request
Petitioner, a member and Board Director, requested to inspect Association books and records on March 30, 2021. Petitioner alleged the Association failed to completely fulfill the request. The ALJ determined that Petitioner failed to meet the burden of proof to demonstrate a violation of the governing statute or bylaws.
Orders: Petitioner's petition and request to levy a civil penalty against Respondent were denied. Respondent was not ordered to reimburse Petitioner's filing fee.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 33-1805
Association Bylaws Article 11.3
Analytics Highlights
Topics: Records Request, HOA Bylaws, A.R.S. 33-1805
Additional Citations:
ARIZ. REV. STAT. § 33-1805
Association Bylaws Article 11.3
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et al.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. §§ 32-2199.01(D)
ARIZ. REV. STAT. §§ 32-2199.02
ARIZ. REV. STAT. §§ 41-1092
ARIZ. ADMIN. CODE R2-19-119
ARIZ. REV. STAT. § 33-1804
ARIZ. REV. STAT. § 32-2199.02(A)
ARIZ. REV. STAT. § 32-2199.01
ARIZ. REV. STAT. § 32-2199.02(B)
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
21F-H2121053-REL Decision – 904187.pdf
Uploaded 2026-01-23T17:38:10 (114.1 KB)
Questions
Question
How long does my HOA have to fulfill a request to examine records?
Short Answer
The HOA has ten business days to fulfill a request for examination.
Detailed Answer
According to Arizona statute, an association is granted a period of ten business days to comply with a member's request to examine financial and other records.
Alj Quote
The association shall have ten business days to fulfill a request for examination.
Legal Basis
A.R.S. § 33-1805(A)
Topic Tags
records request
timelines
HOA obligations
Question
Can the HOA charge me a fee to simply look at the books and records?
Short Answer
No, the HOA cannot charge a member for making material available for review.
Detailed Answer
State law prohibits the association from charging a member (or their designated representative) any fee for the act of making records available for inspection.
Alj Quote
The association shall not charge a member or any person designated by the member in writing for making material available for review.
Legal Basis
A.R.S. § 33-1805(A)
Topic Tags
records request
fees
homeowner rights
Question
How much can the HOA charge me if I want copies of the records?
Short Answer
The HOA may charge up to fifteen cents per page for copies.
Detailed Answer
While review is free, if a member requests physical copies of records, the association is legally permitted to charge a fee, capped at fifteen cents per page.
Alj Quote
An association may charge a fee for making copies of not more than fifteen cents per page.
Legal Basis
A.R.S. § 33-1805(A)
Topic Tags
records request
fees
copies
Question
Is the HOA allowed to withhold certain records from me?
Short Answer
Yes, specific categories of records, such as privileged attorney communications or employee records, can be withheld.
Detailed Answer
The law provides exceptions to disclosure for sensitive information, including privileged attorney-client communications, pending litigation, closed session minutes, and personal or financial records of individual members or employees.
Alj Quote
Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to… Privileged communication between an attorney for the association and the association.
Legal Basis
A.R.S. § 33-1805(B)
Topic Tags
records request
exclusions
privacy
Question
Can I see records regarding complaints against specific HOA employees?
Short Answer
No, records regarding specific complaints against individual employees can be withheld.
Detailed Answer
The HOA is not required to disclose records that relate to specific complaints against an individual employee of the association or a contractor.
Alj Quote
Records relating to… specific complaints against an individual employee of the association or an individual employee of a contractor of the association who works under the direction of the association [may be withheld].
Legal Basis
A.R.S. § 33-1805(B)(5)
Topic Tags
records request
employees
privacy
Question
What standard of proof do I need to meet to win a dispute hearing against my HOA?
Short Answer
You must prove your case by a 'preponderance of the evidence.'
Detailed Answer
The petitioner (homeowner) bears the burden of proof. This means you must provide enough evidence to convince the judge that your claim is more probably true than not.
Alj Quote
Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.
Legal Basis
Conclusion of Law 3
Topic Tags
hearing procedure
burden of proof
legal standards
Question
If I believe documents are missing from my request, is my belief enough to prove a violation?
Short Answer
No, you must present credible evidence that the specific undisclosed documents actually exist.
Detailed Answer
Merely alleging that documents are missing is insufficient. The homeowner must provide credible evidence demonstrating that the documents requested actually exist and were withheld.
Alj Quote
Petitioner presented no credible evidence that documents existed which were not disclosed.
Legal Basis
Findings of Fact 18
Topic Tags
evidence
records request
burden of proof
Question
Does an HOA Director have different inspection rights than a regular homeowner?
Short Answer
Yes, Directors generally have an absolute right to inspect all books and records at any reasonable time.
Detailed Answer
Association bylaws often grant Directors broader access than general members, allowing them the absolute right to inspect all documents and physical properties at reasonable times.
Alj Quote
Every Director shall have the absolute right at any reasonable time to inspect all books, records, and documents of the Association and the physical properties owned or controlled by the Association.
Legal Basis
Association Bylaws Article 11.3
Topic Tags
board members
directors
inspection rights
Case
Docket No
21F-H2121053-REL
Case Title
Michael E Palacios vs. El Rio Community Association
Decision Date
2021-08-13
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Questions
Question
How long does my HOA have to fulfill a request to examine records?
Short Answer
The HOA has ten business days to fulfill a request for examination.
Detailed Answer
According to Arizona statute, an association is granted a period of ten business days to comply with a member's request to examine financial and other records.
Alj Quote
The association shall have ten business days to fulfill a request for examination.
Legal Basis
A.R.S. § 33-1805(A)
Topic Tags
records request
timelines
HOA obligations
Question
Can the HOA charge me a fee to simply look at the books and records?
Short Answer
No, the HOA cannot charge a member for making material available for review.
Detailed Answer
State law prohibits the association from charging a member (or their designated representative) any fee for the act of making records available for inspection.
Alj Quote
The association shall not charge a member or any person designated by the member in writing for making material available for review.
Legal Basis
A.R.S. § 33-1805(A)
Topic Tags
records request
fees
homeowner rights
Question
How much can the HOA charge me if I want copies of the records?
Short Answer
The HOA may charge up to fifteen cents per page for copies.
Detailed Answer
While review is free, if a member requests physical copies of records, the association is legally permitted to charge a fee, capped at fifteen cents per page.
Alj Quote
An association may charge a fee for making copies of not more than fifteen cents per page.
Legal Basis
A.R.S. § 33-1805(A)
Topic Tags
records request
fees
copies
Question
Is the HOA allowed to withhold certain records from me?
Short Answer
Yes, specific categories of records, such as privileged attorney communications or employee records, can be withheld.
Detailed Answer
The law provides exceptions to disclosure for sensitive information, including privileged attorney-client communications, pending litigation, closed session minutes, and personal or financial records of individual members or employees.
Alj Quote
Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to… Privileged communication between an attorney for the association and the association.
Legal Basis
A.R.S. § 33-1805(B)
Topic Tags
records request
exclusions
privacy
Question
Can I see records regarding complaints against specific HOA employees?
Short Answer
No, records regarding specific complaints against individual employees can be withheld.
Detailed Answer
The HOA is not required to disclose records that relate to specific complaints against an individual employee of the association or a contractor.
Alj Quote
Records relating to… specific complaints against an individual employee of the association or an individual employee of a contractor of the association who works under the direction of the association [may be withheld].
Legal Basis
A.R.S. § 33-1805(B)(5)
Topic Tags
records request
employees
privacy
Question
What standard of proof do I need to meet to win a dispute hearing against my HOA?
Short Answer
You must prove your case by a 'preponderance of the evidence.'
Detailed Answer
The petitioner (homeowner) bears the burden of proof. This means you must provide enough evidence to convince the judge that your claim is more probably true than not.
Alj Quote
Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.
Legal Basis
Conclusion of Law 3
Topic Tags
hearing procedure
burden of proof
legal standards
Question
If I believe documents are missing from my request, is my belief enough to prove a violation?
Short Answer
No, you must present credible evidence that the specific undisclosed documents actually exist.
Detailed Answer
Merely alleging that documents are missing is insufficient. The homeowner must provide credible evidence demonstrating that the documents requested actually exist and were withheld.
Alj Quote
Petitioner presented no credible evidence that documents existed which were not disclosed.
Legal Basis
Findings of Fact 18
Topic Tags
evidence
records request
burden of proof
Question
Does an HOA Director have different inspection rights than a regular homeowner?
Short Answer
Yes, Directors generally have an absolute right to inspect all books and records at any reasonable time.
Detailed Answer
Association bylaws often grant Directors broader access than general members, allowing them the absolute right to inspect all documents and physical properties at reasonable times.
Alj Quote
Every Director shall have the absolute right at any reasonable time to inspect all books, records, and documents of the Association and the physical properties owned or controlled by the Association.
Legal Basis
Association Bylaws Article 11.3
Topic Tags
board members
directors
inspection rights
Case
Docket No
21F-H2121053-REL
Case Title
Michael E Palacios vs. El Rio Community Association
Decision Date
2021-08-13
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Michael E Palacios(petitioner) Property owner and member of the Association; was appointed to the Board,
Respondent Side
Quinten T. Cupps(HOA attorney) Represented El Rio Community Association
Denise Ferreira(property manager, witness) D & E Management Owns D & E Management and was the manager for the Association
Neutral Parties
Adam D. Stone(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
The final decision affirmed the denial of Issues 1, 2, and 3, and the granting of Issue 4. The Association was found to have violated ARIZ. REV. STAT. § 33-1805 for failing to provide complete records in a timely manner, resulting in the reimbursement of 1/4 of the filing fee.
Why this result: Petitioners failed to sustain the burden of proof regarding alleged violations of CC&Rs Section 5, Architectural Design Guidelines Section 4.0, and A.R.S. § 33-1804(A), (D), and (E).
Key Issues & Findings
Alleged violation of CC&Rs Section 5
Petitioners alleged that the HOA violated the Covenants, Conditions and Restrictions (CC&Rs), Section 5, by allowing construction on Lot 7 without prior ARC approval of required documents.
Orders: Petition denied.
Filing fee: $125.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
CC&Rs Section 5
Alleged violation of Community Agricultural Design Guidelines Section 4.0
Petitioners alleged that the HOA violated the Architectural Design Guidelines, Section 4.0, by failing to require the required $5,000.00 Construction Compliance Deposit for Lot 7.
Orders: Petition denied.
Filing fee: $125.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
Architectural Design Guidelines Section 4.0
ARIZ. REV. STAT. § 10-3821
Alleged violation of A.R.S. § 33-1804(A), (D), and (E)
Petitioners alleged that the Board conducted an unnoticed closed meeting in violation of Arizona open meeting statutes.
Orders: Petition denied.
Filing fee: $125.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 33-1804(A)
ARIZ. REV. STAT. § 33-1804(D)
ARIZ. REV. STAT. § 33-1804(E)
ARIZ. REV. STAT § 10-3821
Alleged violation of A.R.S. § 33-1805
Petitioners alleged that the HOA failed to timely and completely fulfill a records request submitted on June 04, 2020, specifically by failing to provide missing email attachments.
Orders: Respondent must reimburse 1/4 of Petitioners' filing fee ($125.00). Respondent must henceforth comply with A.R.S. § 33-1805 and provide the missing email attachments within 10-business days.
Filing fee: $125.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
ARIZ. REV. STAT. § 33-1805
Analytics Highlights
Topics: HOA Statute Violation, Records Request, Filing Fee Refund, Architectural Review, Open Meetings
Briefing Document: Burnes v. Saguaro Crest Homeowners Association
Executive Summary
This document synthesizes the findings and legal proceedings in the case of Clifford (Norm) and Maria Burnes (“Petitioners”) versus the Saguaro Crest Homeowners Association, Inc. (“Respondent”). The dispute, adjudicated by the Arizona Office of Administrative Hearings (OAH), centered on a four-issue petition filed by the Burnes on July 17, 2020. The allegations concerned construction on a neighboring property (Lot 7), specifically violations of architectural rules, failure to collect a construction deposit, violations of open meeting laws, and failure to fulfill a records request.
The Administrative Law Judge (ALJ) found in favor of the Respondent on the first three issues, concluding that the association had not violated its Covenants, Conditions, and Restrictions (CC&Rs) regarding architectural control, had properly honored a waiver for the construction deposit, and had not violated state open meeting laws. However, the ALJ found that the Respondent did violate Arizona Revised Statute § 33-1805 by failing to provide copies of requested records within the statutory 10-day deadline and by providing an incomplete set of documents.
Following the initial decision, the Petitioners were granted a rehearing on the grounds of newly discovered evidence and an allegedly arbitrary decision. The rehearing affirmed the original findings, as the Petitioners conceded they possessed no new evidence that could not have been produced at the original hearing.
The final order requires the Respondent to reimburse the Petitioners for a portion of their filing fee, to comply with the records request statute moving forward, and to provide the specific missing documents from the original request.
Case Background and Procedural History
The case involves property owners Clifford (Norm) and Maria Burnes, who own Lot 6 in the Saguaro Crest subdivision in Tucson, Arizona, and their homeowners’ association. The dispute arose from the construction of a new home on the adjacent Lot 7.
• July 17, 2020: The Petitioners filed a four-issue petition with the Arizona Department of Real Estate.
• August 11, 2020: The Respondent HOA filed its answer, denying all four claims.
• August 19, 2020: The matter was referred to the Office of Administrative Hearings (OAH) for an evidentiary hearing.
• December 2020 & March 2021: Hearings were conducted before Administrative Law Judge Jenna Clark.
• March 22, 2021: The initial ALJ Decision was issued, denying the Petitioners’ claims on three issues but granting their petition on the fourth issue concerning the records request.
• April 28, 2021: The Petitioners filed a Dispute Rehearing Request on the grounds of “Newly discovered material evidence” and that the decision was “arbitrary, capricious, or an abuse of discretion.”
• May 21, 2021: The Commissioner of the Department of Real Estate granted the rehearing request.
• July 20, 2021: The rehearing was conducted.
• August 09, 2021: A Final Administrative Law Judge Decision was issued, affirming the original decision in its entirety.
Analysis of Allegations and Findings
The petition presented four distinct issues for adjudication. The findings for each are detailed below, based on the evidence presented in the hearings.
Issue 1: Alleged Violation of CC&Rs Section 5 (Architectural Control)
• Allegation: The Petitioners claimed the HOA allowed construction on Lot 7 to proceed without the required submission of documents to the Architectural Review Committee (ARC) for approval, specifically concerning modifications to the originally approved plans.
• Key Evidence:
◦ Petitioner Norm Burnes was a member of the ARC that unanimously approved the initial construction plans for Lot 7 on January 3, 2018.
◦ On October 21, 2018, and again on April 14, 2020, Mr. Burnes expressed concerns to the HOA Board that the placement of the home on Lot 7 deviated from the approved plans, negatively impacting the view and privacy of his own home on Lot 6.
◦ In a letter, Mr. Burnes stated, “Mr. Martinez did not honer the approved plan and has placed the house in the original position,” which he claimed was disharmonious and destroyed his view.
◦ The evidence showed that no additional or modified plans were ever submitted to the ARC for review after the initial January 2018 approval.
◦ The construction plans for Lot 7 were approved by Pima County on May 4, 2018.
• Conclusion:No violation found. The ALJ concluded that the “ARC cannot approve or deny proposed plans unless they are submitted for review.” Since no modified plans were ever presented, the ARC did not violate the CC&Rs. The decision also noted that the construction complied with the local government’s building authority.
• Allegation: The Petitioners claimed the HOA allowed construction on Lot 7 without collecting the required $5,000 refundable Construction Compliance Deposit.
• Key Evidence:
◦ In a meeting on May 3, 2020, the HOA Board of Directors decided to honor a Construction Compliance Deposit Waiver that had been previously granted to the Martinez family (owners of Lot 7).
◦ The rationale for such waivers was that they were granted during an economic downturn to incentivize property purchases in the subdivision.
◦ Crucially, the HOA “does not possess a corporate record that any such Construction Compliance Deposit Waiver was previously granted to the Martinez family.”
• Conclusion:No violation found. The ALJ determined that it was “clear that Lot 7 was granted a construction compliance deposit waiver.” The lack of a documented record explaining the details of the waiver was acknowledged but considered moot because it was not a specifically “noticed issue” in the petition.
• Allegation: The Petitioners claimed the HOA Board conducted an unnoticed meeting on or about May 20, 2020, to consider matters relevant to Petitioner Norm Burnes, violating state open meeting laws.
• Key Evidence:
◦ On April 18, 2020, Mr. Burnes requested an urgent meeting with the Board, which was held the following day.
◦ On May 20, 2020, the Board acted via unanimous written consent, as permitted under A.R.S § 10-3821, to restrict Mr. Burnes’s participation as an ARC member only on matters related to Lot 7.
◦ The Board’s written consent stated, “[T]he Board of Directors hereby unanimously agree that [Petitioner] be removed as an ARC Member for all ARC related matters concerning Lot 7.” This action was taken due to Mr. Burnes’s personal complaints against the Lot 7 owner, creating a conflict of interest.
• Conclusion:No violation found. The ALJ found that the Board’s failure to notice the April 19 meeting was an excused exception because the Petitioner himself had requested it as an urgent matter. The action on May 20 was not an illegal meeting but a permissible action taken via written consent without a meeting. Furthermore, the Board did not remove Mr. Burnes from the ARC entirely, but only restricted his involvement on the specific issue where he had a conflict.
Issue 4: Alleged Violation of A.R.S. § 33-1805 (Records Request)
• Allegation: The Petitioners claimed the HOA failed to fulfill a records request in accordance with state law.
• Key Evidence:
◦ On June 4, 2020, the Petitioners submitted a comprehensive request to review “ALL of the documents of the HOA” and for copies of documents falling into 17 specific categories, demanding fulfillment within 10 days.
◦ The statutory deadline for the HOA to comply with both the review and copy requests was June 18, 2020.
◦ The HOA made the documents available for review on June 16, 2020 (within the deadline).
◦ However, the HOA provided copies of the documents only on June 24, 2020, six days past the statutory deadline.
◦ Upon receiving the copies, Mr. Burnes notified the HOA the same day that “[S]ome of the attachments for some emails are not included within in this package from this documentation.” [sic]
• Conclusion:Violation found. The ALJ determined that the HOA violated the statute, which requires copies of requested records to be provided within ten business days. The Respondent’s argument that the Petitioner’s clarification on June 16 reset the deadline was explicitly rejected. The decision also noted that the documents provided were incomplete.
The Rehearing
The Petitioners’ request for a rehearing was granted, but it did not alter the case’s outcome.
• Grounds for Rehearing: The request was based on claims of newly discovered evidence and that the original findings on issues 1-3 were arbitrary or capricious.
• Rehearing Proceedings: During the rehearing, the “Petitioners offered no ‘new’ evidence and instead conceded that they wished to present evidence which they had in their possession during the prior hearing, that they markedly had decided not to present.”
• Outcome: Because no new evidence was presented, the Petitioners were precluded from recalling witnesses or offering additional exhibits. The ALJ found no basis to alter the original findings and affirmed the March 22, 2021, decision.
Final Order
The Final Administrative Law Judge Decision, dated August 9, 2021, affirmed the original order. The Respondent, Saguaro Crest Homeowners Association, is mandated to perform the following actions:
1. Denial and Granting of Petitions: The Petitioners’ petition is denied for Issues 1, 2, and 3. The petition is granted for Issue 4.
2. Reimbursement: The Respondent must reimburse the Petitioners for one-quarter of their filing fee, amounting to $500.00, to be paid in certified funds.
3. Future Compliance: The Respondent must henceforth comply with the requirements of A.R.S. § 33-1805 regarding member access to association records.
4. Provision of Documents: The Respondent must provide the Petitioners with the missing email attachments related to the June 4, 2020, records request within 10 business days of the final order’s effective date.
Study Guide – 21F-H2120002-REL-RHG
Study Guide: Burnes v. Saguaro Crest Homeowners Association, Inc.
Short-Answer Quiz
Instructions: Answer the following ten questions based on the provided source documents. Each answer should be approximately two to three sentences.
1. Identify the primary parties in this legal dispute and describe their relationship within the Saguaro Crest community.
2. What were the four specific allegations the Petitioners filed against the Respondent on July 17, 2020?
3. Explain Petitioner Norm Burnes’s initial role with the Architectural Review Committee (ARC) and how the Board of Directors later altered his participation.
4. Describe the controversy surrounding the $5,000 Construction Compliance Deposit for the construction on Lot 7.
5. What was the central grievance expressed by the Petitioners regarding the placement and construction of the new home on Lot 7?
6. What action did the Board of Directors take on May 20, 2020, without a formal, noticed meeting, and under what legal authority did they act?
7. Summarize the timeline and outcome of the Petitioners’ June 4, 2020, records request to the Association.
8. Why did the Administrative Law Judge ultimately rule in favor of the Petitioners on Issue 4, regarding the violation of ARIZ. REV. STAT. § 33-1805?
9. On what grounds did the Petitioners request a rehearing, and what was the judge’s finding regarding the “new evidence” they wished to present?
10. What was the final, affirmed order issued by the Administrative Law Judge in this case?
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Answer Key
1. The primary parties are Clifford (Norm) S. and Maria Burnes (the “Petitioners”) and the Saguaro Crest Homeowners Association, Inc. (the “Respondent”). The Petitioners are property owners in the Saguaro Crest subdivision, making them members of the Association, which is the governing body for the community.
2. The Petitioners alleged that the Association (1) improperly allowed construction on Lot 7 without required ARC approval in violation of CC&Rs Section 5; (2) allowed this construction without the required Construction Compliance Deposit; (3) conducted an unnoticed meeting in violation of ARIZ. REV. STAT. § 33-1804; and (4) failed to fulfill a records request in violation of ARIZ. REV. STAT. § 33-1805.
3. Petitioner Norm Burnes was named to serve as an Architecture Review Committee (ARC) member effective December 5, 2017, and he participated in the unanimous approval of the Lot 7 construction plans. On May 20, 2020, the Board of Directors restricted his participation as an ARC member for all matters concerning Lot 7 due to his personal complaints, which created a conflict of interest.
4. The Association’s Architectural Design Guidelines require a refundable $5,000 Construction Compliance Deposit. The Board decided to honor a discretionary waiver for Lot 7, which was said to have been granted during an economic downturn to incentivize purchases, though the Association possessed no corporate record of the waiver being granted.
5. The Petitioners’ central grievance was that the house on Lot 7 was placed too close to their backyard (on Lot 6), destroying their views, violating their privacy, and causing stress. They contended that the owner of Lot 7 did not honor the approved plan and built the house in its original, unapproved position.
6. On May 20, 2020, the Board of Directors acted without a noticed meeting to restrict Petitioner Norm Burnes’s participation on the ARC for matters related to Lot 7. They acted under the authority of ARIZ. REV. STAT § 10-3821, which permits action without a meeting if all directors provide written consent, which they obtained via individual signatures.
7. On June 4, 2020, Petitioners requested to review all Association records and receive copies of documents from 17 specific categories. The Association offered a review on June 16 (within the 10-day limit), but did not provide the requested copies until June 24, which was after the statutory deadline of June 18. Furthermore, the copies provided were incomplete, missing some email attachments.
8. The Judge ruled a violation occurred because the Association failed to provide copies of the requested records within the ten business days mandated by the statute. The Judge rejected the Association’s argument that the Petitioner’s clarification on June 16 reset the deadline, stating the Association was obligated to timely clarify and provide the documents.
9. The Petitioners requested a rehearing on the grounds of “Newly discovered material evidence” and that the initial decision was “arbitrary, capricious, or an abuse of discretion.” The judge found that the Petitioners offered no new evidence, but rather wished to present evidence they had possessed but strategically chose not to use in the original hearing.
10. The final, affirmed order granted the Petitioners’ petition regarding Issue 4 and denied it for Issues 1-3. The Respondent was ordered to reimburse the Petitioners for ¼ of their filing fee ($500.00), comply with ARIZ. REV. STAT. § 33-1805 going forward, and provide the missing email attachments from the records request within 10 business days.
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Essay Questions
Instructions: The following questions are designed for a more in-depth, essay-style response. Answers are not provided.
1. Analyze the legal concept of “burden of proof by a preponderance of the evidence” as it was applied in this case. Explain why the Administrative Law Judge concluded that the Petitioners successfully met this burden for the records request violation but failed to do so for their allegations concerning the CC&Rs, the construction deposit, and the open meeting laws.
2. Discuss the role, authority, and limitations of a Homeowners’ Association’s Architectural Review Committee (ARC) as depicted in the source documents. Evaluate the Saguaro Crest ARC’s actions and failures to act regarding the construction on Lot 7, and explain why the Judge determined that no violation of CC&Rs Section 5 had occurred.
3. Examine the conflict of interest involving Petitioner Norm Burnes’s dual roles as an aggrieved neighbor and a member of the ARC. Detail how this conflict emerged, the specific actions the Board of Directors took to address it, and the legal justification for those actions.
4. Trace the full timeline of events related to the Board of Directors’ meetings in April and May 2020. Analyze the Petitioners’ claim that these constituted a violation of Arizona’s open meeting laws (ARIZ. REV. STAT. § 33-1804) and the Judge’s legal reasoning for concluding that no violation was established.
5. Evaluate the Petitioners’ request for a rehearing. Based on the Final Administrative Law Judge Decision, explain the legal standard for granting a rehearing based on “newly discovered material evidence” and why the Petitioners’ offer of proof failed to meet this standard.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The presiding official (Jenna Clark) at the Office of Administrative Hearings who hears evidence, makes Findings of Fact and Conclusions of Law, and issues orders in the case.
Architectural Review Committee (ARC)
A committee established by the Association’s CC&Rs, charged with implementing Architectural Guidelines to maintain aesthetic standards within the community. In this case, Petitioner Norm Burnes was a member.
Arizona Department of Real Estate (Department)
The state agency authorized to receive and decide petitions for hearings from members of homeowners’ associations in Arizona.
ARIZ. REV. STAT.
Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona. Specific statutes, such as § 33-1804 (open meeting laws) and § 33-1805 (records access), were central to this case.
Board of Directors (the Board)
The overseeing body of the Saguaro Crest Homeowners Association, comprised of a President, Vice President, and Treasurer.
Burden of Proof
The obligation of a party in a legal proceeding (in this case, the Petitioners) to produce evidence that proves the claims they have made against the other party.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing documents for the Saguaro Crest community that form an enforceable contract between the Association and each property owner, controlling aspects of property use.
Construction Compliance Deposit (CCD)
A refundable $5,000.00 deposit required by Section 4.0 of the Association’s Architectural Design Guidelines, which became a point of contention regarding Lot 7.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona where the evidentiary hearings for this case were held.
Petitioners
Clifford (Norm) S. Burnes and Maria Burnes, the property owners of Lot 6 who filed the petition against the Homeowners Association.
Preponderance of the Evidence
The standard of proof required in this proceeding, defined as evidence that is more convincing and has superior weight, making it more probable that a contention is true than not true.
Respondent
The Saguaro Crest Homeowners Association, Inc., the non-profit corporation governing the subdivision and the party against whom the petition was filed.
Blog Post – 21F-H2120002-REL-RHG
He Sued His HOA and Won… Sort Of. 4 Shocking Lessons from a Neighbor vs. HOA Showdown
Introduction: The Neighbor’s Nightmare
It’s a scenario that sparks anxiety for any homeowner: you look out your window and see the first signs of a new construction project on the property next door. The questions immediately flood your mind. Will it block my view? Will I lose my privacy? Will this new structure change the character of the neighborhood I love?
When a decision by a Homeowners’ Association (HOA) feels threatening, the impulse to fight back is strong. But what does that fight actually look like, and what does it mean to “win”?
The real-life case of the Burnes family versus the Saguaro Crest HOA in Arizona provides a masterclass in the unexpected realities of neighbor-versus-HOA disputes. They took their fight to an administrative hearing, and the official legal decision reveals surprising and counter-intuitive lessons for any homeowner. Here are the four most impactful takeaways from that legal showdown—critical warnings for anyone who thinks going to battle with their HOA is a straightforward affair.
1. He Helped Approve the Plans He Grew to Hate
In a turn of profound irony, the petitioner leading the charge against the HOA, Mr. Norm Burnes, was a serving member of the very committee that set the entire conflict in motion: the HOA’s Architectural Review Committee (ARC).
On January 3, 2018, the ARC, including Mr. Burnes, unanimously approved the construction plans for the neighboring home on Lot 7. At the time, they were just plans on paper. But more than two years would pass before Mr. Burnes raised an alarm—long after the abstract lines on a page had become concrete and steel next door. On April 14, 2020, with construction underway, the reality of the new build became a personal grievance. Mr. Burnes wrote to the board, explaining that the new house was a “constant source of stress” for his family, that his privacy was “violated / gone,” and that his cherished views were “destroyed.”
In his own words, the impact was devastating:
“A large part of the value to me for my house was the view from the back patio. That’s gone now. The view from my kitchen and bedroom windows are destroyed.”
This is a powerful lesson in unintended consequences. It reveals how abstract plans can become deeply personal issues once construction begins. More importantly, it highlights the inherent conflict that can arise when a homeowner acts in an official capacity for the community while also trying to protect their own personal interests.
2. The HOA Won on Substance, But Lost on a Technicality
The Burnes family filed a formal petition with four distinct allegations against their HOA. In a striking outcome, the judge sided with the HOA on the three major, substantive issues at the heart of the dispute.
• Construction Plans: The judge found the HOA was not at fault for the final build. No modified plans were ever submitted for the ARC to review after the initial approval, and the construction itself complied with the local government’s authority.
• $5,000 Deposit: The judge concluded that the Lot 7 owner had been granted a waiver for the required construction deposit, even though the HOA lacked a formal record of it—a stroke of luck for the board that highlights the critical importance of meticulous record-keeping.
• Improper Meeting: The judge determined that the Board had not improperly removed Mr. Burnes from the ARC; they had only “removed [him] as an ARC Member for all ARC related matters concerning Lot 7,” a targeted recusal due to his direct conflict of interest, not a full removal from the committee. Furthermore, the meeting Mr. Burnes complained about was deemed a valid emergency meeting held at his own request.
Despite winning on these core points, the HOA was found in violation of the law on the fourth issue: a simple procedural error. The HOA had violated Arizona statute ARIZ. REV. STAT. § 33-1805 by failing to provide copies of requested records within the legally mandated 10-business day deadline. While the HOA allowed the Burnes family to review the documents on time (on June 16, within the June 18 deadline), they failed to provide the physical copies until June 24, four business days past the legal deadline.
This demonstrates a critical lesson for any organization. An entity can win the arguments on major issues but still be found in violation of the law for a minor administrative slip-up. Procedural diligence isn’t just good practice; it’s a legal requirement that can define the outcome of a case.
3. A Legal “Victory” Doesn’t Always Solve the Real Problem
So, what did the Burnes family “win” after their long and stressful legal battle? The judge’s final order was clear and specific. They received:
• A reimbursement of 1/4 of their filing fee ($500).
• An order for the HOA to provide the missing email attachments from their records request.
• An order for the HOA to comply with the records-request law in the future.
This outcome stands in stark contrast to Mr. Burnes’s original, deeply personal complaint. His fight began because the new house was a “constant source of stress” and had destroyed his backyard view. The legal ruling, however, did nothing to halt or alter the construction on Lot 7. The neighbor’s house, the very source of the entire conflict, remained exactly where it was.
This is a sobering look at the difference between a legal remedy and a practical solution. Winning in an administrative hearing is defined strictly by the letter of the law. The legal system addresses violations of statutes and governing documents, which may not align with—or offer any solution for—the personal grievance that ignited the conflict in the first place.
4. You Don’t Get a Do-Over for a Bad Strategy
Unhappy with the initial decision, the petitioners filed for a rehearing. The official grounds they cited were serious: they claimed to have “Newly discovered material evidence that could not with reasonable diligence have been discovered and produced at the original hearing.”
But when the rehearing began, the reality was quite different. As stated in the final decision, the petitioners conceded that they possessed no new evidence at all. Instead, they admitted they had strategically chosen not to present certain evidence during the first hearing and were now asking for a second chance to do so.
The judge’s response was swift and decisive. The petitioners were “precluded from recalling… witnesses, or offering additional exhibits,” and the original decision was affirmed.
This serves as a stark reminder that legal proceedings are formal and final. A trial or administrative hearing is not a practice run. The petitioners’ admission that they deliberately withheld evidence was a fatal strategic error, turning their request for a second chance into a confirmation of their first failure.
Conclusion: The Letter vs. The Spirit of the Law
The showdown between the Burnes family and the Saguaro Crest HOA is a compelling story of unintended consequences, procedural missteps, and strategic blunders. But taken together, the lessons reveal a single, powerful truth: the legal system is designed to correct violations of law, not to soothe personal grievances. The family won on a paperwork technicality but lost on every issue that mattered to their quality of life. The HOA won on the substance of the dispute but was penalized for failing to follow administrative rules.
The case leaves us with a critical question to consider. When you find yourself in a dispute, is it more important to be legally ‘right,’ or to find a practical resolution? As the Burnes family discovered, the two are not always the same thing.
Case Participants
Petitioner Side
Clifford Burnes(petitioner/ARC member) Saguaro Crest Homeowners Association, Inc. Also known as Norm S. Burnes
Maria Burnes(petitioner) Saguaro Crest Homeowners Association, Inc.
Cynthia F. Burnes(petitioner attorney) Counsel for Petitioners
Jacob A. Kubert(petitioner attorney) Counsel for Petitioners
Debora Brown(witness) Witness for Petitioners
Respondent Side
John Crotty(respondent attorney) Law Offices of Farley, Choate & Wood Counsel for Respondent
Kelsea Dressen(respondent attorney) Law Offices of Farley, Choate & Wood Counsel for Respondent (also listed as Kelsey P. Dressen)
Esmerelda Martinez(board member/witness) Saguaro Crest Homeowners Association, Inc. Board President
Dave Madill(board member) Saguaro Crest Homeowners Association, Inc. Board Vice President
Julie Stevens(board member) Saguaro Crest Homeowners Association, Inc. Board Treasurer
Raul Martinez(lot owner) Saguaro Crest Homeowners Association, Inc. Owner of Lot 7
Ramona Martinez(lot owner) Saguaro Crest Homeowners Association, Inc. Owner of Lot 7
Joseph Martinez(ARC member) Saguaro Crest Homeowners Association, Inc.
Jamie Argueta(ARC member) Saguaro Crest Homeowners Association, Inc.
Jesus Carranza(substitute ARC member) Saguaro Crest Homeowners Association, Inc.
Neutral Parties
Jenna Clark(ALJ) OAH
Judy Lowe(Commissioner) Arizona Department of Real Estate
Dan Gardener(ADRE staff) Arizona Department of Real Estate Recipient of order transmission (listed as DGardner)
c. serrano(administrative staff) Transmitted decision/order
The ALJ dismissed the Petitioner's complaint, finding that the Respondent HOA did not violate the open meeting law (A.R.S. § 33-1804) because the action was taken without a meeting via unanimous written consent as authorized by A.R.S. § 10-3821.
Why this result: The Petitioner did not meet the burden of proof to show that the alleged violation occurred, as the board acted without holding a formal meeting.
Key Issues & Findings
Violation of open meeting law by taking action via unanimous written consent
Petitioner alleged that the Board of Directors violated the open meeting law (A.R.S. § 33-1804) on May 3, 2020, by taking two actions using unanimous written consent of the Board members, which the Respondent claimed was permissible under A.R.S. § 10-3821 as action without a meeting.
Orders: Petitioner's petition is dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV STAT. 33-1804
ARIZ. REV STAT. 10-3821
Analytics Highlights
Topics: HOA, Open Meeting Law, Unanimous Written Consent, Rehearing, Planned Community
Additional Citations:
ARIZ. REV STAT. 33-1804
ARIZ. REV STAT. 10-3821
ARIZ. REV. STAT. 32-2199
ARIZ. REV. STAT. 32-2199.02(A)
ARIZ. REV. STAT. 41-1092.08
ARIZ. ADMIN. CODE R2-19-119
ARIZ. REV. STAT. 10-3701(F)
ARIZ. REV. STAT. 10-3071
Video Overview
Audio Overview
Decision Documents
21F-H2121051-REL Decision – 899423.pdf
Uploaded 2025-12-09T10:06:54 (101.7 KB)
21F-H2121051-REL Decision – 930803.pdf
Uploaded 2025-10-09T03:37:15 (46.9 KB)
21F-H2121051-REL Decision – 935756.pdf
Uploaded 2025-10-09T03:37:15 (124.8 KB)
Briefing Doc – 21F-H2121051-REL
Briefing Document: Burnes v. Saguaro Crest Homeowners Association
Executive Summary
This briefing document synthesizes the legal proceedings and final decision in the case of Clifford (Norm) Burnes versus the Saguaro Crest Homeowners Association, Inc. (Case No. 21F-H2121051-REL). The core of the dispute was Petitioner Burnes’s allegation that the HOA Board of Directors violated Arizona’s open meeting law for planned communities by taking two official actions on May 3, 2020, without holding a public meeting. The HOA defended its actions, stating that it utilized a provision in the Arizona statutes for non-profit corporations (ARIZ. REV. STAT. § 10-3821) that allows a board to take action “without a meeting” through the unanimous written consent of all directors.
The Administrative Law Judge (ALJ), Thomas Shedden, ultimately ruled in favor of the HOA. The key finding was that no “meeting” as defined by the open meeting law actually occurred on May 3, 2020. Instead, the Board President individually visited other board members to obtain signatures on consent forms. The ALJ concluded that the two relevant statutes—the open meeting law (§ 33-1803/1804) and the action-by-consent statute (§ 10-3821)—are not in conflict. An HOA board can legally use the action-by-consent procedure, but if it chooses to hold a meeting, it must comply with the open meeting law.
Mr. Burnes’s request for a rehearing, which raised several legal and jurisdictional arguments, was granted but ultimately denied on its merits. The ALJ systematically rejected each of Burnes’s arguments, reaffirming the original decision. The final order dismissed Mr. Burnes’s petition, making the HOA the prevailing party.
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Case Overview
• Petitioner: Clifford (Norm) Burnes
• Respondent: Saguaro Crest Homeowners Association, Inc.
• Case Number: 21F-H2121051-REL (and 21F-H2121051-REL-RHG for rehearing)
• Adjudicating Body: Arizona Office of Administrative Hearings
• Administrative Law Judge: Thomas Shedden
• Core Allegation: The Petitioner alleged that on May 3, 2020, the Respondent’s Board of Directors violated Arizona’s open meeting law (cited as ARIZ. REV STAT. § 33-1803 in the initial decision and § 33-1804 in the rehearing decision) by taking two formal actions via unanimous written consent without allowing members to attend and speak.
• Respondent’s Defense: The Respondent acknowledged taking action by unanimous consent but asserted this was permissible under ARIZ. REV. STAT. § 10-3821, which allows for action without a meeting. Therefore, the open meeting law did not apply.
Factual Background and Timeline
1. April 2020: Mr. Burnes and his wife raised two issues with the HOA Board concerning “lot 7,” which is adjacent to their property. The issues were related to a construction bond waiver and the placement of a house on the lot.
2. April 2020 (Post-Complaint): Following the complaint, research was conducted by Jamie Argueta, and emails were exchanged between Mr. Burnes, the Board members, and Mr. Argueta.
3. April 19 & 21, 2020: The Board members met with Mr. and Ms. Burnes to discuss the issues. Minutes were kept for these meetings.
4. Undated Discussions: Board President Esmerelda Sarina Martinez and Board member Mr. Madill had informal discussions with other HOA members, which Ms. Martinez characterized as “neighbors talking and not a meeting.”
5. May 3, 2020: Ms. Martinez, acting alone, drafted two unanimous consent forms. She personally brought the forms and related documents to the homes of the other Board members, who each read the information and signed. The two actions taken by consent were:
◦ Honoring a waiver of the construction deposit for lot 7.
◦ A decision regarding the placement of the home on lot 7.
6. August 29, 2020: The first regularly scheduled Board meeting after the May 3rd actions was held. The meeting minutes did not include an entry showing that the written consent documents had been filed with the corporate records, a requirement of § 10-3281(A).
Procedural History
• May 7, 2021: Mr. Burnes filed his petition with the Arizona Department of Real Estate, initially asserting seven violations but being required to select only one for adjudication due to paying a single fee. He selected the violation of members not being permitted to attend and speak before the Board took formal action on May 3, 2020.
• July 16, 2021: An initial hearing was held before ALJ Thomas Shedden.
• July 28, 2021: The ALJ issued a decision dismissing Mr. Burnes’s petition, finding he had not proven a violation because no meeting occurred on May 3, 2020.
• September 2, 2021 (approx.): Mr. Burnes filed a Rehearing Request.
• September 22, 2021: The Department of Real Estate granted the request for a rehearing.
• December 9, 2021: The ALJ issued an order concluding the rehearing matter, noting that since only legal issues were raised, the decision would be based on the existing record and supplemental briefs (though neither party filed one).
• January 3, 2022: The ALJ issued the final decision on the rehearing, once again dismissing the petition and upholding the original ruling. This order was final and binding, subject to judicial review in the Superior Court.
Analysis of Legal Arguments from Rehearing
In his request for a rehearing, Mr. Burnes raised six primary legal arguments against the initial decision. The ALJ addressed and rejected each one.
Petitioner’s Argument
ALJ’s Analysis and Conclusion
1. Limited Jurisdiction: The ALJ’s jurisdiction is limited to Title 33, Chapter 16 and does not include ARIZ. REV. STAT. § 10-3821.
Rejected. Jurisdiction was proper because Mr. Burnes alleged a violation of § 33-1804 (which is in Title 33, Ch. 16). Nothing prohibits a Respondent from raising defenses from outside Title 33, or the ALJ from considering them.
2. Inapplicability of § 10-3821: The statute for action-by-consent only applies to actions found in Title 10, Chapters 24-40. The actions the HOA took are not found there.
Rejected. The ALJ noted that Mr. Burnes himself acknowledged that “voting” is an action found within those chapters of Title 10, and voting is precisely the action that was taken by unanimous consent.
3. Conflict of Law (§ 10-3701(F)): Statute § 10-3701(F) states that in cases of inconsistency, Title 33 (planned communities) controls over Title 10.
Rejected. This analysis is flawed because § 10-3701(F) applies specifically to membership meetings (Title 10, Ch. 30). The statute for action by consent, § 10-3821, deals with directors’ meetings and is in a different chapter (Title 10, Ch. 31), which has no similar provision. The legislature’s choice to include this provision for membership meetings but not for board meetings indicates an intent to allow boards more latitude to act by consent.
4. Specific vs. General Statute: § 33-1804 is specific to planned communities and should control over § 10-3821, which applies to all non-profits. The policy of the state favors open meetings.
Rejected. This principle of statutory construction only applies when statutes are in conflict and cannot both be given effect. Here, they are not in conflict. Both can be given full effect: an HOA may take action without a meeting per § 10-3821, but if a meeting is held, it must follow the open meeting requirements of § 33-1804.
5. Bylaws Are Irrelevant: The ALJ wrongly cited the HOA’s bylaws allowing action-by-consent, because § 33-1804 applies “notwithstanding any provision in the… bylaws.”
Rejected. Mr. Burnes was correct that bylaws do not trump the open meeting law. However, he overlooked that § 10-3821 itself contains an exception: it does not apply if the corporation’s bylaws prohibit action by consent. The finding regarding the bylaws was necessary only to show that this exception did not apply to the HOA, thus making § 10-3821 available to them.
6. A Meeting Did Occur: Mr. Burnes asserted a meeting did take place on May 3, 2020.
Rejected. The ALJ found this position had several flaws: Mr. Burnes cited no evidence from the record to prove discussion occurred on May 3rd; he conflated prior meetings with the events of May 3rd; and he provided no legal authority to show that drawing on past discussions to draft a consent form constitutes a “meeting.” The ALJ also dismissed his reliance on new dictionary definitions not presented at the original hearing.
◦ Mandates that “all meetings of the members’ association and the board of directors… are open to all members of the association.”
◦ Members “shall be permitted to attend and speak at an appropriate time during the deliberations and proceedings.”
◦ A “quorum of the board of directors that meets informally to discuss association business… shall comply with the open meeting and notice provisions.”
◦ Reflects a state policy that provisions should be construed “in favor of open meetings.”
• ARIZ. REV. STAT. § 10-3821 (Action Without Meeting):
◦ “Unless the articles of incorporation or bylaws provide otherwise, action… to be taken at a directors’ meeting may be taken without a meeting if the action is taken by all of the directors.”
◦ The action must be evidenced by one or more written consents, signed by each director, and included in the minutes filed with corporate records.
◦ A consent signed under this section has “the effect of a meeting vote.”
• Saguaro Crest HOA Bylaws (Section 3.5):
◦ The association’s bylaws explicitly provide directors with “the right to take any action in the absence of a meeting, which they could take at a meeting by obtaining the written consent of all the directors.”
Conclusion and Final Order
The Administrative Law Judge concluded that Mr. Burnes failed to meet his burden of proof to show that the Saguaro Crest HOA violated the open meeting law. The central finding was that the HOA’s actions on May 3, 2020, did not constitute a “meeting” but were a legally permissible “action without a meeting” under ARIZ. REV. STAT. § 10-3821. The subsequent rehearing confirmed this legal interpretation.
The final order, issued January 3, 2022, was:
“IT IS ORDERED that Petitioner Clifford (Norm) Burnes’s petition is dismissed.”
The order was final and binding, with any further appeal requiring judicial review by the Superior Court within 35 days.
Study Guide – 21F-H2121051-REL
Study Guide: Burnes v. Saguaro Crest Homeowners Association, Inc.
This study guide provides a review of the administrative law case involving Petitioner Clifford (Norm) Burnes and Respondent Saguaro Crest Homeowners Association, Inc. It includes a short-answer quiz, an answer key, essay questions, and a glossary of key terms based on the provided legal decisions.
Short-Answer Quiz
Answer each question in 2-3 sentences, based on the information in the case documents.
1. What was the single, specific violation that Clifford (Norm) Burnes alleged against the Saguaro Crest Homeowners Association’s Board of Directors?
2. What was the Respondent’s primary legal justification for the actions its Board of Directors took on May 3, 2020?
3. What two specific decisions did the Board make using the unanimous consent forms on May 3, 2020?
4. According to the Administrative Law Judge (ALJ), how can both the open meeting law (§ 33-1804) and the statute allowing action without a meeting (§ 10-3821) be given effect without being in conflict?
5. What was the purpose of the rehearing granted to Mr. Burnes, and what was the outcome?
6. How did the HOA’s bylaws, specifically section 3.5, support the Respondent’s case?
7. What argument did Mr. Burnes make regarding the ALJ’s jurisdiction to consider ARIZ. REV. STAT. section 10-3821?
8. What is the standard of proof required in this matter, and who bears the burden of meeting it?
9. Mr. Burnes asserted that a meeting did occur on May 3, 2020. What flaws did the ALJ identify in this assertion?
10. What specific requests did Mr. Burnes make in his petition as a remedy for the alleged violation?
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Quiz Answer Key
1. Mr. Burnes’s single alleged violation was that at the “meeting” on May 3, 2020, HOA members were not permitted to attend and speak after discussion but before the Board took formal action. This, he claimed, was a violation of Arizona’s open meeting law, cited as ARIZ. REV STAT. § 33-1803 and later § 33-1804.
2. The Respondent acknowledged taking two actions by consent but argued that no meeting actually occurred. Their defense was that they acted under the authority of ARIZ. REV. STAT. § 10-3821, which explicitly allows a board of directors to take action without a meeting if it is done via unanimous written consent of all directors.
3. The two decisions made via unanimous consent related to issues Mr. Burnes had raised about lot 7, which abuts his property. The first action was to honor a waiver of the construction deposit for lot 7, and the second action was regarding the placement of the home on lot 7.
4. The ALJ reasoned that the statutes are not in conflict because they apply to different situations. Respondent may take action without a meeting as allowed by § 10-3821, but if a meeting is held, Respondent must follow all the requirements of the open meeting law, § 33-1804.
5. Mr. Burnes requested a rehearing, alleging that the initial ALJ decision’s findings of fact were not supported by evidence or were contrary to law. The rehearing was granted to review these legal issues, but the outcome was the same: the ALJ once again concluded that no violation had occurred and dismissed Mr. Burnes’s petition.
6. Section 3.5 of the Association’s bylaws, titled “Action Without a Meeting,” explicitly provides the directors with “the right to take any action in the absence of a meeting, which they could take at a meeting by obtaining the written consent of all the directors.” This directly supported the Respondent’s claim that its actions were permissible under its own governing documents as well as state law.
7. Mr. Burnes argued that the ALJ’s jurisdiction is limited to Title 33, Chapter 16, and therefore the ALJ had no jurisdiction to consider section 10-3821 as a defense because it is not found in that title. The ALJ rejected this, stating that jurisdiction was proper because the complaint was about a violation of Title 33, and nothing prohibits a respondent from raising defenses from outside that title.
8. The standard of proof is a “preponderance of the evidence.” The Petitioner, Mr. Burnes, bore the burden of proof to show that the alleged violation occurred.
9. The ALJ found several flaws in this assertion: Mr. Burnes did not cite evidence from the record proving a discussion occurred on May 3rd, he conflated prior meetings with the events of May 3rd, and he provided no legal authority showing that prior discussions are pertinent to whether a meeting occurred on that specific day.
10. Mr. Burnes requested that the Respondent be ordered to rescind the consent actions, comply with the open meeting law, pay his filing fee, and be assessed a civil penalty.
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Essay Questions
1. Analyze the central conflict between ARIZ. REV. STAT. § 33-1804 (“Open meetings”) and ARIZ. REV. STAT. § 10-3821 (“Action without meeting”) as presented in this case. Explain the ALJ’s reasoning for concluding that the statutes do not conflict and can both be given effect.
2. Describe the timeline of events leading up to the May 3, 2020 unanimous written consent. How did the meetings and communications in April 2020 between Mr. Burnes and the Board influence the context of the dispute, even though they were not the subject of the final legal violation claim?
3. Evaluate the six specific legal arguments Mr. Burnes raised in his request for rehearing. For each, summarize his point and the ALJ’s counter-argument or legal conclusion.
4. Discuss the concept of “preponderance of the evidence” as defined in the case documents. Explain why the ALJ concluded that Mr. Burnes failed to meet this standard of proof in both the initial hearing and the rehearing.
5. Examine the relationship between state statutes and an association’s governing documents (like bylaws) in this case. How did the ALJ address Mr. Burnes’s argument that § 33-1804 should apply “notwithstanding any provision in the…bylaws”?
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Glossary of Key Terms
Term / Statute
Definition
Action without meeting
A procedure allowed by ARIZ. REV. STAT. § 10-3821 and the Association’s Bylaws (Section 3.5) where a board of directors may take action if it is evidenced by one or more written consents signed by all directors. The consent has the effect of a meeting vote.
Administrative Law Judge (ALJ)
The official, in this case Thomas Shedden, assigned to adjudicate complaints and ensure compliance with relevant statutes for the Office of Administrative Hearings.
ARIZ. REV. STAT. § 10-3821
The state statute titled “Action without meeting” that permits a board of directors to take action without a meeting if all directors provide written consent, unless the articles of incorporation or bylaws provide otherwise.
ARIZ. REV. STAT. § 33-1803 / § 33-1804
The state’s “Open meetings” law for planned communities. It requires that all meetings of an HOA board be open to all members, who shall be permitted to attend and speak at an appropriate time.
Burden of Proof
The obligation of a party in a trial to produce the evidence that will prove the claims they have made against the other party. In this case, the Petitioner (Mr. Burnes) bore the burden of proof.
Clifford (Norm) Burnes
The Petitioner in the case, a member of the Saguaro Crest Homeowners Association.
Petitioner
The party who files a petition or brings an action; in this case, Clifford (Norm) Burnes.
Preponderance of the evidence
The standard of proof in this case, defined as “The greater weight of the evidence…sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
Respondent
The party against whom a petition is filed; in this case, Saguaro Crest Homeowners Association, Inc.
Saguaro Crest Homeowners Association, Inc.
The Respondent in the case; a planned community governed by a Board of Directors.
Unanimous Written Consent
The method used by the Respondent’s Board of Directors on May 3, 2020, to take action. It involved each board member signing written consent forms, as permitted by ARIZ. REV. STAT. § 10-3821.
Blog Post – 21F-H2121051-REL
Your HOA Board Can Legally Make Decisions in Secret—Here’s How One Homeowner’s Lawsuit Proved It
1.0 Introduction: The Expectation vs. The Reality
For most homeowners living in a planned community, the principle of transparency is paramount. The common expectation is that all significant decisions made by the Homeowners Association (HOA) board of directors will happen in open meetings. These are forums where members can attend, listen to the deliberations, and, at the appropriate time, make their voices heard before the board takes a formal vote. This commitment to openness is often seen as a cornerstone of fair governance.
But what if a board could make a decision without ever holding a meeting at all? This question was at the heart of a legal dispute in Arizona, where a homeowner named Clifford (Norm) Burnes took his HOA, Saguaro Crest, to court. Mr. Burnes alleged that his board violated the state’s open meeting law when it took action on two separate issues without convening a meeting. The case worked its way through an administrative law court, and the final decision sided with the HOA, establishing a critical legal precedent that boards can, under specific circumstances, bypass open meetings entirely.
2.0 Takeaway 1: Boards Can Legally Act “Without a Meeting”
The central facts of the case were not in dispute. On May 3, 2020, the Saguaro Crest HOA board made two formal decisions concerning a neighboring lot, specifically regarding a construction bond waiver and home placement—issues that Mr. Burnes himself had previously raised. Instead of calling a meeting, the board used a procedure known as “unanimous written consent.” The Board President, Ms. Martinez, drafted two consent forms, personally brought them to the homes of the other board members, and had each director sign them.
This action, while sidestepping an open meeting, was found to be perfectly legal. The board was operating under the authority of a specific Arizona state law, ARIZ. REV. STAT. section 10-3821, titled “Action without meeting.” This statute explicitly allows the board of a non-profit corporation to take action without a meeting, provided the action is taken by all directors and is documented by written consent.
Furthermore, this power was not just granted by state law; it was also written directly into the HOA’s own governing documents. Section 3.5 of the Saguaro Crest HOA’s bylaws, titled “Action Without a Meeting,” explicitly grants its directors “the right to take any action in the absence of a meeting, which they could take at a meeting by obtaining the written consent of all the directors.”
3.0 Takeaway 2: A Legal Puzzle—When Two State Laws Seem to Conflict
Mr. Burnes’s case created a compelling legal puzzle by highlighting two state laws that appeared to be in direct opposition. On one side was Arizona’s Planned Community law (ARIZ. REV. STAT. section 33-1804), which strongly mandates open meetings for HOA boards and includes a policy statement that any interpretation of the law should be construed “in favor of open meetings.”
On the other side was the state’s Nonprofit Corporation law (ARIZ. REV. STAT. section 10-3821), which, as noted, expressly permits a board to act without a meeting. Mr. Burnes argued that the open meeting law should take precedence.
The Administrative Law Judge, however, made a crucial distinction. Applying a standard legal principle that courts must try to give effect to both laws if possible, the judge determined the two statutes do not actually conflict. The judge’s reasoning clarifies how both can exist and be applied legally.
In this case, both sections 10-3821 and 33-1804 can be given effect in that Respondent may take action without a meeting as allowed by section 10-3821, but if a meeting is held, Respondent must follow the requirements of section 33-1804.
This interpretation is the core of the decision. The open meeting law, with all its requirements for notice and member participation, only applies if a meeting is held. By using the “action without meeting” statute, the Saguaro Crest board legally sidestepped the requirement to hold a meeting in the first place, thereby rendering the open meeting law inapplicable to their actions on that day.
4.0 Takeaway 3: Legislative Intent Can Be Read in a Law’s Silence
Mr. Burnes also advanced a more sophisticated legal argument: that in any conflict, the specific laws written for HOAs (found in Title 33 of the state code) should overrule the more general laws for non-profit corporations (found in Title 10).
The judge’s response to this provided a fascinating lesson in how courts interpret legislative intent, not just from what a law says, but from what it doesn’t say. The judge noted that the section of law governing general membership meetings does contain a specific clause stating that in the case of an inconsistency, the HOA laws control.
Crucially, the section of law governing board meetings, where the “action without meeting” statute is found, has no such clause. The judge interpreted this difference not as an oversight, but as a deliberate choice by lawmakers. This “silence” in the statute was read as a “legislative intent to allow boards latitude to act by consent.” In other words, if the legislature had intended for the open meeting law to always override the board’s ability to act by written consent, it would have explicitly said so, just as it did for membership meetings.
5.0 Conclusion: Efficiency vs. Transparency
While homeowners understandably value and expect open meetings as a tool for transparency and participation, the law also recognizes the need for boards to operate efficiently. The unanimous written consent procedure provides a legal mechanism for boards to make decisions, particularly on straightforward matters, without the time and expense of convening a formal meeting.
This case is more than a legal curiosity; it’s a practical lesson for every homeowner. The power wielded by the Saguaro Crest board is not unique to Arizona. If you want to understand the true scope of your own board’s authority, take these two steps:
1. Review your HOA’s bylaws. Look for a clause titled “Action Without a Meeting” or similar language that grants the board the right to act via written consent. This is the internal authorization.
2. Check your state’s Nonprofit Corporation Act. Search for a statute similar to Arizona’s § 10-3821. This is the ultimate source of the board’s power, and it likely exists in some form in your state, defining the boundary between efficiency and transparency for your community.
Case Participants
Petitioner Side
Clifford (Norm) Burnes(petitioner) Appeared on his own behalf at the original hearing
Respondent Side
John Crotty(HOA attorney) Law Offices of Farley, Choate & Wood Attorney for Saguaro Crest Homeowners Association, Inc.
Esmerelda Sarina Martinez(board president, witness) Saguaro Crest Homeowners Association, Inc. Testified as a witness for Respondent
Madill(board member) Saguaro Crest Homeowners Association, Inc. Referred to as Mr. Madill
Neutral Parties
Thomas Shedden(ALJ)
Judy Lowe(Commissioner) ADRE Commissioner during original decision transmittal
Louis Dettorre(Commissioner) ADRE Commissioner during rehearing transmittal
Miranda Alvarez(staff) Transmittal staff (also noted as Miranda A.)
c. serrano(staff) Transmittal staff
Other Participants
Jamie Argueta(staff) Conducted research; position and function apparently not in the record
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
21F-H2120028-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2021-07-28
Administrative Law Judge
Velva Moses-Thompson
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Lee & Kim Edwards
Counsel
Terry Foster, Esq.
Respondent
Scottsdale Embassy Condominium Association
Counsel
—
Alleged Violations
A.R.S. § 33-1255
Outcome Summary
The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to prove by a preponderance of the evidence that the Respondent violated its CC&Rs, Bylaws, or A.R.S. § 33-1255, ruling that the statute was inapplicable due to the specific provisions in the Declaration regarding the 1/26 assessment calculation.
Why this result: Petitioner failed to meet the burden of proof, and the ALJ determined A.R.S. § 33-1255 was superseded by the Declaration, which mandated assessments based on the undivided 1/26 interest in the common elements.
Key Issues & Findings
Assessment calculation based on undivided interest in common areas
Petitioner challenged the Association's decision to change assessments from a historical square footage basis to a 1/26 interest calculation, arguing that this method violates A.R.S. § 33-1255 by charging for limited common elements (patios/parking).
Orders: The petition of Lee & Kim Edwards is dismissed; Respondent is deemed the prevailing party.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1255
Declaration Article I, Section 5
Declaration Article II, Section 5
Declaration Article II, Section 7
Declaration Article IV, Section 4
Declaration Article VI, Section 9
Analytics Highlights
Topics: condominium, assessment, cc&r, statutory interpretation, common elements, limited common elements
Assessment Methodology Dispute: Edwards v. Scottsdale Embassy Condominium Association
Executive Summary
This document provides a comprehensive analysis of the legal dispute between homeowners Lee & Kim Edwards (Petitioners) and the Scottsdale Embassy Condominium Association (Respondent) concerning a change in the methodology for calculating homeowner assessments. The core of the conflict was the Association’s decision to shift from a historical practice of assessments based on unit square footage to a uniform rate where each of the 26 units pays an equal 1/26 share of the common expenses.
The dispute was adjudicated by an Administrative Law Judge (ALJ) in two separate hearings. In both instances, the ALJ ruled in favor of the Association, dismissing the petitions filed by the Edwards.
Key Takeaways:
• Change in Methodology: The Association’s Board, acting on legal advice received in January 2020, concluded that its 40-year practice of using a square-footage-based assessment violated the community’s Covenants, Conditions, and Restrictions (CC&Rs). The Board subsequently implemented a 1/26 equal-share assessment method after a majority of homeowners selected this option.
• Initial Ruling on “Uniform Rate”: In the first hearing in February 2021, the Petitioners argued that the historical square footage method was a “uniform rate” and that the Association had waived its right to change the long-standing practice. The ALJ rejected this, finding that the new 1/26 rate complied with the CC&Rs’ requirement for a “uniform rate” (Article VI, Section 9) and aligned with each unit’s specified 1/26 undivided interest in the common elements (Article VI, Section 4(d)).
• Rehearing Ruling on State Statute: The Petitioners were granted a rehearing in July 2021, where they argued that the 1/26 method violated Arizona statute A.R.S. § 33-1255 by improperly charging all owners for “limited common elements” like patios and parking spaces. The ALJ again ruled against the Petitioners, concluding that the state statute did not apply. The ruling was based on a key provision in the statute: “Unless otherwise provided for in the declaration.” The judge found that the Association’s Declaration did provide otherwise by defining patios and parking as general common elements and explicitly mandating that costs be shared based on each unit’s 1/26 interest.
• Final Outcome: The petition was definitively dismissed after the rehearing, making the ALJ’s order binding. The Association’s adoption of the 1/26 assessment rate was upheld as compliant with its governing documents.
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Background of the Dispute
The legal conflict originated from a single-issue petition filed on November 20, 2020, by Lee and Kim Edwards, owners of unit 6937 in the Scottsdale Embassy Condominium development. The petition, filed with the Arizona Department of Real Estate, alleged that the Scottsdale Embassy Condominium Association had violated its CC&Rs, specifically Article VI, Section 9, and Article IV, Section 1.
The central issue was the Association Board’s decision to change the long-standing method of calculating homeowner assessments. For over 40 years, assessments had been based on the square footage of each unit. In 2020, the Board implemented a new system where the Association’s annual budget was divided equally among the 26 units, with each owner paying a 1/26 share. The Petitioners sought to enforce the historical calculation method unless and until the CC&Rs were properly amended.
Chronology of the Assessment Change
• Historical Practice: For more than four decades, the Association calculated and charged member assessments based on the square footage of each condominium unit.
• Legal Consultation (January 2020): Two members of the Association’s Board consulted with an attorney regarding the legality of the historical assessment method.
• Attorney Recommendation (January 24, 2020): The attorney advised the Association that, to ensure compliance with the CC&Rs, it should calculate assessments based on each homeowner’s 1/26 interest in the common areas. The attorney’s letter stated:
• Homeowner Consultation: Following the legal advice, the Board informed homeowners that the prior square-footage method violated the CC&Rs. The Board sought input on three potential assessment methods: the 1/26 rate, a variable blended rate, or continuing with the square footage rate. A majority of homeowners selected the 1/26 rate. The Board noted that any method other than the 1/26 rate would require a formal amendment to the CC&Rs.
• Implementation (September 26, 2020): The Board officially notified homeowners that it would begin charging assessments based on the 1/26 rate and that an amendment to the CC&Rs was not necessary to implement this change.
Initial Hearing and Decision (February 2021)
An evidentiary hearing was held on February 9, 2021, before Administrative Law Judge Velva Moses-Thompson.
Arguments Presented
Petitioners (Edwards)
1. The historical square footage rate qualified as a “uniform rate” and was compliant with the CC&Rs. 2. By using the square footage rate for over 40 years, the Association had waived its right to enforce a different method like the 1/26 rate.
Respondent (Association)
1. The plain language of the CC&Rs requires that each homeowner pay an assessment based on the 1/26 rate. 2. It is not legally possible to waive a mandatory CC&R requirement through past practice.
On February 19, 2021, the ALJ issued a decision dismissing the petition. The judge’s conclusions of law were based on a direct interpretation of the CC&Rs:
• Uniform Rate Compliance: The ALJ determined that the “preponderance of the evidence” showed that the Association’s 1/26 rate was a uniform rate that complied with Article VI, Section 9 of the CC&Rs.
• Burden of Proof: The Petitioners failed to meet their burden to prove that the Association had violated its governing documents.
• Outcome: The Association was deemed the prevailing party, and the petition was dismissed.
Rehearing and Final Decision (July 2021)
The Petitioners filed a request for a rehearing on March 30, 2021, which was granted. The rehearing was held on July 8, 2021. The Respondent did not appear at this hearing, as its counsel had withdrawn from representation without formally notifying the tribunal.
In the rehearing, the Petitioners introduced a new argument, alleging that the 1/26 assessment method violated Arizona state law, specifically A.R.S. § 33-1255.
• The core of this argument was that the 1/26 rate improperly included charges for “limited common elements,” such as patios and assigned parking spaces.
• The Petitioners contended that this forced all homeowners to pay for the maintenance of elements that were assigned to and benefited fewer than all units, in direct violation of the statute.
On July 28, 2021, the ALJ issued a final decision, once again dismissing the petition. The ruling hinged on the precise wording of both the state statute and the Association’s Declaration.
• Applicability of A.R.S. § 33-1255: The judge found that the statute did not apply to this matter. The relevant section of the law, A.R.S. § 33-1255(C), begins with the critical phrase: “Unless otherwise provided for in the declaration…”
• Supremacy of the Declaration: The ALJ concluded that the Association’s Declaration did provide otherwise. The CC&Rs explicitly:
◦ Define “Common Elements” broadly to include patios and parking areas (Article I, Section 3).
◦ Establish that each unit has an “undivided interest in the general common areas” of 1/26 (Article I, Section 5).
◦ Mandate that each unit’s share of costs for repair and maintenance of common areas is the “same as its undivided interest in the common elements” (Article IV, Section 4(d)).
• Final Outcome: Because the Declaration’s specific provisions overrode the general terms of the state statute, the Association was found to be in compliance. The petition was dismissed, and the order was deemed binding on the parties.
Key Legal Principles and Definitions
Concept
Definition / Application in Case
Burden of Proof
The Petitioners were required to establish their claim by a “preponderance of the evidence.”
Preponderance of the Evidence
Defined as “proof as convinces the trier of fact that the contention is more probably true than not.” The ALJ found the Petitioners failed to meet this standard in both hearings.
Restrictive Covenants
Arizona law requires that unambiguous restrictive covenants be enforced to give effect to the parties’ intent and be interpreted as a whole. The ALJ’s decisions were based on a direct interpretation of the CC&Rs’ language.
Common Elements (per CC&Rs)
A broad definition including multifamily structures, land, roofs, ceilings, foundations, storage spaces, patios, parking areas, recreational facilities, lawns, pipes, and conduits.
Unit (per CC&Rs)
A freehold estate consisting of the interior space of an apartment. The definition explicitly states that common elements are not part of the unit.
Undivided Interest (per CC&Rs)
Article I, Section 5 clearly establishes that “The undivided interest in the general common areas… which shall be conveyed with each respective units shall be 1/26.” This provision was central to the final ruling.
Study Guide – 21F-H2120028-REL-RHG
Study Guide: Edwards v. Scottsdale Embassy Condominium Association
This study guide provides a comprehensive review of the administrative case between Lee & Kim Edwards and the Scottsdale Embassy Condominium Association, based on the provided legal decisions. It includes a short-answer quiz, an answer key, suggested essay questions, and a detailed glossary of key terms.
Short-Answer Quiz
Answer the following questions in two to three sentences each, based on the information provided in the case documents.
1. What was the central conflict between the Petitioners (Lee & Kim Edwards) and the Respondent (Scottsdale Embassy Condominium Association)?
2. For over 40 years, how did the Association historically calculate assessments for homeowners?
3. What specific event in January 2020 prompted the Association’s Board to change the assessment method?
4. In the first hearing on February 9, 2021, what were the two main arguments presented by Mr. Edwards?
5. What was the Administrative Law Judge’s conclusion regarding the “uniform rate” requirement from CC&Rs Article VI, Section 9 in the initial decision?
6. Upon what new legal grounds did the Petitioners base their March 30, 2021, request for a re-hearing?
7. According to the CC&Rs, what is the defined undivided interest in the general common areas for each unit?
8. Why did the Administrative Law Judge ultimately conclude that Arizona Revised Statutes (A.R.S.) § 33-1255 did not apply in this case?
9. What legal standard of proof did the Petitioners need to meet to successfully prove their case?
10. What was the final, binding outcome of the re-hearing held on July 8, 2021?
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Answer Key
1. The central conflict concerned the method for calculating homeowner assessments. The Petitioners argued for the historical method based on unit square footage, while the Respondent implemented a new method where each of the 26 units paid an equal share (1/26 rate) of the Association’s costs.
2. For over 40 years, the Association historically calculated assessments based on the square footage of each condominium unit. This practice was changed by the Board in 2020.
3. In January 2020, two Board members met with an attorney who advised that to comply with the CC&Rs, the Association should charge assessments based on each homeowner’s 1/26 interest in the common areas, not on square footage.
4. Mr. Edwards argued that the historical square footage rate was a “uniform rate” that complied with the CC&Rs. He also contended that by using this method for 40 years, the Association had waived its right to enforce a different assessment method like the 1/26 rate.
5. The Judge concluded that the Respondent’s assessment method, based on a uniform rate of 1/26 of the Association’s costs for each unit, did comply with Article VI, Section 9. Therefore, the Petitioners failed to prove the Association had violated the CC&Rs.
6. The Petitioners based their request for a re-hearing on the new allegation that the Respondent had violated Arizona Revised Statutes (A.R.S.) § 33-1255. They argued the 1/26 rate improperly required members to pay for limited common elements, such as patios and parking spaces, not assigned to them.
7. According to Article I, Section 5 of the Declaration (CC&Rs), the undivided interest in the general common areas established and conveyed with each respective unit is 1/26.
8. The Judge concluded that A.R.S. § 33-1255 did not apply because the statute itself contains an exception: “Unless otherwise provided for in the declaration.” In this case, the Association’s Declaration explicitly required that each member be charged an assessment equivalent to their 1/26 interest in the total costs, which included patios and parking areas.
9. The Petitioners bore the burden of proof to establish their claims by a “preponderance of the evidence.” This standard requires proof that convinces the trier of fact that a contention is more probably true than not.
10. Following the re-hearing, the Administrative Law Judge again ordered that the petition of Lee & Kim Edwards be dismissed. The Respondent was deemed the prevailing party, and the order was declared binding on the parties.
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Essay Questions
The following questions are designed for longer, essay-style responses. Answers are not provided.
1. Trace the evolution of the Petitioners’ legal strategy from the initial petition filed on November 20, 2020, to the arguments made during the re-hearing on July 8, 2021. How did their core arguments change, and what new evidence or legal statutes were introduced?
2. Analyze the concept of a “uniform rate” as required by Article VI, Section 9 of the CC&Rs. Discuss how both the Petitioners and the Respondent interpreted this phrase to support their respective assessment methods (square footage vs. 1/26 rate).
3. Explain in detail the role of A.R.S. § 33-1255 in the re-hearing. Why did the Petitioners believe it supported their case, and what specific language in both the statute and the Association’s Declaration led the Administrative Law Judge to rule that it did not apply?
4. Evaluate the actions taken by the Association’s Board of Directors in 2020. Consider their consultation with an attorney, their communication with homeowners, and their final decision to implement the 1/26 rate. Discuss whether these actions were consistent with the powers and obligations outlined in the CC&Rs.
5. Discuss the legal argument of “waiver” raised by Mr. Edwards in the first hearing. Explain what he meant by this and why the Association’s 40-year history of using a square-footage-based assessment was central to this claim. Why did this argument ultimately fail?
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Glossary of Key Terms
Definition
1/26 Rate
The assessment method where the Association’s annual budget is divided 26 ways, with each unit responsible for paying an equal portion. This is based on each unit’s 1/26 undivided interest in the common areas as specified in the CC&Rs.
Administrative Law Judge (ALJ)
The independent judicial officer who presides over administrative hearings, hears evidence, and issues a decision. In this case, the ALJ was Velva Moses-Thompson.
A.R.S. § 32-2199(1)
The Arizona Revised Statute that permits a condominium unit owner to file a petition with the Department of Real Estate for a hearing regarding alleged violations of the Condominium Act.
A.R.S. § 33-1255
The Arizona Revised Statute concerning common expenses. It states that unless the declaration provides otherwise, expenses for a limited common element shall be assessed against the units to which it is assigned, and expenses benefitting fewer than all units shall be assessed exclusively against the units benefitted.
Arizona Department of Real Estate
The state agency authorized by statute to receive and decide Petitions for Hearings from members of condominium associations in Arizona.
Burden of Proof
The obligation on a party in a legal proceeding to establish its claims by a required standard of evidence. In this case, the Petitioners bore the burden of proof.
CC&Rs (Covenants, Conditions, and Restrictions)
The governing legal documents that set up the guidelines for a planned community or condominium. Also referred to as the “Declaration” in the provided documents.
Common Area / Common Elements
As defined in Article I, Section 3 of the CC&Rs, this includes the multifamily structure (except for the units), land, air space, bearing walls, roofs, storage spaces, patios, recreational facilities, lawns, pipes, and other premises designed for common use.
Declaration
Another term for the Covenants, Conditions, and Restrictions (CC&Rs).
Lee & Kim Edwards
The Petitioners in the case and owners of unit 6937 in the Scottsdale Embassy Condominium development.
Office of Administrative Hearings
An independent state agency to which the Department of Real Estate refers petitions for evidentiary hearings.
Petitioners
The party that initiates a legal action or petition. In this case, Lee & Kim Edwards.
Preponderance of the Evidence
The evidentiary standard required to be met by the Petitioners. It is defined as proof that convinces the trier of fact that a contention is “more probably true than not.”
Respondent
The party against whom a petition is filed. In this case, the Scottsdale Embassy Condominium Association.
Restricted Common Area
As defined in Article I, Section 3(b) of the CC&Rs, this refers to a separately designed and exclusive parking area for each unit as assigned by the Board of Directors.
Scottsdale Embassy Condominium Association
The Respondent in the case; the condominium unit owners’ association for the development.
Square Footage Rate
The historical method of calculating assessments for over 40 years, where each unit’s assessment was based on its square footage.
Uniform Rate
A requirement from Article VI, Section 9 of the CC&Rs that states both regular and special assessments must be fixed at a uniform rate for all units. The interpretation of this term was central to the dispute.
As defined in Article I, Section 4 of the CC&Rs, a separately designated freehold estate consisting of the space bounded by the interior surfaces of the perimeter walls, floors, ceilings, windows, and floors of each apartment. It does not include common elements.
Waiver
A legal argument made by the Petitioners that because the Association had charged assessments based on square footage for 40 years, it had relinquished or “waived” its right to enforce a different method.
Blog Post – 21F-H2120028-REL-RHG
4 Shocking Lessons from an HOA Lawsuit That Could Upend How You See Your Fees
Introduction: The 40-Year Mistake
If you live in a condominium or a community governed by a Homeowners Association (HOA), you likely operate under a simple assumption: the way things have always been done is the correct and legal way. Monthly fees, maintenance schedules, and community rules that have been in place for decades feel permanent and unassailable. But what if they aren’t?
This was the central question in the case of Lee & Kim Edwards versus the Scottsdale Embassy Condominium Association. For over 40 years, the Association calculated homeowner fees based on the square footage of each unit—a practice that seemed fair and logical, and one that was never questioned by residents.
Then came the twist. In January 2020, after consulting with an attorney, the HOA board announced a shocking revelation: their 40-year-old assessment method was a direct violation of the community’s own governing documents. The board presented the legal findings to the community and sought their input on how to proceed. After being given the choice between the old method, a blended rate, or a new flat-rate fee that complied with the rules, most homeowners voted for the compliant flat-rate system for every single unit, regardless of its size.
Homeowners sued to keep the old method, sparking a legal battle that went all the way to an administrative court. The resulting decisions offer surprising and crucial lessons for every homeowner paying HOA dues. Here are the four most impactful takeaways from the case that could change how you view your own community’s rules.
1. “Past Practice” Means Nothing if It Violates the Rules
The primary argument made by the petitioners, Mr. and Mrs. Edwards, was that the Association had “waived its right” to change the assessment method. After all, by using the square-footage calculation for four decades, hadn’t they established an unbreakable precedent? It seemed like a common-sense argument rooted in history and consistency.
The court, however, completely rejected this line of reasoning. The Administrative Law Judge’s decision was not based on historical practice but on the clear, written rules found in the community’s Covenants, Conditions, and Restrictions (CC&Rs). The Association argued that it’s “not possible to waive the CC&R requirement,” and the court agreed.
The Lesson: This case powerfully demonstrates that tradition or “how things have always been done” cannot override the explicit language of an HOA’s governing documents. The CC&Rs are a contract. The lesson is clear: if your HOA’s practice contradicts its documents, the practice is invalid. The board has a fiduciary duty to follow the written rules, not a 40-year-old mistake.
2. Your CC&Rs Are a Binding Contract—Read Them
Throughout the legal proceedings, the Administrative Law Judge consistently referred back to the specific text of the CC&Rs to make a final decision. The entire case ultimately hinged on the interpretation of a few key sentences written decades ago.
The most critical passage, which decided the outcome, was from Article VI, Section 4(d) of the community’s governing documents:
“Each unit’s share shall be the same as its undivided interest in the common elements of the total amount determined under the subparagraphs (a), (b), (c), and (d) above.” —Scottsdale Embassy Condominium Association CC&Rs, Article VI, Section 4(d)
This single sentence was the linchpin. It explicitly linked each unit’s assessment share to its “undivided interest in the common elements.” Another section of the document, Article I, Section 5, had already established that interest as an equal 1/26 for all 26 units.
The Lesson: This is a classic example of legal cross-referencing in a contract. Section 4(d) provided the instruction (base fees on “undivided interest”), while Article I, Section 5 provided the specific value (1/26). With both parts present and unambiguous, the court had no choice but to enforce them exactly as written, leaving no room for interpretations based on fairness or history. The contract was the contract.
3. A “Uniform Rate” Might Not Mean What You Think
One of the central points of contention was the term “uniform rate.” Article VI, Section 9 of the CC&Rs required that all assessments “must be fixed at a uniform rate for all units.”
The homeowners argued that the square footage rate was, in fact, a “uniform rate”—a consistent price per square foot applied to every unit. It’s an interpretation many of us might find reasonable.
However, the HOA Board and the court had a different interpretation. The judge found that the flat 1/26 rate was the correct interpretation of a “uniform rate” because it was uniformly applied to every unit’s established 1/26 interest in the common areas. In the court’s view, the “rate” being applied uniformly was the 1/26 fraction of the total budget. The fact that this resulted in different dollar amounts for square-footage fees was irrelevant; the legal share was what had to be uniform.
The Lesson: Common-sense terms like “uniform” can have very specific legal meanings within the context of your governing documents. The true definition is found not in a dictionary, but in how the term is defined and applied by the rest of the document’s provisions.
4. Your HOA’s Rules Can Sometimes Override State Law
In a final attempt to overturn the decision, the petitioners filed for a re-hearing. This time, they cited a specific Arizona state law, A.R.S. 33-1255. This statute says that expenses for “limited common elements”—things like assigned patios or parking spaces that only benefit specific units—should be assessed only against those units that benefit from them. The homeowners argued that the new 1/26 flat fee unfairly forced them to pay for their neighbors’ patios and parking spots, a direct violation of state law.
Surprisingly, this argument also failed. The reason is found in the crucial introductory clause of the state law itself: “Unless otherwise provided for in the declaration…”
Because the Scottsdale Embassy’s Declaration did provide otherwise—by explicitly rolling all general and restricted common area costs into the total budget before calculating each unit’s 1/26 share—the community’s own rules legally superseded the default state statute. The judge concluded that the state law “does not apply to this matter because the Declaration requires” a different method.
The Lesson: This is perhaps the most counter-intuitive lesson of all. This demonstrates a key principle of contract law and planned community governance: state statutes often provide a “default” rule for situations a community’s documents don’t address. However, they also grant communities the power to create their own specific rules, which, if legally permissible, will take precedence. Homeowners cannot assume that a state law automatically protects them if their community’s own governing documents have a more specific rule in place.
Conclusion: Are You Sure You Know What You Agreed To?
The central message from the Scottsdale Embassy case is undeniable: in an HOA, the written word is law. The CC&Rs and other governing documents are a binding contract that dictates the rules, regardless of 40 years of history, common-sense assumptions, or even some default state laws. What you believe is fair or standard practice is irrelevant if the document you agreed to upon purchase says otherwise.
This case was decided by a few sentences written decades ago. When was the last time you read your community’s governing documents from cover to cover?
Case Participants
Petitioner Side
Lee Edwards(petitioner, witness)
Kim Edwards(petitioner)
Teresa H. Foster(petitioner attorney) Ellis & Baker, P.C. Also referred to as Terri Foster and Terry Foster
Respondent Side
Lauren Vie(respondent attorney) Appeared for initial hearing; withdrew prior to rehearing
Caleb Koch(board member, witness) Scottsdale Embassy Condominium Association Board President
Mary Edinburgh(board member, witness) Scottsdale Embassy Condominium Association
Beth Mulcahy(respondent attorney) Mulcahy Law Firm, PC Withdrew prior to rehearing
Neutral Parties
Velva Moses-Thompson(ALJ)
Judy Lowe(Commissioner) Arizona Department of Real Estate
Other Participants
Miranda Alvarez(unknown) Listed in transmission records for Petitioner's counsel
