Case Summary
| Case ID | 23F-H057-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2023-08-01 |
| Administrative Law Judge | Brian Del Vecchio |
| Outcome | loss |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Wanda Swartling | Counsel | — |
|---|---|---|---|
| Respondent | Val Vista Park Townhome Association of Mesa | Counsel | Chad Gallacher |
Alleged Violations
ARIZ. REV. STAT. § 33-1804
Outcome Summary
The Administrative Law Judge dismissed the Petitioner’s petition because the Petitioner failed to meet her burden of proving that the HOA violated ARS § 33-1804 by failing to hold a properly noticed open board meeting prior to the March 2, 2023, special assessment vote. Evidence suggested issues were discussed in prior committee and board meetings, and Petitioner did not prove informal discussions constituted a violation requiring a finding against the Respondent.
Why this result: Petitioner failed to meet her burden of proof by a preponderance of the evidence that the Respondent's conduct violated ARS § 33-1804.
Key Issues & Findings
Failure to hold open board meeting prior to special assessment meeting
Petitioner alleged the HOA violated open meeting law (ARS § 33-1804) by failing to hold an open board meeting prior to the March 2, 2023, special meeting where members voted on a special assessment, arguing that preliminary discussions and decisions were made unilaterally in supposed closed-door meetings or through email/informal discussions.
Orders: Petitioner's petition is dismissed. Petitioner's request to levy a civil penalty against Respondent is denied.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
- ARIZ. REV. STAT. § 33-1804
Analytics Highlights
- ARIZ. REV. STAT. § 33-1804
- 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.
- Tierra Ranchos Homeowners Ass'n v. Kitchukov
- MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
- BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
23F-H057-REL Decision – 1071114.pdf
23F-H057-REL Decision – 1071115.pdf
23F-H057-REL Decision – 1071120.pdf
23F-H057-REL Decision – 1071121.pdf
23F-H057-REL Decision – 1071122.pdf
23F-H057-REL Decision – 1071126.pdf
23F-H057-REL Decision – 1071127.pdf
23F-H057-REL Decision – 1071503.pdf
23F-H057-REL Decision – 1079574.pdf
Questions
Question
What is the burden of proof for a homeowner alleging a violation against their HOA?
Short Answer
The homeowner (Petitioner) must prove the violation by a "preponderance of the evidence."
Detailed Answer
In an administrative hearing, the burden is on the homeowner to prove their case. The standard used is 'preponderance of the evidence,' meaning the homeowner must show that their claim is more likely true than not.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804.
Legal Basis
ARIZ. REV. STAT. § 33-1804
Topic Tags
- legal standards
- burden of proof
- procedure
Question
Do informal discussions or emails between board members automatically violate open meeting laws?
Short Answer
Not necessarily. To constitute a violation, there must be proof that a quorum was present and that board business was actually conducted.
Detailed Answer
While informal discussions or emails might technically constitute a meeting, the homeowner must provide sufficient evidence that a quorum of board members was involved and that they were conducting actual board business to prove a violation of the open meeting statute.
Alj Quote
The informal discussions and emails between board members may have constituted board meetings under ARIZ. REV. STAT. § 33-1804, however, Petitioner failed to provide sufficient evidence the number of board members meeting constituted a quorum which would thereby require notice to homeowners.
Legal Basis
ARIZ. REV. STAT. § 33-1804
Topic Tags
- open meetings
- emails
- board communication
Question
What evidence is required to prove the board held a 'secret' meeting?
Short Answer
The homeowner must provide sufficient evidence that a quorum met and that specific board business was conducted.
Detailed Answer
Allegations of closed-door meetings fail if the homeowner cannot prove that enough board members were present to form a quorum and that they engaged in board business during that time.
Alj Quote
Petitioner failed to provide sufficient evidence the number of board members meeting constituted a quorum which would thereby require notice to homeowners. Furthermore, Petitioner failed to provide sufficient evidence board business was conducted during these putative board meetings.
Legal Basis
ARIZ. REV. STAT. § 33-1804
Topic Tags
- evidence
- secret meetings
- quorum
Question
Can a special assessment vote be based on recommendations from a committee meeting held months earlier?
Short Answer
Yes, if the committee meeting was valid, its recommendations can serve as the basis for a later vote.
Detailed Answer
In this decision, the ALJ found that a special assessment vote in March 2023 was validly based on maintenance recommendations generated during an architectural committee meeting held the previous August.
Alj Quote
The special assessment which was voted on during the March 2, 2023, special meeting were maintenance recommendations from the architectural committee meeting on August 18, 2022.
Legal Basis
ARIZ. REV. STAT. § 33-1804
Topic Tags
- special assessments
- committees
- voting
Question
What does 'preponderance of the evidence' mean in an HOA hearing?
Short Answer
It means the evidence shows the claim is more probably true than not.
Detailed Answer
This legal standard requires evidence that has the most convincing force and is sufficient to incline a fair and impartial mind to one side of the issue, even if it doesn't remove all reasonable doubt.
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
Morris K. Udall, Arizona Law of Evidence § 5 (1960)
Topic Tags
- legal definitions
- evidence
Question
Which HOA meetings are required by law to be open to all members?
Short Answer
Meetings of the members, the board of directors, and any regularly scheduled committee meetings must be open.
Detailed Answer
Arizona statute explicitly requires that meetings of the members' association, the board of directors, and regularly scheduled committee meetings be open to all association members, notwithstanding contrary bylaws.
Alj Quote
Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association.
Legal Basis
ARIZ. REV. STAT. § 33-1804(A)
Topic Tags
- open meetings
- homeowner rights
- statutes
Case
- Docket No
- 23F-H057-REL
- Case Title
- Wanda Swartling v Val Vista Park Townhome Association of Mesa
- Decision Date
- 2023-08-01
- Alj Name
- Brian Del Vecchio
- Tribunal
- OAH
- Agency
- ADRE
Questions
Question
What is the burden of proof for a homeowner alleging a violation against their HOA?
Short Answer
The homeowner (Petitioner) must prove the violation by a "preponderance of the evidence."
Detailed Answer
In an administrative hearing, the burden is on the homeowner to prove their case. The standard used is 'preponderance of the evidence,' meaning the homeowner must show that their claim is more likely true than not.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804.
Legal Basis
ARIZ. REV. STAT. § 33-1804
Topic Tags
- legal standards
- burden of proof
- procedure
Question
Do informal discussions or emails between board members automatically violate open meeting laws?
Short Answer
Not necessarily. To constitute a violation, there must be proof that a quorum was present and that board business was actually conducted.
Detailed Answer
While informal discussions or emails might technically constitute a meeting, the homeowner must provide sufficient evidence that a quorum of board members was involved and that they were conducting actual board business to prove a violation of the open meeting statute.
Alj Quote
The informal discussions and emails between board members may have constituted board meetings under ARIZ. REV. STAT. § 33-1804, however, Petitioner failed to provide sufficient evidence the number of board members meeting constituted a quorum which would thereby require notice to homeowners.
Legal Basis
ARIZ. REV. STAT. § 33-1804
Topic Tags
- open meetings
- emails
- board communication
Question
What evidence is required to prove the board held a 'secret' meeting?
Short Answer
The homeowner must provide sufficient evidence that a quorum met and that specific board business was conducted.
Detailed Answer
Allegations of closed-door meetings fail if the homeowner cannot prove that enough board members were present to form a quorum and that they engaged in board business during that time.
Alj Quote
Petitioner failed to provide sufficient evidence the number of board members meeting constituted a quorum which would thereby require notice to homeowners. Furthermore, Petitioner failed to provide sufficient evidence board business was conducted during these putative board meetings.
Legal Basis
ARIZ. REV. STAT. § 33-1804
Topic Tags
- evidence
- secret meetings
- quorum
Question
Can a special assessment vote be based on recommendations from a committee meeting held months earlier?
Short Answer
Yes, if the committee meeting was valid, its recommendations can serve as the basis for a later vote.
Detailed Answer
In this decision, the ALJ found that a special assessment vote in March 2023 was validly based on maintenance recommendations generated during an architectural committee meeting held the previous August.
Alj Quote
The special assessment which was voted on during the March 2, 2023, special meeting were maintenance recommendations from the architectural committee meeting on August 18, 2022.
Legal Basis
ARIZ. REV. STAT. § 33-1804
Topic Tags
- special assessments
- committees
- voting
Question
What does 'preponderance of the evidence' mean in an HOA hearing?
Short Answer
It means the evidence shows the claim is more probably true than not.
Detailed Answer
This legal standard requires evidence that has the most convincing force and is sufficient to incline a fair and impartial mind to one side of the issue, even if it doesn't remove all reasonable doubt.
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
Morris K. Udall, Arizona Law of Evidence § 5 (1960)
Topic Tags
- legal definitions
- evidence
Question
Which HOA meetings are required by law to be open to all members?
Short Answer
Meetings of the members, the board of directors, and any regularly scheduled committee meetings must be open.
Detailed Answer
Arizona statute explicitly requires that meetings of the members' association, the board of directors, and regularly scheduled committee meetings be open to all association members, notwithstanding contrary bylaws.
Alj Quote
Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association.
Legal Basis
ARIZ. REV. STAT. § 33-1804(A)
Topic Tags
- open meetings
- homeowner rights
- statutes
Case
- Docket No
- 23F-H057-REL
- Case Title
- Wanda Swartling v Val Vista Park Townhome Association of Mesa
- Decision Date
- 2023-08-01
- Alj Name
- Brian Del Vecchio
- Tribunal
- OAH
- Agency
- ADRE
Case Participants
Petitioner Side
- Wanda Swartling (petitioner)
Val Vista Park Townhome Association
Homeowner, VVP Unit 82
Respondent Side
- Chad Gallacher (HOA attorney)
Maxwell & Morgan, P.C. - Steve Cheff (property manager / witness)
Heywood Community Management
Also community manager - Patti Locks (board member)
Val Vista Park HOA
Also listed as candidate/incumbent - Stephanie Hamrock (board member / witness)
Val Vista Park HOA - Troy Goudeau (board member)
Val Vista Park HOA
Elected director - Paul Wilcox (board member)
Val Vista Park HOA
Elected director - Bettie Smiley (board member)
Val Vista Park HOA - Carlee Collins (administrative assistant)
Heywood Community Management - Alli (attorney)
Maxwell & Morgan, P.C.
Associate attorney
Neutral Parties
- Brian Del Vecchio (ALJ)
OAH - Susan Nicolson (ADRE Commissioner)
ADRE - A. Hansen (ADRE staff)
ADRE - V. Nunez (ADRE staff)
ADRE - D. Jones (ADRE staff)
ADRE - L. Abril (ADRE staff)
ADRE
Other Participants
- Shelley Dusek (candidate)
Val Vista Park HOA
Candidate for Board of Directors - Lori Solomon (candidate)
Val Vista Park HOA
Candidate for Board of Directors - Tanya (committee attendee)
Val Vista Park HOA
Attended Building Architectural Committee meeting - David Clem Sr (homeowner)
Val Vista Park Townhomes
Email recipient
