The Petitioner's request for a hearing was denied and the petition was dismissed because the Petitioner failed to prove the Homeowners Association violated A.R.S. § 33-1804(B) or its Bylaw 1.5 by refusing to place a proposed bylaw amendment on the meeting agenda or ballot.
Why this result: The relevant statute and HOA bylaws do not mandate that the Board add a member-proposed amendment to the agenda; the member has the independent recourse of gathering member support (25% or 1/4 of votes) to call a special meeting, a route the Petitioner was aware of but did not pursue.
Key Issues & Findings
Failure to place a proposed bylaw amendment on the agenda of the annual meeting
Petitioner alleged Respondent HOA violated A.R.S. § 33-1804(B) and Bylaw 1.5 by refusing to place his proposed bylaw amendment (Bylaw 3.13, concerning banning directors whose actions resulted in a paid claim) on the agenda or ballot for the annual meeting.
Orders: Petition denied because Petitioner did not establish that Respondent violated the cited statute or bylaw by declining to add the proposed amendment to the agenda or ballot.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1804(B)
Bylaw 1.5
Bylaw 2.2
Analytics Highlights
Topics: HOA, Bylaw Amendment, Meeting Agenda, Director liability, Statute interpretation
Additional Citations:
A.R.S. § 33-1804(B)
A.R.S. § 32-2199(B)
A.R.S. § 41-1092.07(G)(2)
A.R.S. § 41-1092.09
Respondent’s Bylaw 1.5
Respondent’s Bylaw 2.2
Video Overview
Audio Overview
Decision Documents
19F-H1919065-REL Decision – 742075.pdf
Uploaded 2026-01-23T17:29:36 (159.4 KB)
Briefing Doc – 19F-H1919065-REL
Briefing Document: West v. Desert Sage Two Homeowners Association (Case No. 19F-H1919065-REL)
Executive Summary
This document provides a comprehensive analysis of the Administrative Law Judge (ALJ) Decision in the matter of Jason West (Petitioner) versus the Desert Sage Two Homeowners Association (Respondent), Case No. 19F-H1919065-REL. The petition, filed on May 20, 2019, was ultimately denied in a decision issued on October 1, 2019.
The central issue was the Petitioner’s allegation that the Respondent’s Board of Directors violated Arizona statute A.R.S. § 33-1804(B) and its own Bylaw 1.5 by refusing to add his proposed bylaw amendment to the agenda for the annual members’ meeting. The proposed amendment sought to ban directors from serving for five years if their actions resulted in a paid claim against the Association.
The ALJ’s ruling was decisive: the Petitioner failed to meet the burden of proof. The decision rested on a strict interpretation of the relevant statute and bylaws. The ALJ concluded that neither A.R.S. § 33-1804(B) nor the Association’s bylaws compel the Board to place a member-initiated proposal on the agenda of a Board-scheduled meeting. Critically, the bylaws provide a distinct and available remedy for members: Bylaw 2.2 allows members to force a special meeting for any purpose, including bylaw amendments, by gathering the support of 25% of the voting membership. The record showed the Petitioner was aware of this option but did not attempt to use it. Consequently, the petition was dismissed. The Respondent’s request for attorney’s fees was also denied, as the presiding body (the Office of Administrative Hearings) lacks the statutory authority to award them in such proceedings.
1. Case Overview
Case Name
Jason West v. Desert Sage Two Homeowners Association
Case Number
19F-H1919065-REL
Jurisdiction
Office of Administrative Hearings (OAH), Arizona
Presiding Judge
Administrative Law Judge Diane Mihalsky
Hearing Date
September 26, 2019
Decision Date
October 1, 2019
Petitioner
Jason West, appearing on his own behalf
Respondent
Desert Sage Two Homeowners Association, represented by Bradley R. Jardine, Esq.
Core Allegation: The Petitioner alleged that the Respondent’s Board violated state law and its governing documents by refusing to include his proposed bylaw amendment on the agenda and ballot for the annual meeting held in June 2019.
2. The Proposed Bylaw Amendment (Bylaw 3.13)
The Petitioner submitted a proposal to add a new Bylaw 3.13 to the Association’s governing documents. The full text of the proposed amendment is as follows:
Directors whose actions result in a paid claim
In an effort to reduce liability to the Association, any current or former director whose actions have resulted in a paid claim by the Association or its insurance carrier, is banned from serving as a director for a period of five years from the date of the final payment. This five year directorship ban also applies to any other individual co-owning an Association lot with the director. This Amendment is retroactive.
The stated purpose of the amendment was to reduce the Association’s liability. The decision notes that some of the current Board members may have been serving when the Association’s insurance carrier paid legal fees and other costs associated with a previous petition filed by the Petitioner.
3. Chronology of the Dispute
• December 23, 2018: The Petitioner first sent his proposed Bylaw 3.13 amendment to Joanelize Morales, the Association’s property manager.
• January 3 & 4, 2019: The Petitioner emailed Mickey Latz, owner of the management company, demanding the proposal be added to the next meeting’s agenda and ballot. In this correspondence, the Petitioner explicitly stated his awareness of the alternative process, writing, “I can also force the Board to call a Special Meeting of the Members at any time with 10 signatures from members of our Association. This is Article 2.2 of our Bylaws.”
• January – June 2019: Mr. Latz repeatedly informed the Petitioner that the Board, based on legal advice, had decided not to add the proposal to the agenda of a Board-scheduled meeting.
• April 17, 2019: Notice was sent to members for the annual meeting scheduled for June 4, 2019. The agenda was limited to (1) Election of Directors and (2) Approval of 2018 Annual Meeting Minutes. On the same day, the Petitioner re-sent his proposed amendment.
• May 14, 2019: The Petitioner attended a Board meeting and threatened to file a petition with the Department of Real Estate if his amendment was not placed on the agenda.
• May 20, 2019: The Petitioner filed the formal petition that led to this hearing.
• June 3, 2019: A notice was sent rescheduling the meeting to June 20, 2019, with the agenda unchanged.
• June 20, 2019: At the annual meeting, the Petitioner, whose name was on the ballot, was not elected to the Board of Directors.
4. Governing Authorities and Bylaws
The ALJ’s decision centered on the interpretation of one state statute and two specific Association bylaws.
• A.R.S. § 33-1804(B): This Arizona statute governs homeowners’ association meetings. It requires annual meetings and specifies notice requirements. It explicitly provides a mechanism for members to call special meetings: “Special meetings of the members’ association may be called by the president, by a majority of the board of directors or by members having at least twenty-five percent, or any lower percentage specified in the bylaws, of the votes in the association.”
• Bylaw 1.5 (Amendment Process): This bylaw states that amendments can be made “at a regular or special meeting of the Members, by a vote of the Members having a majority (more than 50%) of the votes.” The ALJ found that this bylaw is permissive, allowing for votes on amendments, but does not obligate the Board to place any specific proposal on an agenda.
• Bylaw 2.2 (Special Meetings): This bylaw mirrors the state statute, allowing members to compel a meeting. It states: “Special meetings of the Members may be called at any time … upon written request signed by Members having at least one-fourth (1/4) of the authorized votes… which request shall be delivered to the President or Secretary.”
5. Summary of Key Testimony
The hearing included testimony from the Petitioner and six witnesses he subpoenaed, including property managers and the three current Board members.
• Board Members (Bryan Selna, David Epstein, Linda Seidler): All testified that they consulted with the Association’s attorneys and property management company. Based on the advice received, they collectively decided not to add the Petitioner’s proposal to the agenda.
• Mickey Latz (Property Management Co. Owner): Testified that the Board as a whole, not the secretary, determines the meeting agenda. He affirmed that counsel had advised the Board it was not obligated to add member-requested items. Mr. Latz testified that he explicitly pointed the Petitioner to the process outlined in Bylaw 2.2, which allows members to call their own meetings directly.
• Joanelize Morales (Property Manager): Confirmed that she prepares meeting agendas based on the Board’s instructions. She also testified that the Petitioner never attempted to use the Bylaw 2.2 process to gather the support of his neighbors to schedule a meeting to consider his proposed amendment.
6. Historical Context and Prior Litigation
The decision provides context regarding the Petitioner’s previous interactions with the Association.
• Prior Petition (OAH Case No. 17F-H1716031-REL): In April 2017, the Petitioner filed a petition concerning the Board’s failure to fill vacant positions. On June 28, 2017, an ALJ dismissed that petition, concluding that the Board had done all it could and that vacancies were due in part to the Petitioner’s “obstructionist tactics.”
• Successful Amendment (Bylaw 3.12): In April 2017, the Petitioner proposed a different amendment regarding director resignations. The Board at that time agreed to submit it to a vote, and it was passed by the membership in May 2017.
7. Administrative Law Judge’s Decision and Rationale
The ALJ’s conclusions of law methodically dismantled the Petitioner’s claims, leading to the dismissal of the petition.
• Burden of Proof: The decision established that the Petitioner bore the burden of proving, by a preponderance of the evidence, that the Respondent had violated the statute and bylaw.
• Statutory and Bylaw Interpretation: The ALJ applied a plain-language reading to the governing authorities.
◦ The court found that nothing in the language of A.R.S. § 33-1804(B)requires an HOA board to add an item to an agenda at a member’s request. Instead, it provides the remedy for members to call a meeting themselves.
◦ Similarly, the court concluded that Bylaw 1.5 allows for bylaw amendments to be considered at meetings but does not compel the Board to include such proposals on the agenda of a meeting it has noticed.
◦ The ALJ found that Bylaw 2.2 provides the explicit and proper procedure for a member to bring an issue to a vote when the Board declines to do so: gather support from 25% of the members to call a special meeting.
• Final Ruling: Because the Petitioner failed to establish a violation of any cited statute or bylaw, the petition was ordered to be denied.
• Attorney’s Fees: The Respondent’s request for attorney’s fees was denied. The decision cited legal precedent establishing that administrative bodies like the Department of Real Estate and the OAH are not empowered by the legislature to award attorney’s fees in these types of disputes.
Study Guide – 19F-H1919065-REL
Study Guide: West v. Desert Sage Two Homeowners Association
Short-Answer Quiz
Answer the following questions in 2-3 complete sentences, based on the provided administrative law judge decision.
1. Who are the Petitioner and the Respondent in this case, and what is their relationship?
2. What specific action did the Petitioner, Jason West, allege the Respondent took that violated Arizona statute and the association’s bylaws?
3. Describe the substance of the proposed Bylaw 3.13 that the Petitioner wanted to add to the agenda.
4. What was the Respondent’s primary defense for not adding the proposed bylaw amendment to the annual meeting’s agenda or ballot?
5. According to Bylaw 2.2, what procedural option did the Petitioner have to bring his proposed amendment to a vote without the Board’s approval?
6. What was the outcome of the Petitioner’s previous case against the Respondent in 2017 (OAH Case No. 17F-H1716031-REL)?
7. What two specific authorities did the Petitioner claim the Respondent’s Board violated?
8. According to the Administrative Law Judge’s interpretation, does A.R.S. § 33-1804(B) require an HOA board to add an item to an agenda at a single member’s request?
9. What was the final order of the Administrative Law Judge in this case (No. 19F-H1919065-REL)?
10. What was the judge’s ruling regarding the Respondent’s request for attorney’s fees, and what was the reason for this ruling?
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Answer Key
1. The Petitioner is Jason West, who owns a house in the Desert Sage Two development. The Respondent is the Desert Sage Two Homeowners Association, of which the Petitioner is a member.
2. The Petitioner alleged that the Respondent violated A.R.S. § 33-1804(B) and its own Bylaw 1.5. The specific violation was the Board’s failure to place a bylaw amendment proposed by the Petitioner on the agenda of the association’s annual meeting.
3. The proposed Bylaw 3.13 sought to ban any current or former director from serving on the board for five years if their actions resulted in a paid claim by the association or its insurance carrier. This ban would be retroactive and also apply to any individual co-owning a lot with the director.
4. The Respondent’s Board, after consulting with its attorneys and property management company, argued that neither state law nor its bylaws obliged them to add items to an agenda at a single member’s request. They contended that the Petitioner had the option to call a special meeting himself by gathering support from other members.
5. Bylaw 2.2 allows for a special meeting of the members to be called upon a written request signed by members who hold at least one-fourth (25%) of the authorized votes. The Petitioner was aware of this option but had not attempted to use it.
6. In the previous case, the Administrative Law Judge dismissed the Petitioner’s petition. The judge concluded that the Board had done all it could to fill vacant positions and that the Petitioner’s own “obstructionist tactics” were part of the reason no eligible members were willing to serve.
7. The Petitioner claimed the Respondent’s Board violated Arizona Revised Statute § 33-1804(B) and the association’s Bylaw 1.5.
8. No, the judge concluded that nothing in the language of A.R.S. § 33-1804(B) requires a homeowners’ association board to add an item to an agenda or ballot at the request of a single member. The statute only provides that members with at least 25% of the votes can independently call a meeting.
9. The Administrative Law Judge ordered that the Petitioner’s petition be denied. The judge found that the Petitioner had not established that the Respondent’s Board violated either A.R.S. § 33-1804(B) or Bylaw 1.5.
10. The judge ruled that attorney’s fees could not be awarded to the Respondent. The reason given is that the legislature has not empowered the Department of Real Estate or the Office of Administrative Hearings to award attorney’s fees in this type of administrative proceeding.
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Essay Questions
Construct a detailed essay response for each of the following prompts, using only evidence and reasoning found within the case document.
1. Analyze the Administrative Law Judge’s method of statutory construction and interpretation of restrictive covenants. How did the judge apply these principles to A.R.S. § 33-1804(B) and Bylaw 1.5 to reach a conclusion?
2. Discuss the balance of power between an individual HOA member and the Board of Directors as illustrated in this case. What rights and recourses are available to a member who disagrees with a Board decision, according to the Respondent’s Bylaws?
3. Explain the concept of “burden of proof” as it applies to this case. Who held the burden of proof, what was the standard required, and why was the Petitioner unable to meet this standard?
4. Examine the history between the Petitioner and the Respondent as detailed in the “Findings of Fact.” How might this prior history, including the 2017 legal case and a previously successful bylaw amendment, have influenced the actions of both parties in the current dispute?
5. Based on the testimony of Michael David (“Mickey”) Latz and the text of the bylaws, contrast the process for placing an item on the agenda of a Board-scheduled meeting versus the process for calling a member-initiated special meeting. What are the key differences in initiative, requirements, and control?
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Glossary of Key Terms
Definition from Source Context
Administrative Law Judge (ALJ)
An independent official (Diane Mihalsky) from the Office of Administrative Hearings who presides over evidentiary hearings and issues decisions on petitions filed with the Arizona Department of Real Estate.
A.R.S. § 33-1804(B)
An Arizona statute cited by the Petitioner. It stipulates that an HOA members’ meeting must be held at least annually and that special meetings can be called by the president, a board majority, or members with at least 25% of the votes.
Bylaw 1.5
A bylaw of the Desert Sage Two HOA that states the Bylaws may be amended at a regular or special meeting by a majority vote of members present in person or by proxy.
Bylaw 2.2
A bylaw of the Desert Sage Two HOA that allows for special meetings of the members to be called by the president, the Board, or upon written request from members holding at least one-fourth (25%) of the votes.
Department
The Arizona Department of Real Estate, the state body authorized to receive and decide petitions for hearings from members of homeowners’ associations.
Homeowners’ Association
An organization whose members own property and/or residences in a specific development (in this case, Desert Sage Two in Scottsdale, Arizona).
Office of Administrative Hearings (OAH)
An independent state agency to which the Department refers petitions for an evidentiary hearing.
Petitioner
Jason West, the member of the homeowners’ association who filed the petition alleging a violation by the association’s Board.
Petition
A formal complaint filed with the Department of Real Estate by an HOA member or the HOA itself concerning alleged violations.
Preponderance of the evidence
The burden of proof standard required in the hearing. It is defined as “proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with “the most convincing force.”
Respondent
The Desert Sage Two Homeowners Association, the entity against which the petition was filed.
Restrictive Covenant
A rule or provision within community documents, like bylaws, that is enforced to give effect to the intent of the parties if it is unambiguous.
Blog Post – 19F-H1919065-REL
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19F-H1919065-REL
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This text is an Administrative Law Judge Decision from the Arizona Office of Administrative Hearings (OAH) concerning a dispute between a homeowner, Jason West (Petitioner), and his association, the Desert Sage Two Homeowners Association (Respondent). The Petitioner alleged that the Respondent violated Arizona statute (A.R.S. § 33-1804(B)) and an association bylaw by refusing to place his proposed bylaw amendment on the agenda of the annual meeting. The proposed amendment sought to ban directors whose actions resulted in a paid insurance claim from serving for five years, but the Administrative Law Judge (ALJ) found that neither the statute nor the association’s bylaws required the Board to add a member-proposed item to a scheduled agenda or ballot. Therefore, the ALJ concluded that the Petitioner failed to prove a violation and denied the petition.
What was the specific legal and procedural context of this homeowners association dispute?
How did the Petitioner’s proposed bylaw amendment attempt to alter Board member liability?
What statutory and bylaw provisions guided the final Administrative Law Judge decision?
Edward A. Padilla(property manager) Desert Sage Two Homeowners Association Property manager in May 2017; testified for Petitioner; also referred to as 'Eddie'
Joanelize Morales(property manager) Desert Sage Two Homeowners Association Property manager since August 2018; testified for Petitioner
Bryan Robert Selna(board member) Desert Sage Two Homeowners Association Current Vice President of Respondent's Board; testified for Petitioner
David Epstein(board member) Desert Sage Two Homeowners Association Current President of Respondent's Board; testified for Petitioner
Linda Maria Seidler(board member) Desert Sage Two Homeowners Association Current Secretary of Respondent's Board; testified for Petitioner
Michael David Latz(property manager) Golden Valley Property Management Owner of Golden Valley Property Management; testified for Petitioner; also referred to as 'Mickey'
Neutral Parties
Diane Mihalsky(ALJ) Office of Administrative Hearings
Judy Lowe(ADRE Commissioner) Arizona Department of Real Estate
The Petitioner's request for a hearing was denied and the petition was dismissed because the Petitioner failed to prove the Homeowners Association violated A.R.S. § 33-1804(B) or its Bylaw 1.5 by refusing to place a proposed bylaw amendment on the meeting agenda or ballot.
Why this result: The relevant statute and HOA bylaws do not mandate that the Board add a member-proposed amendment to the agenda; the member has the independent recourse of gathering member support (25% or 1/4 of votes) to call a special meeting, a route the Petitioner was aware of but did not pursue.
Key Issues & Findings
Failure to place a proposed bylaw amendment on the agenda of the annual meeting
Petitioner alleged Respondent HOA violated A.R.S. § 33-1804(B) and Bylaw 1.5 by refusing to place his proposed bylaw amendment (Bylaw 3.13, concerning banning directors whose actions resulted in a paid claim) on the agenda or ballot for the annual meeting.
Orders: Petition denied because Petitioner did not establish that Respondent violated the cited statute or bylaw by declining to add the proposed amendment to the agenda or ballot.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1804(B)
Bylaw 1.5
Bylaw 2.2
Analytics Highlights
Topics: HOA, Bylaw Amendment, Meeting Agenda, Director liability, Statute interpretation
Additional Citations:
A.R.S. § 33-1804(B)
A.R.S. § 32-2199(B)
A.R.S. § 41-1092.07(G)(2)
A.R.S. § 41-1092.09
Respondent’s Bylaw 1.5
Respondent’s Bylaw 2.2
Video Overview
Audio Overview
Decision Documents
19F-H1919065-REL Decision – 742075.pdf
Uploaded 2025-10-09T03:34:19 (159.4 KB)
Briefing Doc – 19F-H1919065-REL
Briefing Document: West v. Desert Sage Two Homeowners Association (Case No. 19F-H1919065-REL)
Executive Summary
This document provides a comprehensive analysis of the Administrative Law Judge (ALJ) Decision in the matter of Jason West (Petitioner) versus the Desert Sage Two Homeowners Association (Respondent), Case No. 19F-H1919065-REL. The petition, filed on May 20, 2019, was ultimately denied in a decision issued on October 1, 2019.
The central issue was the Petitioner’s allegation that the Respondent’s Board of Directors violated Arizona statute A.R.S. § 33-1804(B) and its own Bylaw 1.5 by refusing to add his proposed bylaw amendment to the agenda for the annual members’ meeting. The proposed amendment sought to ban directors from serving for five years if their actions resulted in a paid claim against the Association.
The ALJ’s ruling was decisive: the Petitioner failed to meet the burden of proof. The decision rested on a strict interpretation of the relevant statute and bylaws. The ALJ concluded that neither A.R.S. § 33-1804(B) nor the Association’s bylaws compel the Board to place a member-initiated proposal on the agenda of a Board-scheduled meeting. Critically, the bylaws provide a distinct and available remedy for members: Bylaw 2.2 allows members to force a special meeting for any purpose, including bylaw amendments, by gathering the support of 25% of the voting membership. The record showed the Petitioner was aware of this option but did not attempt to use it. Consequently, the petition was dismissed. The Respondent’s request for attorney’s fees was also denied, as the presiding body (the Office of Administrative Hearings) lacks the statutory authority to award them in such proceedings.
1. Case Overview
Case Name
Jason West v. Desert Sage Two Homeowners Association
Case Number
19F-H1919065-REL
Jurisdiction
Office of Administrative Hearings (OAH), Arizona
Presiding Judge
Administrative Law Judge Diane Mihalsky
Hearing Date
September 26, 2019
Decision Date
October 1, 2019
Petitioner
Jason West, appearing on his own behalf
Respondent
Desert Sage Two Homeowners Association, represented by Bradley R. Jardine, Esq.
Core Allegation: The Petitioner alleged that the Respondent’s Board violated state law and its governing documents by refusing to include his proposed bylaw amendment on the agenda and ballot for the annual meeting held in June 2019.
2. The Proposed Bylaw Amendment (Bylaw 3.13)
The Petitioner submitted a proposal to add a new Bylaw 3.13 to the Association’s governing documents. The full text of the proposed amendment is as follows:
Directors whose actions result in a paid claim
In an effort to reduce liability to the Association, any current or former director whose actions have resulted in a paid claim by the Association or its insurance carrier, is banned from serving as a director for a period of five years from the date of the final payment. This five year directorship ban also applies to any other individual co-owning an Association lot with the director. This Amendment is retroactive.
The stated purpose of the amendment was to reduce the Association’s liability. The decision notes that some of the current Board members may have been serving when the Association’s insurance carrier paid legal fees and other costs associated with a previous petition filed by the Petitioner.
3. Chronology of the Dispute
• December 23, 2018: The Petitioner first sent his proposed Bylaw 3.13 amendment to Joanelize Morales, the Association’s property manager.
• January 3 & 4, 2019: The Petitioner emailed Mickey Latz, owner of the management company, demanding the proposal be added to the next meeting’s agenda and ballot. In this correspondence, the Petitioner explicitly stated his awareness of the alternative process, writing, “I can also force the Board to call a Special Meeting of the Members at any time with 10 signatures from members of our Association. This is Article 2.2 of our Bylaws.”
• January – June 2019: Mr. Latz repeatedly informed the Petitioner that the Board, based on legal advice, had decided not to add the proposal to the agenda of a Board-scheduled meeting.
• April 17, 2019: Notice was sent to members for the annual meeting scheduled for June 4, 2019. The agenda was limited to (1) Election of Directors and (2) Approval of 2018 Annual Meeting Minutes. On the same day, the Petitioner re-sent his proposed amendment.
• May 14, 2019: The Petitioner attended a Board meeting and threatened to file a petition with the Department of Real Estate if his amendment was not placed on the agenda.
• May 20, 2019: The Petitioner filed the formal petition that led to this hearing.
• June 3, 2019: A notice was sent rescheduling the meeting to June 20, 2019, with the agenda unchanged.
• June 20, 2019: At the annual meeting, the Petitioner, whose name was on the ballot, was not elected to the Board of Directors.
4. Governing Authorities and Bylaws
The ALJ’s decision centered on the interpretation of one state statute and two specific Association bylaws.
• A.R.S. § 33-1804(B): This Arizona statute governs homeowners’ association meetings. It requires annual meetings and specifies notice requirements. It explicitly provides a mechanism for members to call special meetings: “Special meetings of the members’ association may be called by the president, by a majority of the board of directors or by members having at least twenty-five percent, or any lower percentage specified in the bylaws, of the votes in the association.”
• Bylaw 1.5 (Amendment Process): This bylaw states that amendments can be made “at a regular or special meeting of the Members, by a vote of the Members having a majority (more than 50%) of the votes.” The ALJ found that this bylaw is permissive, allowing for votes on amendments, but does not obligate the Board to place any specific proposal on an agenda.
• Bylaw 2.2 (Special Meetings): This bylaw mirrors the state statute, allowing members to compel a meeting. It states: “Special meetings of the Members may be called at any time … upon written request signed by Members having at least one-fourth (1/4) of the authorized votes… which request shall be delivered to the President or Secretary.”
5. Summary of Key Testimony
The hearing included testimony from the Petitioner and six witnesses he subpoenaed, including property managers and the three current Board members.
• Board Members (Bryan Selna, David Epstein, Linda Seidler): All testified that they consulted with the Association’s attorneys and property management company. Based on the advice received, they collectively decided not to add the Petitioner’s proposal to the agenda.
• Mickey Latz (Property Management Co. Owner): Testified that the Board as a whole, not the secretary, determines the meeting agenda. He affirmed that counsel had advised the Board it was not obligated to add member-requested items. Mr. Latz testified that he explicitly pointed the Petitioner to the process outlined in Bylaw 2.2, which allows members to call their own meetings directly.
• Joanelize Morales (Property Manager): Confirmed that she prepares meeting agendas based on the Board’s instructions. She also testified that the Petitioner never attempted to use the Bylaw 2.2 process to gather the support of his neighbors to schedule a meeting to consider his proposed amendment.
6. Historical Context and Prior Litigation
The decision provides context regarding the Petitioner’s previous interactions with the Association.
• Prior Petition (OAH Case No. 17F-H1716031-REL): In April 2017, the Petitioner filed a petition concerning the Board’s failure to fill vacant positions. On June 28, 2017, an ALJ dismissed that petition, concluding that the Board had done all it could and that vacancies were due in part to the Petitioner’s “obstructionist tactics.”
• Successful Amendment (Bylaw 3.12): In April 2017, the Petitioner proposed a different amendment regarding director resignations. The Board at that time agreed to submit it to a vote, and it was passed by the membership in May 2017.
7. Administrative Law Judge’s Decision and Rationale
The ALJ’s conclusions of law methodically dismantled the Petitioner’s claims, leading to the dismissal of the petition.
• Burden of Proof: The decision established that the Petitioner bore the burden of proving, by a preponderance of the evidence, that the Respondent had violated the statute and bylaw.
• Statutory and Bylaw Interpretation: The ALJ applied a plain-language reading to the governing authorities.
◦ The court found that nothing in the language of A.R.S. § 33-1804(B)requires an HOA board to add an item to an agenda at a member’s request. Instead, it provides the remedy for members to call a meeting themselves.
◦ Similarly, the court concluded that Bylaw 1.5 allows for bylaw amendments to be considered at meetings but does not compel the Board to include such proposals on the agenda of a meeting it has noticed.
◦ The ALJ found that Bylaw 2.2 provides the explicit and proper procedure for a member to bring an issue to a vote when the Board declines to do so: gather support from 25% of the members to call a special meeting.
• Final Ruling: Because the Petitioner failed to establish a violation of any cited statute or bylaw, the petition was ordered to be denied.
• Attorney’s Fees: The Respondent’s request for attorney’s fees was denied. The decision cited legal precedent establishing that administrative bodies like the Department of Real Estate and the OAH are not empowered by the legislature to award attorney’s fees in these types of disputes.
Study Guide – 19F-H1919065-REL
Study Guide: West v. Desert Sage Two Homeowners Association
Short-Answer Quiz
Answer the following questions in 2-3 complete sentences, based on the provided administrative law judge decision.
1. Who are the Petitioner and the Respondent in this case, and what is their relationship?
2. What specific action did the Petitioner, Jason West, allege the Respondent took that violated Arizona statute and the association’s bylaws?
3. Describe the substance of the proposed Bylaw 3.13 that the Petitioner wanted to add to the agenda.
4. What was the Respondent’s primary defense for not adding the proposed bylaw amendment to the annual meeting’s agenda or ballot?
5. According to Bylaw 2.2, what procedural option did the Petitioner have to bring his proposed amendment to a vote without the Board’s approval?
6. What was the outcome of the Petitioner’s previous case against the Respondent in 2017 (OAH Case No. 17F-H1716031-REL)?
7. What two specific authorities did the Petitioner claim the Respondent’s Board violated?
8. According to the Administrative Law Judge’s interpretation, does A.R.S. § 33-1804(B) require an HOA board to add an item to an agenda at a single member’s request?
9. What was the final order of the Administrative Law Judge in this case (No. 19F-H1919065-REL)?
10. What was the judge’s ruling regarding the Respondent’s request for attorney’s fees, and what was the reason for this ruling?
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Answer Key
1. The Petitioner is Jason West, who owns a house in the Desert Sage Two development. The Respondent is the Desert Sage Two Homeowners Association, of which the Petitioner is a member.
2. The Petitioner alleged that the Respondent violated A.R.S. § 33-1804(B) and its own Bylaw 1.5. The specific violation was the Board’s failure to place a bylaw amendment proposed by the Petitioner on the agenda of the association’s annual meeting.
3. The proposed Bylaw 3.13 sought to ban any current or former director from serving on the board for five years if their actions resulted in a paid claim by the association or its insurance carrier. This ban would be retroactive and also apply to any individual co-owning a lot with the director.
4. The Respondent’s Board, after consulting with its attorneys and property management company, argued that neither state law nor its bylaws obliged them to add items to an agenda at a single member’s request. They contended that the Petitioner had the option to call a special meeting himself by gathering support from other members.
5. Bylaw 2.2 allows for a special meeting of the members to be called upon a written request signed by members who hold at least one-fourth (25%) of the authorized votes. The Petitioner was aware of this option but had not attempted to use it.
6. In the previous case, the Administrative Law Judge dismissed the Petitioner’s petition. The judge concluded that the Board had done all it could to fill vacant positions and that the Petitioner’s own “obstructionist tactics” were part of the reason no eligible members were willing to serve.
7. The Petitioner claimed the Respondent’s Board violated Arizona Revised Statute § 33-1804(B) and the association’s Bylaw 1.5.
8. No, the judge concluded that nothing in the language of A.R.S. § 33-1804(B) requires a homeowners’ association board to add an item to an agenda or ballot at the request of a single member. The statute only provides that members with at least 25% of the votes can independently call a meeting.
9. The Administrative Law Judge ordered that the Petitioner’s petition be denied. The judge found that the Petitioner had not established that the Respondent’s Board violated either A.R.S. § 33-1804(B) or Bylaw 1.5.
10. The judge ruled that attorney’s fees could not be awarded to the Respondent. The reason given is that the legislature has not empowered the Department of Real Estate or the Office of Administrative Hearings to award attorney’s fees in this type of administrative proceeding.
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Essay Questions
Construct a detailed essay response for each of the following prompts, using only evidence and reasoning found within the case document.
1. Analyze the Administrative Law Judge’s method of statutory construction and interpretation of restrictive covenants. How did the judge apply these principles to A.R.S. § 33-1804(B) and Bylaw 1.5 to reach a conclusion?
2. Discuss the balance of power between an individual HOA member and the Board of Directors as illustrated in this case. What rights and recourses are available to a member who disagrees with a Board decision, according to the Respondent’s Bylaws?
3. Explain the concept of “burden of proof” as it applies to this case. Who held the burden of proof, what was the standard required, and why was the Petitioner unable to meet this standard?
4. Examine the history between the Petitioner and the Respondent as detailed in the “Findings of Fact.” How might this prior history, including the 2017 legal case and a previously successful bylaw amendment, have influenced the actions of both parties in the current dispute?
5. Based on the testimony of Michael David (“Mickey”) Latz and the text of the bylaws, contrast the process for placing an item on the agenda of a Board-scheduled meeting versus the process for calling a member-initiated special meeting. What are the key differences in initiative, requirements, and control?
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Glossary of Key Terms
Definition from Source Context
Administrative Law Judge (ALJ)
An independent official (Diane Mihalsky) from the Office of Administrative Hearings who presides over evidentiary hearings and issues decisions on petitions filed with the Arizona Department of Real Estate.
A.R.S. § 33-1804(B)
An Arizona statute cited by the Petitioner. It stipulates that an HOA members’ meeting must be held at least annually and that special meetings can be called by the president, a board majority, or members with at least 25% of the votes.
Bylaw 1.5
A bylaw of the Desert Sage Two HOA that states the Bylaws may be amended at a regular or special meeting by a majority vote of members present in person or by proxy.
Bylaw 2.2
A bylaw of the Desert Sage Two HOA that allows for special meetings of the members to be called by the president, the Board, or upon written request from members holding at least one-fourth (25%) of the votes.
Department
The Arizona Department of Real Estate, the state body authorized to receive and decide petitions for hearings from members of homeowners’ associations.
Homeowners’ Association
An organization whose members own property and/or residences in a specific development (in this case, Desert Sage Two in Scottsdale, Arizona).
Office of Administrative Hearings (OAH)
An independent state agency to which the Department refers petitions for an evidentiary hearing.
Petitioner
Jason West, the member of the homeowners’ association who filed the petition alleging a violation by the association’s Board.
Petition
A formal complaint filed with the Department of Real Estate by an HOA member or the HOA itself concerning alleged violations.
Preponderance of the evidence
The burden of proof standard required in the hearing. It is defined as “proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with “the most convincing force.”
Respondent
The Desert Sage Two Homeowners Association, the entity against which the petition was filed.
Restrictive Covenant
A rule or provision within community documents, like bylaws, that is enforced to give effect to the intent of the parties if it is unambiguous.
Blog Post – 19F-H1919065-REL
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This text is an Administrative Law Judge Decision from the Arizona Office of Administrative Hearings (OAH) concerning a dispute between a homeowner, Jason West (Petitioner), and his association, the Desert Sage Two Homeowners Association (Respondent). The Petitioner alleged that the Respondent violated Arizona statute (A.R.S. § 33-1804(B)) and an association bylaw by refusing to place his proposed bylaw amendment on the agenda of the annual meeting. The proposed amendment sought to ban directors whose actions resulted in a paid insurance claim from serving for five years, but the Administrative Law Judge (ALJ) found that neither the statute nor the association’s bylaws required the Board to add a member-proposed item to a scheduled agenda or ballot. Therefore, the ALJ concluded that the Petitioner failed to prove a violation and denied the petition.
What was the specific legal and procedural context of this homeowners association dispute?
How did the Petitioner’s proposed bylaw amendment attempt to alter Board member liability?
What statutory and bylaw provisions guided the final Administrative Law Judge decision?
Edward A. Padilla(property manager) Desert Sage Two Homeowners Association Property manager in May 2017; testified for Petitioner; also referred to as 'Eddie'
Joanelize Morales(property manager) Desert Sage Two Homeowners Association Property manager since August 2018; testified for Petitioner
Bryan Robert Selna(board member) Desert Sage Two Homeowners Association Current Vice President of Respondent's Board; testified for Petitioner
David Epstein(board member) Desert Sage Two Homeowners Association Current President of Respondent's Board; testified for Petitioner
Linda Maria Seidler(board member) Desert Sage Two Homeowners Association Current Secretary of Respondent's Board; testified for Petitioner
Michael David Latz(property manager) Golden Valley Property Management Owner of Golden Valley Property Management; testified for Petitioner; also referred to as 'Mickey'
Neutral Parties
Diane Mihalsky(ALJ) Office of Administrative Hearings
Judy Lowe(ADRE Commissioner) Arizona Department of Real Estate
The ALJ granted the petition, finding that the HOA Board violated ARIZ. REV. STAT. § 33-1804(B) and the Association Bylaws by amending the Bylaws on November 20, 2017, without a quorum of Association members voting in favor and without proper notice. The amendment was invalidated, and the HOA was fined $250.00 and ordered to refund the Petitioner's filing fee.
Why this result: The Board lacked the authority to amend the Bylaws without the vote of the Association membership, and failed to provide required notice for the proposed amendment, violating ARIZ. REV. STAT. § 33-1804(B) and the Association Bylaws.
Key Issues & Findings
Whether Sycamore Vista No. 8 Homeowners Association violated Association Bylaws Article III, Sections 3 & 4 and Article VIII, Section 1 in an action taken by the board on November 20, 2017.
The Respondent HOA Board amended Association Bylaws on November 20, 2017, without proper notice to the members and without a vote by a majority of Association members, which violated the statutory notice requirement and the Bylaws. The Board action was consequently invalidated.
Orders: The Petitioner's petition was granted. The Respondent's third amendment to the Association Bylaws, dated November 20, 2017, was invalidated. Respondent was ordered to pay the Petitioner's filing fee and pay a civil penalty of $250.00 to the Planned Community Hearing Office Fund.
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Mail Boxes v. Indus. Comm’n of Ariz., 181 Ariz. 119, 122, 888 P.2d 777, 780 (1995)
Video Overview
Audio Overview
Decision Documents
19F-H1918001-REL Decision – 661797.pdf
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19F-H1918001-REL Decision – 696205.pdf
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Briefing Doc – 19F-H1918001-REL
Briefing Document: Janicek v. Sycamore Vista No. 8 Homeowners Association
Executive Summary
This document provides a comprehensive analysis of the Administrative Law Judge (ALJ) Decision in the case of Jay A. Janicek v. Sycamore Vista No. 8 Homeowners Association (No. 19F-H1918001-REL-RHG). The central issue was the validity of a bylaw amendment enacted by the Association’s Board of Directors on November 20, 2017, without a vote of the general homeowner membership.
The ALJ ruled decisively in favor of the Petitioner, Jay Janicek, finding that the Board’s action was invalid. The decision hinged on a critical interpretation of the Association’s governing documents, concluding that the term “members” in the context of bylaw amendments unambiguously refers to the homeowner membership, not the Board of Directors. The ruling established that the Board does not have the authority to amend bylaws where that power is reserved for the membership.
Furthermore, the ALJ concluded that the Board’s action violated Arizona’s Open Meeting Law (A.R.S. § 33-1804) by failing to provide the required notice to homeowners for a meeting concerning a proposed bylaw amendment. As a result, the amendment was invalidated, and the Association was ordered to pay the Petitioner’s filing fee and a civil penalty of $250.
Case Background and Procedural History
Parties and Jurisdiction
• Petitioner: Jay A. Janicek, a property owner within the Sycamore Vista subdivision and a member of the Respondent Association.
• Respondent: Sycamore Vista No. 8 Homeowners Association (“the Association”), a homeowners’ association in Tucson, Arizona, governed by its Covenants, Conditions, and Restrictions (CC&Rs) and overseen by a Board of Directors.
• Adjudicating Body: The Arizona Office of Administrative Hearings (OAH), an independent state agency, which received the case on referral from the Arizona Department of Real Estate.
The Central Dispute
The core of the dispute was an action taken by the Association’s Board of Directors during a regular meeting on November 20, 2017. At this meeting, the Board, with three of five directors present, voted to approve a third amendment to the Association’s Bylaws. The amendment altered Article VIII Section 6(d), changing the requirement for an annual financial check from:
“cause an annual audit of the Association books to be made by a public accountant at the completion of each fiscal year”
“cause an annual audit, review, or compilation of the Associations financial records to be made by a public accountant within 180 days after the end of the HOA’s fiscal year.”
The Petitioner contended this action was invalid because it was undertaken without a vote of the general Association membership, as he believed the governing documents required.
Timeline of Adjudication
1. July 25, 2018: Petitioner files a petition with the Arizona Department of Real Estate.
2. September 05, 2018: An initial evidentiary hearing is held before the OAH.
3. September 25, 2018: The OAH issues an ALJ Decision in the Petitioner’s favor.
4. October 23, 2018: The Respondent submits a Request for Rehearing.
5. November 07, 2018: The Department grants the rehearing request and refers the matter back to the OAH.
6. March 05, 2019: A rehearing is conducted, based on legal briefs and closing arguments without new evidence.
7. March 25, 2019: The final ALJ Decision is issued, reaffirming the initial ruling in favor of the Petitioner.
Analysis of Governing Documents and Statutes
The case decision rested on the interpretation of specific articles within the Association’s Bylaws and relevant Arizona state statutes.
Key Bylaw Provisions
Article
Section
Description
Article IV
Section 1
States that the “affairs of this Association shall be managed by a Board of not less than three (3) nor more than five (5) directors.”
Article VI
Section 1
Establishes that regular meetings of the Board of Directors shall be held monthly without notice.
Article VI
Section 2
Governs special meetings of the Board, requiring not less than three days’ notice to each Director.
Article VI
Section 3
Defines a quorum for Board meetings as “a majority of the number of Directors.”
Article VII
Section 1
Outlines the Powers and Duties of the Board of Directors. This section does not explicitly grant the Board the power to amend the Bylaws.
Article XIII
Section 1
(The central provision in the dispute) States: “These Bylaws may be amended at a regular or special meeting of the Board of Directors of the Association by a vote of a majority of a quorum of members present in person or by proxy.”
Relevant Arizona Statutes
• A.R.S. § 33-1804 (Open Meeting Law): This statute was central to the Petitioner’s argument and the ALJ’s final decision.
◦ Subsection (A): Requires that all meetings of the members’ association and the board of directors be open to all members of the association.
◦ Subsection (B): Mandates specific notice requirements for any meeting of the members, stating that notice “shall also state the purpose for which the meeting is called, including the general nature of any proposed amendment to the declaration or bylaws.”
◦ Subsection (F): The ALJ noted that this section codifies the legislative intent of the statute, which, as cited from a Governor’s message, is to “promote transparency and participation for all residents in homeowners’ association governance.”
Arguments of the Parties
Petitioner’s Position (Jay Janicek)
The Petitioner’s case was built on a textual interpretation of the Bylaws and adherence to state law.
• Interpretation of “Members”: The Petitioner argued that the word “members” in Article XIII, Section 1 refers to the general homeowner membership of the Association, not the members of the Board of Directors.
• Textual Differentiation: The drafters of the Bylaws intentionally used the words “members” and “directors” distinctly throughout the document. Where the intent was to refer to the Board, the word “Director” was specifically used (e.g., Article VI).
• Proxy Voting: The inclusion of the term “proxy” in Article XIII supports the argument that the vote is for the general membership, as Board members are not permitted to vote by proxy.
• Lack of Explicit Power: Article VII, which details the Board’s powers, does not grant the authority to amend the Bylaws, implying such power is reserved for the membership.
• Statutory Violation: The Board’s action violated A.R.S. § 33-1804 because the required notice for a meeting concerning a bylaw amendment was not provided to the general membership.
• Legal Precedent: The Petitioner cited Powell v. Washburn, an Arizona Supreme Court case holding that restrictive covenants (which he argued include the Bylaws) should be interpreted to give effect to the intention of the parties as determined from the entire document.
Respondent’s Position (Sycamore Vista No. 8 HOA)
The Association argued that its actions were a valid exercise of the Board’s authority.
• Broad Authority: The Respondent cited Article IV, which states the “affairs of this Association shall be managed by a Board,” to assert its general authority.
• Valid Board Meeting: The amendment occurred at a regular monthly Board meeting as allowed by Article VI. The meeting had three directors present, which constituted a valid quorum for transacting business.
• Interpretation of Article XIII: The Respondent argued that the phrase “at a regular or special meeting of the Board of Directors” in Article XIII indicates that the Board is the body empowered to make the amendment, and the word “members” in that context refers to the members of the Board.
• No Open Meeting Law Violation: The Respondent contended its conduct was not a violation because the action occurred during a regular Board meeting with a proper quorum of directors.
Administrative Law Judge’s Decision and Rationale
The ALJ’s conclusions were unequivocal, fully adopting the Petitioner’s interpretation of the governing documents and state law.
Conclusions of Law
• Burden of Proof: The ALJ found that the Petitioner successfully sustained his burden of proving by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1804.
• Interpretation of “Members” vs. “Directors”: The decision states that the governing documents are clear: “‘members’ refers to the body of owners who make up the membership of the Association, and ‘directors’ refers to the few who are elected to the membership’s Board.” The ALJ found the differentiation to be intentional by the drafters.
• Avoiding Absurdity: The decision holds that construing the Bylaws to allow the Board to amend them would create an absurdity. The ALJ wrote, “The voices of few cannot speak for all, unless all have bestowed those few with the power and authority to speak on their behalf.”
• Violation of Statute and Bylaws: The ALJ concluded that the Board’s action on November 20, 2017, violated both A.R.S. § 33-1804(B) due to a lack of notice and Article III of the Association Bylaws.
• Rejection of Respondent’s Argument: The decision explicitly states, “The Tribunal is not swayed by Respondent’s closing arguments.”
Final Order
Based on the findings and conclusions, the ALJ issued the following binding order:
1. Petition Granted: The Petitioner’s petition was officially granted.
2. Amendment Invalidated: The third amendment to the Association Bylaws, as enacted on November 20, 2017, was invalidated.
3. Fees and Penalties: The Respondent was ordered to pay the Petitioner’s filing fee and a civil penalty of $250.00 to the Planned Community Hearing Office Fund.
Study Guide – 19F-H1918001-REL
Study Guide: Janicek v. Sycamore Vista No. 8 Homeowners Association
Short-Answer Quiz
1. Who were the primary parties in the case No. 19F-H1918001-REL-RHG, and what were their respective roles?
2. What specific action taken by the Respondent on November 20, 2017, prompted the Petitioner to file a complaint?
3. According to the Petitioner, what was the crucial difference in meaning between the terms “members” and “directors” as used in the Association’s Bylaws?
4. What was the Respondent’s central argument for why the Board of Directors had the authority to amend the Bylaws at its regular meeting?
5. What is Arizona’s Open Meeting Law, and how did the Petitioner argue that the Respondent violated it?
6. What was the financial concern that the Petitioner argued could potentially impact him as a homeowner due to the Board’s amendment?
7. Describe the procedural history of this case after the initial Administrative Law Judge (ALJ) Decision on September 25, 2018.
8. What case did the Petitioner cite regarding the interpretation of restrictive covenants, and what principle did it establish?
9. What is the legal standard of proof required in this proceeding, and how is it defined in the document?
10. What was the final outcome of the case, including the specific orders issued by the Administrative Law Judge?
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Answer Key
1. The primary parties were Jay A. Janicek, the Petitioner, and the Sycamore Vista No. 8 Homeowners Association, the Respondent. The Petitioner is a property owner and member of the Association who brought the legal action, while the Respondent is the homeowners’ association governed by a Board of Directors.
2. On November 20, 2017, the Respondent’s Board of Directors held a regular meeting where they voted to approve a third amendment to the Association’s Bylaws. This amendment changed the requirement for an “annual audit…by a public accountant” to an “annual audit, review, or compilation” of financial records.
3. The Petitioner argued that the term “members” in Article XIII of the Bylaws refers to the entire body of property owners in the Association, not the Board of Directors. He contended that if the drafter had intended to give amendment power to the Board, the specific word “directors” would have been used, as it was in other sections of the Bylaws.
4. The Respondent argued that its actions were proper because the Bylaws empower the Board to manage the Association’s affairs at regular monthly meetings. They contended that since a quorum of three directors was present at the November 20, 2017 meeting, the Board was empowered to transact business, which they interpreted to include amending the bylaws as described in Article XIII.
5. Arizona’s Open Meeting Law is ARIZ. REV. STAT. § 33-1804, which requires meetings of a homeowners’ association’s board and members to be open to all members. The Petitioner argued the Respondent violated this by amending a bylaw without proper notice to the full membership, which is required for any proposed bylaw amendment, thus undermining the law’s legislative intent of transparency.
6. The Petitioner was concerned that the amendment weakened the financial oversight of the Association. It modified a requirement for a third-party audit to a less stringent “review, or compilation,” creating a risk that the Association could perform its own financial checks, and as a homeowner, he had an interest in ensuring the Association’s financials were correct.
7. After the initial decision in the Petitioner’s favor on September 25, 2018, the Respondent submitted a Request for Rehearing on October 23, 2018. The Department of Real Estate granted this request on November 7, 2018, and the matter was referred back to the Office of Administrative Hearings for a rehearing, which ultimately took place on March 5, 2019.
8. The Petitioner cited Powell v. Washburn. This case established the principle that restrictive covenants should be interpreted to give effect to the intention of the parties, as determined from the language of the entire document and the purpose for which the covenants were created.
9. The legal standard of proof was a “preponderance of the evidence.” The document defines this as “such proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with the most “convincing force” that inclines an impartial mind to one side of an issue.
10. The final outcome was a ruling in favor of the Petitioner. The ALJ granted the petition, invalidated the third amendment to the Bylaws that was passed on November 20, 2017, and ordered the Respondent to pay the Petitioner’s filing fee and a civil penalty of $250.00.
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Essay Questions
1. Analyze the Administrative Law Judge’s reasoning in differentiating between the terms “members” and “directors.” How did the principle of avoiding absurdity and considering the drafter’s intent, as seen throughout the Bylaws, contribute to the final decision?
2. Discuss the interplay between the Association’s governing documents (CC&Rs and Bylaws) and state law (ARIZ. REV. STAT. § 33-1804). Explain which authority took precedence in this case and why the Board’s actions were found to violate both.
3. Evaluate the legal strategy employed by the Petitioner, Jay A. Janicek. Consider his use of specific Bylaw articles, the citation of Powell v. Washburn, and his argument regarding the legislative intent of the Open Meeting Law.
4. Examine the arguments presented by the Respondent, Sycamore Vista No. 8 Homeowners Association. Why did the Judge find their interpretation of the Bylaws unconvincing, despite their claims that the Board was empowered to transact business with a quorum present?
5. Based on the text, discuss the broader implications of this ruling for homeowners’ associations in Arizona. How does this decision reinforce the principles of transparency and the limitations of a Board’s power relative to the association’s general membership?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge, in this case Jenna Clark, who presides over administrative hearings at the Office of Administrative Hearings (OAH).
ARIZ. REV. STAT. § 33-1804
A section of the Arizona Revised Statutes, also known as Arizona’s Open Meeting Law, which mandates that meetings of an HOA’s members and board of directors must be open to all members and requires specific notice for meetings where bylaw amendments will be considered.
Bylaws
A set of rules that govern the internal operations of the homeowners’ association. In this case, key articles discussed include Article VI (Meeting of Directors), Article VII (Powers of the Board), and Article XIII (Amendments).
Covenants, Conditions, and Restrictions. These are governing documents that form an enforceable contract between the Association and each property owner, empowering the Association to control certain aspects of property use.
Member
As defined in the Association’s documents, a person entitled to membership by virtue of being a property owner within the Sycamore Vista subdivision. The Judge concluded this term refers to the body of owners, not the Board of Directors.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona, unaffiliated with the parties, responsible for conducting evidentiary hearings and making legal decisions in disputes like this one.
Petitioner
The party who files a petition initiating a legal case. In this matter, the Petitioner was Jay A. Janicek, a homeowner in the Association.
Preponderance of the evidence
The burden of proof in this case. It is defined as evidence that is more likely true than not and has the most convincing force, sufficient to incline a fair and impartial mind to one side of an issue.
The authority to represent someone else, especially in voting. The document notes that the term “proxy” applies to votes of the members, as members of the Board are not permitted to vote by proxy.
Quorum
The minimum number of members of a deliberative assembly necessary to conduct the business of that group. For the Respondent’s Board of Directors, a quorum is defined as a majority of the number of Directors.
Respondent
The party against whom a petition is filed. In this matter, the Respondent was the Sycamore Vista No. 8 Homeowners Association.
Restrictive Covenants
Legal obligations imposed in a deed to real property to do or not do something. The Petitioner argued this term included the CC&Rs, Bylaws, and rules of the Association.
Tribunal
A body established to settle certain types of dispute. In this document, it refers to the Administrative Law Judge at the Office of Administrative Hearings.
Blog Post – 19F-H1918001-REL
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The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between Jay A. Janicek (Petitioner) and the Sycamore Vista No. 8 Homeowners Association (Respondent). The core issue of the case, designated No. 19F-H1918001-REL-RHG, revolves around whether the Homeowners Association violated its Bylaws and Arizona state statute (§ 33-1804) when its Board of Directors unilaterally amended the Bylaws on November 20, 2017. The Administrative Law Judge determined that the Board’s action was invalid because the power to amend the Bylaws was delegated to the Association’s general membership, not the Board of Directors, and the Board failed to provide the required notice for such an amendment. Consequently, the Petitioner’s request was granted, the amendment was invalidated, and the Association was ordered to pay the Petitioner’s filing fee and a civil penalty.
What central conflict drove the administrative hearing and subsequent rehearing process?
How did governing documents and Arizona statutes shape the final legal decision?
What ultimate implications does this ruling have for homeowners association governance and member rights?
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Case Participants
Petitioner Side
Jay A. Janicek(petitioner) Appeared on his own behalf at initial hearing; Observed rehearing
Jake Kubert(petitioner attorney) Dessaules Law Group Appeared at rehearing
