Tag Archives: Open Meetings

Clifford S Burnes V. Saguaro Crest Homeowners’ Association

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Case Summary

Case ID 23F-H038-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-04-20
Administrative Law Judge Velva Moses-Thompson
Outcome Petitioner prevailed on the allegation that Respondent failed to provide notice of the board meeting in violation of A.R.S. § 33-1804, resulting in a refund of $500.00. Respondent prevailed on the allegation that the board meeting was required to be open, as the meeting was properly closed to receive legal advice under a statutory exception.
Filing Fees Refunded $1,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Clifford S. Burnes Counsel —
Respondent Saguaro Crest Homeowners' Association Counsel John T. Crotty, Esq.

Alleged Violations

A.R.S. § 33-1804
A.R.S. § 33-1804

Outcome Summary

Petitioner prevailed on the allegation that Respondent failed to provide notice of the board meeting in violation of A.R.S. § 33-1804, resulting in a refund of $500.00. Respondent prevailed on the allegation that the board meeting was required to be open, as the meeting was properly closed to receive legal advice under a statutory exception.

Why this result: Petitioner lost the open meeting claim because the meeting was protected by the legal advice exception under A.R.S. § 33-1804(A)(1).

Key Issues & Findings

Failure to provide notice of board meeting to members.

Petitioner alleged Respondent conducted an unnoticed board meeting regarding obtaining legal advice. Respondent conceded the meeting was unnoticed. The ALJ concluded Respondent was required to provide notice to members that it would be conducting a board meeting to consider legal advice from an attorney that would be closed to members, and failed to do so.

Orders: Respondent must pay Petitioner the filing fee of $500.00 within thirty (30) days. Respondent is directed to comply with the notice requirements of A.R.S. § 33-1804 going forward.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1804
  • A.R.S. § 33-1804(D)

Board meeting was not open to all members of the association.

Petitioner alleged the meeting, attended by two board members and an attorney, should have been open. Respondent contended the meeting was a permitted closed session to consider legal advice from an attorney regarding reorganization/disbanding, pursuant to A.R.S. § 33-1804(A)(1). The ALJ concluded the meeting was not required to be open because the board members were solely receiving legal advice from an attorney.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1804
  • A.R.S. § 33-1804(A)(1)

Analytics Highlights

Topics: HOA, Open Meetings, Notice Requirement, Legal Advice Exception, Planned Communities Act
Additional Citations:

  • A.R.S. § 33-1804
  • A.R.S. § 33-1804(A)(1)
  • A.R.S. § 33-1804(C)
  • A.R.S. § 33-1804(D)
  • A.R.S. § 33-1804(F)
  • A.R.S. § 32-2199(1)

Video Overview

Audio Overview

Decision Documents

23F-H038-REL Decision – 1036995.pdf

Uploaded 2026-04-24T12:05:06 (52.7 KB)

23F-H038-REL Decision – 1050950.pdf

Uploaded 2026-04-24T12:05:15 (119.2 KB)

23F-H038-REL Decision – 1036995.pdf

Uploaded 2026-01-23T17:54:41 (52.7 KB)

23F-H038-REL Decision – 1050950.pdf

Uploaded 2026-01-23T17:54:44 (119.2 KB)

The administrative hearing (Docket No. 23F-H038-REL) involved Petitioner Clifford S. Burnes and Respondent Saguaro Crest Homeowners' Association (HOA). The hearing was conducted virtually on March 31, 2023, before Administrative Law Judge Velva Moses-Thompson.

Key Facts and Main Issues

The core dispute concerned an HOA meeting held on or about May 31, 2022. The Petitioner alleged that the HOA violated Arizona Revised Statutes (A.R.S.) § 33-1804, which governs open meetings for planned communities, on two specific points: that the meeting was not noticed and that it was not open to association members.

The meeting involved two of the three HOA board members (Esmeralda Sarina-Ayala Martinez and Dave Madill) meeting with an attorney to obtain legal advice regarding the potential dissolution of the HOA and the disposition of the subdivision's 18-acre common area. Both parties stipulated during the hearing that the meeting was neither noticed nor open to the general membership.

Key Legal Arguments

  1. Respondent's Argument (HOA): The HOA contended that they had not violated the statute because the meeting's purpose fell under the exception allowing a closed session for receiving legal advice from an attorney pursuant to A.R.S. § 33-1804(A)(1). Counsel argued that the closed nature of the meeting exempted them from the typical notice requirements. Furthermore, the Respondent argued that because only two of the three board members were present, and no votes or formal actions were taken, it did not constitute an official "meeting of the board of directors" requiring statutory notice.
  2. Petitioner's Argument: The Petitioner argued that even if the meeting was closed for legal advice, the law still requires notice to be given. He asserted that the HOA failed to comply with requirements, such as identifying the statutory authority for closing the meeting before proceeding, as outlined in A.R.S. § 33-1804(C). Mr. Burns contended that because the meeting involved two board members (which could constitute a quorum depending on the definition) discussing critical HOA business (dissolution), it should have adhered to open meeting and notice provisions.

Outcome and Final Decision

The Administrative Law Judge (ALJ) issued a decision on April 20, 2023. The ALJ’s conclusion was split, with both parties deemed prevailing on one issue.

  1. Openness Issue (HOA Wins): The ALJ concluded that the HOA did not violate A.R.S. § 33-1804 by closing the meeting, as the only information discussed and obtained was legal advice from an attorney, which is an allowable exception.
  2. Notice Issue (Petitioner Wins): The ALJ concluded that the HOA violated A.R.S. § 33-1804 when it failed to provide notice to its members of the board meeting, even though the content was privileged. The ALJ concluded that the statute requires notice even for meetings held to consider legal advice.

Orders and Remedies:

  • The Respondent HOA was ordered to pay the Petitioner his filing fee of $500.00.
  • The Respondent was directed to comply with the notice requirements of A.R.S. § 33-1804 going forward.
  • The Petitioner’s request for a civil penalty was denied.

Questions

Question

If the HOA board meets with their attorney, do they still have to notify homeowners about the meeting?

Short Answer

Yes. Even if the meeting will be closed for legal advice, the board is legally required to provide notice to the members that the meeting is occurring.

Detailed Answer

The ALJ ruled that while a board can close a meeting to receive legal advice, they cannot skip the notice requirement. The HOA in this case violated the law by failing to provide notice of a board meeting where they obtained legal advice.

Alj Quote

Therefore, the Administrative Law Judge concludes that Respondent violated A.R.S. § 33-1804 when it failed to provide notice to its members of the March 31, 2022 board meeting where it obtained legal advice from an attorney.

Legal Basis

A.R.S. § 33-1804

Topic Tags

  • meetings
  • notice
  • legal advice

Question

Can the HOA board exclude homeowners from a meeting if they are discussing legal advice?

Short Answer

Yes. The board is permitted to close a portion of a meeting if it is limited to considering legal advice from an attorney.

Detailed Answer

The ALJ determined that the HOA did not violate the open meeting law by keeping the meeting closed, because the sole purpose was to receive legal advice. This is a specific exception to the open meeting requirement.

Alj Quote

The Administrative law Judge further concludes that Respondent did not violate A.R.S. § 33-1804 when it failed to make the March 31, 2022 board meeting open to members when the only information discussed and obtained was legal advice from an attorney.

Legal Basis

A.R.S. § 33-1804(A)(1)

Topic Tags

  • meetings
  • exclusions
  • attorney-client privilege

Question

Does a gathering of board members count as a 'meeting' if they are just meeting informally or for a workshop?

Short Answer

Yes. If a quorum of the board meets to discuss association business, even informally, they must follow open meeting and notice laws.

Detailed Answer

The decision cites the statute stating that any quorum meeting informally to discuss business must comply with notice and open meeting provisions, regardless of whether a formal vote is taken.

Alj Quote

Any quorum of the board of directors that meets informally to discuss association business, including workshops, shall comply with the open meeting and notice provisions of this section without regard to whether the board votes or takes any action on any matter at that informal meeting.

Legal Basis

A.R.S. § 33-1804(E)(4)

Topic Tags

  • meetings
  • quorum
  • workshops

Question

If I file a petition against my HOA and win, will the HOA have to reimburse my filing fees?

Short Answer

Yes, the judge can order the HOA to reimburse the filing fee if the homeowner prevails on the issue.

Detailed Answer

In this case, because the homeowner prevailed on the issue regarding the lack of notice, the ALJ ordered the HOA to pay back the $500 filing fee.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioner his filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.

Legal Basis

Order of the ALJ

Topic Tags

  • fees
  • reimbursement
  • penalties

Question

Does a violation of the open meeting law always result in a fine for the HOA?

Short Answer

No. The judge has discretion and may decide that no civil penalty is appropriate even if a violation occurred.

Detailed Answer

Although the HOA was found to have violated the notice statute, the ALJ explicitly stated that no civil penalty was appropriate in this specific matter.

Alj Quote

No Civil Penalty is found to be appropriate in this matter.

Legal Basis

Discretion of ALJ

Topic Tags

  • civil penalty
  • fines
  • enforcement

Question

What legal standard do I have to meet to prove my HOA violated the rules?

Short Answer

The homeowner must prove the violation by a 'preponderance of the evidence,' meaning it is more probably true than not.

Detailed Answer

The decision defines the burden of proof as the greater weight of the evidence, sufficient to incline a fair and impartial mind to one side rather than the other.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated the CC&Rs by a preponderance of the evidence.

Legal Basis

A.A.C. R2-19-119(A) and (B)(1)

Topic Tags

  • legal standard
  • burden of proof
  • evidence

Case

Docket No
23F-H038-REL
Case Title
Clifford S. Burnes v. Saguaro Crest Homeowners' Association
Decision Date
2023-04-20
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Questions

Question

If the HOA board meets with their attorney, do they still have to notify homeowners about the meeting?

Short Answer

Yes. Even if the meeting will be closed for legal advice, the board is legally required to provide notice to the members that the meeting is occurring.

Detailed Answer

The ALJ ruled that while a board can close a meeting to receive legal advice, they cannot skip the notice requirement. The HOA in this case violated the law by failing to provide notice of a board meeting where they obtained legal advice.

Alj Quote

Therefore, the Administrative Law Judge concludes that Respondent violated A.R.S. § 33-1804 when it failed to provide notice to its members of the March 31, 2022 board meeting where it obtained legal advice from an attorney.

Legal Basis

A.R.S. § 33-1804

Topic Tags

  • meetings
  • notice
  • legal advice

Question

Can the HOA board exclude homeowners from a meeting if they are discussing legal advice?

Short Answer

Yes. The board is permitted to close a portion of a meeting if it is limited to considering legal advice from an attorney.

Detailed Answer

The ALJ determined that the HOA did not violate the open meeting law by keeping the meeting closed, because the sole purpose was to receive legal advice. This is a specific exception to the open meeting requirement.

Alj Quote

The Administrative law Judge further concludes that Respondent did not violate A.R.S. § 33-1804 when it failed to make the March 31, 2022 board meeting open to members when the only information discussed and obtained was legal advice from an attorney.

Legal Basis

A.R.S. § 33-1804(A)(1)

Topic Tags

  • meetings
  • exclusions
  • attorney-client privilege

Question

Does a gathering of board members count as a 'meeting' if they are just meeting informally or for a workshop?

Short Answer

Yes. If a quorum of the board meets to discuss association business, even informally, they must follow open meeting and notice laws.

Detailed Answer

The decision cites the statute stating that any quorum meeting informally to discuss business must comply with notice and open meeting provisions, regardless of whether a formal vote is taken.

Alj Quote

Any quorum of the board of directors that meets informally to discuss association business, including workshops, shall comply with the open meeting and notice provisions of this section without regard to whether the board votes or takes any action on any matter at that informal meeting.

Legal Basis

A.R.S. § 33-1804(E)(4)

Topic Tags

  • meetings
  • quorum
  • workshops

Question

If I file a petition against my HOA and win, will the HOA have to reimburse my filing fees?

Short Answer

Yes, the judge can order the HOA to reimburse the filing fee if the homeowner prevails on the issue.

Detailed Answer

In this case, because the homeowner prevailed on the issue regarding the lack of notice, the ALJ ordered the HOA to pay back the $500 filing fee.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioner his filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.

Legal Basis

Order of the ALJ

Topic Tags

  • fees
  • reimbursement
  • penalties

Question

Does a violation of the open meeting law always result in a fine for the HOA?

Short Answer

No. The judge has discretion and may decide that no civil penalty is appropriate even if a violation occurred.

Detailed Answer

Although the HOA was found to have violated the notice statute, the ALJ explicitly stated that no civil penalty was appropriate in this specific matter.

Alj Quote

No Civil Penalty is found to be appropriate in this matter.

Legal Basis

Discretion of ALJ

Topic Tags

  • civil penalty
  • fines
  • enforcement

Question

What legal standard do I have to meet to prove my HOA violated the rules?

Short Answer

The homeowner must prove the violation by a 'preponderance of the evidence,' meaning it is more probably true than not.

Detailed Answer

The decision defines the burden of proof as the greater weight of the evidence, sufficient to incline a fair and impartial mind to one side rather than the other.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated the CC&Rs by a preponderance of the evidence.

Legal Basis

A.A.C. R2-19-119(A) and (B)(1)

Topic Tags

  • legal standard
  • burden of proof
  • evidence

Case

Docket No
23F-H038-REL
Case Title
Clifford S. Burnes v. Saguaro Crest Homeowners' Association
Decision Date
2023-04-20
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Clifford S. Burnes (petitioner; witness)
    Saguaro Crest Homeowners' Association member
    Also known as Clifford (Norm) S. Burnes,; appeared on behalf of himself,.

Respondent Side

  • John T. Crotty (HOA attorney)
    Saguaro Crest Homeowners' Association
    Appeared on behalf of Respondent,.
  • Esmeralda Sarina Ayala-Martinez (board member; witness)
    Saguaro Crest Homeowners' Association
    Also referred to as Esmeralda Sarina-Ayala Martinez or Esmerita Martinez; testified on behalf of Respondent.
  • Dave Madill (board member)
    Saguaro Crest Homeowners' Association
    Vice President; also referred to as Dave Matt or Dave Medil; was one of the two board members who met with the attorney.
  • Joseph Martinez (board member)
    Saguaro Crest Homeowners' Association
    Husband of Esmeralda Sarina Ayala-Martinez; third board member.
  • David A. Melvoy (HOA attorney/legal counsel)
    Saguaro Crest Homeowners' Association
    Provided legal advice during the underlying May 31, 2022, closed meeting; also referred to as David Mackoy, Eoy, or Eway,,.

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
  • Susan Nicolson (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmission,.
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmission,.
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmission,.
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmission,.
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmission,.

Kathy J Green v. Cross Creek Ranch Community Association

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Case Summary

Case ID 22F-H2222064-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-09-29
Administrative Law Judge Sondra J. Vanella
Outcome The Administrative Law Judge affirmed the petition, finding that the HOA violated A.R.S. § 33-1804 by improperly holding a closed executive session primarily focused on reviewing homeowner comments on design guidelines that did not meet the statutory exceptions for closure. The ALJ ordered the HOA to reimburse the petitioner's filing fee and comply with the statute in the future.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Kathy J. Green, MD Counsel —
Respondent Cross Creek Ranch Community Association Counsel Nick Eicher, Esq.

Alleged Violations

A.R.S. § 33-1804

Outcome Summary

The Administrative Law Judge affirmed the petition, finding that the HOA violated A.R.S. § 33-1804 by improperly holding a closed executive session primarily focused on reviewing homeowner comments on design guidelines that did not meet the statutory exceptions for closure. The ALJ ordered the HOA to reimburse the petitioner's filing fee and comply with the statute in the future.

Key Issues & Findings

Alleged violation of open meetings requirements regarding closed executive session.

The Respondent HOA held a closed executive session on June 9, 2022, noticed under A.R.S. § 33-1804(A)(1) (legal advice), to discuss approximately 72 homeowner comments on proposed design guideline revisions. The ALJ found that the meeting did not qualify under exceptions (A)(1) or (A)(2) as no legal advice was given and the discussion of most comments did not constitute pending or contemplated litigation.

Orders: Petitioner's petition is affirmed. Respondent must reimburse the Petitioner the $500.00 filing fee and is directed to comply with the requirements of A.R.S. § 33-1804 going forward.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • 33-1804(A)(1)
  • 33-1804(A)(2)
  • 33-1804(B)
  • 33-1804(F)

Analytics Highlights

Topics: HOA, Open Meetings, Executive Session, Legal Advice, Contemplated Litigation, Design Guidelines
Additional Citations:

  • 33-1804
  • 33-1804(A)
  • 33-1804(A)(1)
  • 33-1804(A)(2)
  • 33-1804(F)

Video Overview

Audio Overview

Decision Documents

22F-H2222064-REL Decision – 1003060.pdf

Uploaded 2026-04-24T11:55:20 (149.0 KB)

22F-H2222064-REL Decision – 989940.pdf

Uploaded 2026-04-24T11:55:23 (49.8 KB)

22F-H2222064-REL Decision – 1003060.pdf

Uploaded 2026-01-23T17:49:38 (149.0 KB)

22F-H2222064-REL Decision – 989940.pdf

Uploaded 2026-01-23T17:49:41 (49.8 KB)

This summary concerns the administrative hearing held on September 16, 2022, regarding the matter of Kathy J. Green (Petitioner) versus Cross Creek Ranch Community Association (Respondent), Docket No. 22F-H2222064-REL.

Key Facts and Legal Issue

The dispute centered on whether the Respondent Homeowners Association (HOA) violated Arizona Revised Statute (A.R.S.) § 33-1804 by holding a closed executive session on June 9, 2022. A.R.S. § 33-1804 establishes the state policy that all meetings of a planned community association's board of directors must be conducted openly and that any provisions of the statute must be construed in favor of open meetings. A meeting may only be closed if the portion is strictly limited to specific exceptions, such as legal advice (A.R.S. § 33-1804(A)(1)) or pending or contemplated litigation (A.R.S. § 33-1804(A)(2)).

The meeting was held to discuss 72 comments solicited from homeowners regarding proposed revisions to the Architectural Review Committee (ARC) Design Guidelines.

Key Arguments

Petitioner's Position:

The Petitioner, Kathy Green, alleged that the closed session was improper because it was noticed under A.R.S. § 33-1804(A)(1) (legal advice), yet the Board stipulated that no legal advice was given during the session. Evidence showed the Board President had emailed management prior to the meeting asking, "I don't want this to be an open meeting. Can we classify it under ARC Legal Review and keep it closed?". Petitioner argued that the meeting unlawfully conducted association business, noting that minutes showed a review of owner comments, non-board ARC members were present, and the minutes did not show discussion of legal advice or pending litigation. Furthermore, emails demonstrated that the Board later attempted to retroactively justify the meeting under A.R.S. § 33-1804(A)(2) (contemplated litigation).

Respondent's Position:

The Respondent, Cross Creek Ranch Community Association, argued that the closure was justified under A.R.S. § 33-1804(A)(2) because certain owner comments, including those from the Petitioner and her husband, were perceived as threats of litigation concerning the design guidelines. The Board testified that it met to holistically consider the risk of litigation, gauge membership sentiment, and conduct a cost-benefit analysis regarding the threatened lawsuits.

Final Decision and Outcome

Administrative Law Judge (ALJ) Sondra J. Vanella found that the Petitioner established by a preponderance of the evidence that Respondent violated A.R.S. § 33-1804.

  1. Violation of A.R.S. § 33-1804(A)(1): The stipulation that no legal advice was given established that the meeting did not meet the requirement for closure under the section for which it was noticed.
  2. Violation of A.R.S. § 33-1804(A)(2): The ALJ found the argument for "pending or contemplated litigation" to be "tenuous at best". The discussion primarily involved 72 homeowner comments, and the ALJ concluded that none of the comments could be "reasonably construed as contemplating litigation".
  3. ALJ Finding: The ALJ noted that the Board acknowledged it could have held a separate executive session to discuss the one comment that copied an attorney while holding an open meeting for the majority of the solicited comments. The issue discussed did not fall under the statutory exceptions.

The ALJ affirmed the Petitioner's petition and ordered the Respondent to reimburse the Petitioner the $500.00 filing fee. The Respondent was also directed to comply with the requirements of A.R.S. § 33-1804 moving forward. No civil penalty was found appropriate.

Questions

Question

Can my HOA board hold a closed meeting to discuss homeowner feedback on design guidelines?

Short Answer

No, discussing general homeowner feedback does not qualify for a closed executive session unless it meets specific statutory exceptions like pending litigation.

Detailed Answer

The ALJ ruled that reviewing general comments from homeowners regarding proposed changes to design guidelines is not a valid reason to close a meeting. Even if some comments are critical, the board must discuss them in an open meeting unless they specifically relate to pending or contemplated litigation or legal advice.

Alj Quote

The Administrative Law Judge concludes… that the issue discussed at the June 9, 2022 executive session does not fall under the exceptions listed in A.R.S. §§ 33-1804(A)(1) or (A)(2), and Respondent did not properly consider the issue in an executive session closed to its members.

Legal Basis

A.R.S. § 33-1804

Topic Tags

  • open meetings
  • design guidelines
  • executive session

Question

Does a homeowner saying they 'can and will challenge' a rule in court count as pending litigation?

Short Answer

No, vague statements about potential legal challenges do not necessarily constitute 'contemplated litigation' sufficient to close a meeting.

Detailed Answer

The ALJ found that comments stating changes 'can and will be challenged in court' did not put the Board on notice of imminent lawsuits. Therefore, such comments did not justify closing the meeting under the 'pending or contemplated litigation' exception.

Alj Quote

Further, the Administrative Law Judge concludes that none of the comments can be reasonably construed as contemplating litigation.

Legal Basis

A.R.S. § 33-1804(A)(2)

Topic Tags

  • litigation
  • definitions
  • executive session

Question

Can the board close an entire meeting if they receive just one threat of litigation?

Short Answer

No, the board should only close the portion of the meeting dealing with the specific threat.

Detailed Answer

If an HOA receives many comments and only one contains a potential legal threat (e.g., copying an attorney), the board should hold an executive session for that specific item and discuss the remaining general business in an open meeting.

Alj Quote

As acknowledged by Mr. Chambers, the Board could have held an executive session to discuss only that one comment/letter in which an attorney was copied, and held an open meeting to discuss the other solicited comments.

Legal Basis

A.R.S. § 33-1804(A)(2)

Topic Tags

  • procedure
  • litigation
  • open meetings

Question

Can the HOA claim 'legal advice' as a reason to close a meeting if no attorney is present?

Short Answer

No, the 'legal advice' exception generally requires actual advice being given or discussed from an attorney.

Detailed Answer

The board cannot use the 'legal advice' exception to close a meeting if they are simply preparing questions for an attorney or reviewing documents before sending them to counsel. In this case, the attorney had not yet reviewed the documents, so no legal advice could be discussed.

Alj Quote

Prior to the June 9, 2022 executive session, an attorney had not yet reviewed the proposed revisions to the Guidelines and therefore, did not provide feedback for discussion at that meeting.

Legal Basis

A.R.S. § 33-1804(A)(1)

Topic Tags

  • legal advice
  • attorney
  • executive session

Question

How should HOA board members and managers interpret open meeting laws?

Short Answer

They must interpret the laws in favor of open meetings.

Detailed Answer

Arizona statute explicitly states that the policy of the state is to conduct meetings openly. Any ambiguity in the law should be construed by board members and managers to support openness rather than secrecy.

Alj Quote

Toward this end, any person or entity that is charged with the interpretation of these provisions, including members of the board of directors and any community manager, shall take into account this declaration of policy and shall construe any provision of this section in favor of open meetings.

Legal Basis

A.R.S. § 33-1804(F)

Topic Tags

  • statutory interpretation
  • policy
  • open meetings

Question

Who has the burden of proof in an administrative hearing against an HOA?

Short Answer

The petitioner (the homeowner filing the complaint) has the burden of proof.

Detailed Answer

The homeowner must prove by a 'preponderance of the evidence' that the HOA violated the statute. This means they must show it is more probable than not that the violation occurred.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1804.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • hearing procedure
  • evidence

Question

Can I get my filing fee back if I win my case against the HOA?

Short Answer

Yes, the ALJ has the authority to order the HOA to reimburse the filing fee.

Detailed Answer

If the homeowner prevails in showing a violation occurred, the judge may order the association to pay back the cost of filing the petition.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner the $500.00 filing fee.

Legal Basis

Order

Topic Tags

  • remedies
  • fees
  • penalties

Question

Will the HOA always be fined if they violate open meeting laws?

Short Answer

Not necessarily; the judge has discretion on whether to impose a civil penalty.

Detailed Answer

Even if a violation is found, the judge may decide not to issue a civil penalty based on the specific facts of the case.

Alj Quote

Based on the facts presented, the Administrative Law Judge finds no civil penalty is appropriate in this matter.

Legal Basis

Findings of Fact

Topic Tags

  • penalties
  • enforcement
  • fines

Case

Docket No
22F-H2222064-REL
Case Title
Kathy J. Green v. Cross Creek Ranch Community Association
Decision Date
2022-09-29
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Questions

Question

Can my HOA board hold a closed meeting to discuss homeowner feedback on design guidelines?

Short Answer

No, discussing general homeowner feedback does not qualify for a closed executive session unless it meets specific statutory exceptions like pending litigation.

Detailed Answer

The ALJ ruled that reviewing general comments from homeowners regarding proposed changes to design guidelines is not a valid reason to close a meeting. Even if some comments are critical, the board must discuss them in an open meeting unless they specifically relate to pending or contemplated litigation or legal advice.

Alj Quote

The Administrative Law Judge concludes… that the issue discussed at the June 9, 2022 executive session does not fall under the exceptions listed in A.R.S. §§ 33-1804(A)(1) or (A)(2), and Respondent did not properly consider the issue in an executive session closed to its members.

Legal Basis

A.R.S. § 33-1804

Topic Tags

  • open meetings
  • design guidelines
  • executive session

Question

Does a homeowner saying they 'can and will challenge' a rule in court count as pending litigation?

Short Answer

No, vague statements about potential legal challenges do not necessarily constitute 'contemplated litigation' sufficient to close a meeting.

Detailed Answer

The ALJ found that comments stating changes 'can and will be challenged in court' did not put the Board on notice of imminent lawsuits. Therefore, such comments did not justify closing the meeting under the 'pending or contemplated litigation' exception.

Alj Quote

Further, the Administrative Law Judge concludes that none of the comments can be reasonably construed as contemplating litigation.

Legal Basis

A.R.S. § 33-1804(A)(2)

Topic Tags

  • litigation
  • definitions
  • executive session

Question

Can the board close an entire meeting if they receive just one threat of litigation?

Short Answer

No, the board should only close the portion of the meeting dealing with the specific threat.

Detailed Answer

If an HOA receives many comments and only one contains a potential legal threat (e.g., copying an attorney), the board should hold an executive session for that specific item and discuss the remaining general business in an open meeting.

Alj Quote

As acknowledged by Mr. Chambers, the Board could have held an executive session to discuss only that one comment/letter in which an attorney was copied, and held an open meeting to discuss the other solicited comments.

Legal Basis

A.R.S. § 33-1804(A)(2)

Topic Tags

  • procedure
  • litigation
  • open meetings

Question

Can the HOA claim 'legal advice' as a reason to close a meeting if no attorney is present?

Short Answer

No, the 'legal advice' exception generally requires actual advice being given or discussed from an attorney.

Detailed Answer

The board cannot use the 'legal advice' exception to close a meeting if they are simply preparing questions for an attorney or reviewing documents before sending them to counsel. In this case, the attorney had not yet reviewed the documents, so no legal advice could be discussed.

Alj Quote

Prior to the June 9, 2022 executive session, an attorney had not yet reviewed the proposed revisions to the Guidelines and therefore, did not provide feedback for discussion at that meeting.

Legal Basis

A.R.S. § 33-1804(A)(1)

Topic Tags

  • legal advice
  • attorney
  • executive session

Question

How should HOA board members and managers interpret open meeting laws?

Short Answer

They must interpret the laws in favor of open meetings.

Detailed Answer

Arizona statute explicitly states that the policy of the state is to conduct meetings openly. Any ambiguity in the law should be construed by board members and managers to support openness rather than secrecy.

Alj Quote

Toward this end, any person or entity that is charged with the interpretation of these provisions, including members of the board of directors and any community manager, shall take into account this declaration of policy and shall construe any provision of this section in favor of open meetings.

Legal Basis

A.R.S. § 33-1804(F)

Topic Tags

  • statutory interpretation
  • policy
  • open meetings

Question

Who has the burden of proof in an administrative hearing against an HOA?

Short Answer

The petitioner (the homeowner filing the complaint) has the burden of proof.

Detailed Answer

The homeowner must prove by a 'preponderance of the evidence' that the HOA violated the statute. This means they must show it is more probable than not that the violation occurred.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1804.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • hearing procedure
  • evidence

Question

Can I get my filing fee back if I win my case against the HOA?

Short Answer

Yes, the ALJ has the authority to order the HOA to reimburse the filing fee.

Detailed Answer

If the homeowner prevails in showing a violation occurred, the judge may order the association to pay back the cost of filing the petition.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner the $500.00 filing fee.

Legal Basis

Order

Topic Tags

  • remedies
  • fees
  • penalties

Question

Will the HOA always be fined if they violate open meeting laws?

Short Answer

Not necessarily; the judge has discretion on whether to impose a civil penalty.

Detailed Answer

Even if a violation is found, the judge may decide not to issue a civil penalty based on the specific facts of the case.

Alj Quote

Based on the facts presented, the Administrative Law Judge finds no civil penalty is appropriate in this matter.

Legal Basis

Findings of Fact

Topic Tags

  • penalties
  • enforcement
  • fines

Case

Docket No
22F-H2222064-REL
Case Title
Kathy J. Green v. Cross Creek Ranch Community Association
Decision Date
2022-09-29
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Kathy J. Green (petitioner)
    Cross Creek Ranch Owner
    Also referred to as Dr. Green, Colonel (retired),
  • Peter Calogero (witness)
    Spouse of Petitioner,

Respondent Side

  • Cross Creek Ranch Community Association (respondent)
  • Nick Eicher (HOA attorney)
    Cross Creek Ranch Community Association,
    Also referred to as Nick Iker
  • Greg Chambers (board president)
    Cross Creek Ranch Board
    Also appeared as a witness,
  • Charles Olden (HOA attorney)
    Carpenter Hazelwood
  • Steve Germaine (board member/ARC chair)
    Cross Creek Ranch Board/ARC,
    Subpoenaed individual,,
  • John Kinich (board member)
    Cross Creek Ranch Board
    Also referred to as John Halenich
  • Lynn Grigg (ARC member)
    Cross Creek Ranch ARC,
  • Dan Donahghue (board member)
    Cross Creek Ranch Board,
  • Lisa Henson (board member)
    Cross Creek Ranch Board
  • Laura Malone (property manager)
    Community association manager,,
  • Edith I. Rudder (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP,
    Recipient of final order
  • Edward D. O'Brien (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP,
    Recipient of final order

Neutral Parties

  • Sondra J. Vanella (ALJ)
    OAH
    Presided over the matter,
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate (ADRE),

Other Participants

  • Brian (regional manager)
    Homeco/Property Management
    Provided guidance to Laura Malone
  • Miranda Alvarez (legal secretary)
    Carpenter, Hazlewood, Delgado & Bolen LLP

Ronald Borruso v. Sunland Village East Association

Posted on by

Case Summary

Case ID 21F-H2121062-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-09-21
Administrative Law Judge Thomas Shedden
Outcome 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.
Filing Fees Refunded $1,500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Ronald Borruso Counsel —
Respondent Sunland Village East Association Counsel Nicholas Nogami, Esq. and Nikolas Eicher, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1804

Outcome Summary

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)

This summary details the Administrative Law Judge (ALJ) Decision in the case of Ronald Borruso, Petitioner, vs. Sunland Village East Association, Respondent (No. 21F-H2121062-REL), heard on September 3, 2021. The Petitioner, Ronald Borruso, alleged that the Association violated its Bylaws and specific provisions of ARIZ. REV. STAT. section 33-1804.

Key Facts and Legal Standard

The Department of Real Estate had jurisdiction over the matter. The Petitioner bore the burden of proving the alleged violations occurred by a preponderance of the evidence. Borruso refined his allegations to two main issues, both centering on the violation of association meeting requirements under ARIZ. REV. STAT. § 33-1804(A) and (C).

Main Issues and Arguments

Issue 1: Member Participation at the May 27, 2021 Special Meeting

  • Petitioner's Claim: Borruso alleged that during a special meeting concerning a recall petition, the Board denied members the right to speak at an appropriate time during proceedings, violating § 33-1804(A). He argued the meeting was improperly divided into a "closed" session where members could not offer substantive comments, followed by an "Open Session Q & A" after adjournment.
  • Association's Argument: The Association maintained there was only one meeting, and it was not a violation to restrict members’ comments until after the Board provided its statements. They argued they used the term "closed" inartfully, noting that members were allowed to attend the entire 3-hour meeting, and ample opportunity was provided for comments during the Q & A session (lasting about 90 minutes).
  • Legal Point: ARIZ. REV. STAT. section 33-1804(A) permits members to attend and speak at an appropriate time during deliberations, and mandates they speak once after the Board discusses an agenda item but before formal action. The ALJ noted that legally, a "closed" meeting refers to an executive session, which the Board did not conduct.

Issue 2: Unnoticed Meeting to Approve Operations Manager Qualifications

  • Petitioner's Claim: Borruso alleged the Board held un-noticed meetings to write and approve job qualifications for an Operations Manager, violating sections 33-1804(A) and (C). His primary evidence was a former Board President, Ms. Haynie, confirming in a May 6, 2021 meeting that the Board had written and approved the job description.
  • Association's Argument: Current Board members testified credibly that Ms. Haynie was wrong and that the Board had never met or voted on the job description. The description posted was similar to a previous one, and Ms. Haynie had allegedly prepared and posted it without Board approval.

Outcome and Final Decision

The Administrative Law Judge concluded that Mr. Borruso failed to meet the required standard of proof (preponderance of the evidence) on both issues.

  1. Regarding the May 27th Meeting: The Petitioner did not prove a violation of § 33-1804(A). Although the Board was not precise in its terminology, members were allowed to attend the entire meeting, and the evidence showed it was a single meeting where members spoke after the Board's presentation.
  2. Regarding the Job Qualifications: The Petitioner failed to prove that an un-noticed meeting occurred, as the credible testimony indicated that the former President had been mistaken about the Board’s approval. Therefore, there was no violation of sections 33-1804(A) and (C).

The petition was dismissed.

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
  • Nikolas Eicher (respondent attorney)
    Carpenter Hazlewood Delgado & Bolen, LLP
  • Mark Thurn (board member)
    Sunland Village East Association
    Current Board President, testified for Respondent
  • Marvin Fretwell (board member)
    Sunland Village East Association
    Testified for Respondent
  • Joyce Haynie (board member)
    Sunland Village East Association
    Former President, subject of recall petition
  • Kim Shallue (board member)
    Sunland Village East Association
    Presided over May 27th meeting

Neutral Parties

  • Thomas Shedden (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of decision transmission
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of decision transmission
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Recipient of decision transmission

Clifford (Norm) S. Burnes v. Saguaro Crest Homeowners Association,

Posted on by

Case Summary

Case ID 21F-H2120002-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2021-08-09
Administrative Law Judge Jenna Clark
Outcome partial
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Clifford Burnes and Maria Burnes Counsel Cynthia F. Burnes, Esq.
Respondent Saguaro Crest Homeowners Association, Inc. Counsel John Crotty, Esq.

Alleged Violations

CC&Rs Section 5
Architectural Design Guidelines Section 4.0
ARIZ. REV. STAT. § 33-1804(A), (D), and (E)
ARIZ. REV. STAT. § 33-1805

Outcome Summary

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
Additional Citations:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199
  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 33-1804(A)
  • ARIZ. REV. STAT. § 33-1804(D)
  • ARIZ. REV. STAT. § 33-1804(E)
  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 10-3821
  • CC&Rs Section 5
  • Architectural Design Guidelines Section 4.0

Video Overview

Audio Overview

Decision Documents

21F-H2120002-REL Decision – 902726.pdf

Uploaded 2026-04-24T11:28:59 (239.9 KB)

21F-H2120002-REL Decision – 866263.pdf

Uploaded 2026-04-24T11:29:03 (268.5 KB)

Briefing Document: Burnes v. Saguaro Crest Homeowners Association, Final Decision

Executive Summary

This document synthesizes the Final Administrative Law Judge Decision in the case of Clifford and Maria Burnes (“Petitioners”) versus the Saguaro Crest Homeowners Association (“Respondent”), case number 21F-H2120002-REL-RHG. The dispute centered on a four-issue petition alleging violations by the Association related to new construction on a neighboring property (Lot 7), an unnoticed Board meeting, and the fulfillment of a records request.

Following an initial hearing and a subsequent rehearing, the Administrative Law Judge (ALJ) largely affirmed the original decision. The Petitioners failed to meet their burden of proof on three of the four issues, with the judge finding no violations by the Association regarding architectural controls, the waiver of a construction deposit, or the conduct of a Board meeting.

However, the Petitioners successfully proved that the Association violated Arizona Revised Statute § 33-1805 by failing to timely and completely fulfill a comprehensive records request. The final order requires the Association to reimburse the Petitioners for a portion of their filing fee ($500), comply with the records statute moving forward, and provide the specific missing documents (email attachments) from the original request. The rehearing was granted on the basis of “newly discovered evidence,” but the Petitioners conceded during the proceeding that they possessed no new evidence, leading the ALJ to rely solely on the record from the first hearing.

I. Background and Procedural History

The case involves a dispute between property owners Clifford and Maria Burnes and their homeowners’ association, Saguaro Crest, located in Tucson, Arizona. The Association is governed by Covenants, Conditions, and Restrictions (CC&Rs) recorded in 2006 and Architectural Design Guidelines adopted in 2018.

Procedural Timeline

July 17, 2020

Petitioners file a 4-issue petition with the Arizona Department of Real Estate.

August 11, 2020

Respondent (HOA) denies all claims in its answer.

Dec 11, 2020 & Mar 1-2, 2021

An evidentiary hearing is held before the Office of Administrative Hearings (OAH).

March 22, 2021

The Administrative Law Judge (ALJ) issues the initial decision.

April 28, 2021

Petitioners file a dispute rehearing request, alleging newly discovered evidence.

May 21, 2021

The Commissioner of the Department of Real Estate grants the rehearing request.

July 20, 2021

The rehearing is held. Petitioners concede they have no “new” evidence.

August 09, 2021

The Final Administrative Law Judge Decision is issued, affirming the initial ruling.

Key Parties

Name / Entity

Clifford & Maria Burnes

Petitioners; owners of Lot 6.

Cynthia F. Burnes, Esq.

Counsel for Petitioners.

Saguaro Crest HOA, Inc.

Respondent.

John Crotty, Esq.

Counsel for Respondent.

Norm Burnes

Petitioner; appointed to the Architectural Review Committee (ARC) in 2017.

Raul & Ramona Martinez

Owners of Lot 7, the property under construction.

Jenna Clark

Administrative Law Judge (ALJ).

II. Analysis of Allegations and Findings

The petition presented four distinct issues for adjudication. The Petitioners bore the burden of proving each violation by a preponderance of the evidence.

Issue 1: Alleged Violation of CC&Rs Section 5 (Architectural Control)

• Petitioners’ Allegation: The Association improperly allowed construction on Lot 7 to proceed without required documents being submitted to the Architectural Review Committee (ARC) for approval.

• Factual Record:

◦ The ARC, which included Petitioner Norm Burnes, unanimously approved construction plans for Lot 7 on January 3, 2018.

◦ Construction began sometime in 2018. Pima County approved the plans on May 4, 2018.

◦ On April 14, 2020, Petitioner Burnes sent a formal letter of concern to the Board, stating the placement of the home on Lot 7 was not per the approved plan and had destroyed their view and privacy. The letter included the following statement:

• Conclusion of Law: No violation found. The ALJ determined that while the construction on Lot 7 was not per the plans the ARC approved on January 3, 2018, no subsequent or modified plans were ever submitted to the ARC for review. The decision states, “The ARC cannot approve or deny proposed plans unless they are submitted for review.” Furthermore, the record shows the construction complies with the local government’s building authority.

Issue 2: Alleged Violation of Design Guidelines Section 4.0 (Construction Deposit)

• Petitioners’ Allegation: The Association allowed construction on Lot 7 without collecting the required $5,000.00 Construction Compliance Deposit.

• Factual Record:

◦ On May 3, 2020, the Board of Directors decided to honor a Construction Compliance Deposit waiver that had been previously granted to the Martinez family.

◦ This discretionary waiver was reportedly granted during an economic downturn to incentivize property purchases.

◦ Critically, the Association “does not possess a corporate record that any such Construction Compliance Deposit Waiver was previously granted to the Martinez family.”

• Conclusion of Law: No violation found. The ALJ concluded it was “clear that Lot 7 was granted a construction compliance deposit waiver.” The lack of a documented record was noted, but the inquiry was deemed moot as it was not a noticed issue in the petition.

Issue 3: Alleged Violation of A.R.S. § 33-1804 (Unnoticed Meeting)

• Petitioners’ Allegation: The Board of Directors conducted an unnoticed meeting on or about May 20, 2020, to consider matters relevant to Petitioner Norm Burnes.

• Factual Record:

◦ On April 18, 2020, Petitioner requested an urgent meeting with the Board, which was held the next day.

◦ On May 20, 2020, the Board acted with unanimous consent (obtained via individual signatures) to restrict Petitioner Burnes’s participation as an ARC member “regarding all issued related to the construction of Lot 7.”

◦ The Board’s notes state: “[T]he Board of Directors hereby unanimously agree that [Petitioner] be removed as an ARC Member for all ARC related matters concerning Lot 7.”

• Conclusion of Law: No violation found. The judge ruled that the Board’s failure to notice the April 19 meeting was excused as an exception because the Petitioner himself had requested it on an urgent basis. Regarding the May 20 action, the record shows Mr. Burnes was not removed from the ARC entirely, but only recused from matters concerning the Lot 7 dispute in which he had a direct conflict of interest.

Issue 4: Alleged Violation of A.R.S. § 33-1805 (Records Request)

• Petitioners’ Allegation: The Association failed to properly fulfill a records request.

• Factual Record:

◦ On June 4, 2020, Petitioners submitted a comprehensive, 17-point records request and demanded fulfillment within the statutory 10-day period.

◦ On June 16, 2020, the Association made 342 pages of documents available for in-person review but prohibited Petitioners from using their own scanning equipment.

◦ The statutory deadline for compliance was June 18, 2020.

◦ On June 24, 2020, after Petitioners paid a $51.30 fee, the Association provided copies of the documents.

◦ Later that day, Petitioners notified the Association that the document package was incomplete, as “attachments for some emails are not included.”

• Conclusion of Law: Violation established. The ALJ found that the Association failed to comply with the statute. The documents were made available for review within the 10-day window, but the copies were not provided until June 24, after the deadline. More importantly, the copies provided were incomplete. The judge rejected the Association’s argument that a clarification from the Petitioner reset the statutory clock.

III. Final Order and Directives

The Final Administrative Law Judge Decision, issued after the rehearing, affirmed the conclusions of the initial March 22, 2021 decision.

• Petition Status: The petition was granted in part (on Issue 4) and denied in part (on Issues 1, 2, and 3).

• Financial Reimbursement: The Respondent (Saguaro Crest HOA) is ordered to reimburse the Petitioners for one-quarter of their filing fee, amounting to $500.00.

• Statutory Compliance: The Respondent is ordered to henceforth comply with the requirements of A.R.S. § 33-1805 regarding records requests.

• Document Production: The Respondent is ordered to 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: Burnes v. Saguaro Crest Homeowners Association, Inc.

This study guide provides a detailed review of the Final Administrative Law Judge Decision in the case of Clifford and Maria Burnes versus the Saguaro Crest Homeowners Association, Inc. (No. 21F-H2120002-REL-RHG). The guide includes a short-answer quiz with an answer key, a set of essay questions for deeper analysis, and a comprehensive glossary of key terms used in the legal proceedings.

Short-Answer Quiz

Instructions: Answer the following questions in 2-3 sentences based on the information provided in the case document.

1. Who are the Petitioners and the Respondent in this case, and what is their fundamental relationship?

2. List the four distinct issues the Petitioners alleged against the Respondent in their initial petition.

3. On what grounds did the Petitioners request and receive a rehearing after the initial decision was issued on March 22, 2021?

4. What was the outcome of the Petitioners’ attempt to present new witnesses and exhibits during the rehearing on July 20, 2021?

5. Why did the Administrative Law Judge conclude that the Respondent had not violated Section 5 of the CC&Rs regarding the construction on Lot 7?

6. Explain the controversy surrounding the $5,000 Construction Compliance Deposit and the court’s ultimate finding on the matter.

7. What action did the Board of Directors take against Petitioner Norm Burnes on May 20, 2020, and why was this action not considered a violation of A.R.S. § 33-1804?

8. Which of the four allegations was ultimately successful for the Petitioners, and what specific failures by the Respondent led to this finding?

9. What were the four key orders issued by the Administrative Law Judge in the Final Order?

10. What was Petitioner Norm Burnes’s official role within the Saguaro Crest community, and how did this position create a conflict of interest in the dispute?

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Quiz Answer Key

1. The Petitioners are Clifford and Maria Burnes, who are property owners in the Saguaro Crest subdivision and members of the homeowners’ association. The Respondent is the Saguaro Crest Homeowners Association, Inc. (HOA), which is the governing body for the subdivision.

2. The four issues were: (1) The HOA allowed construction on Lot 7 without required ARC document submission in violation of CC&Rs Section 5; (2) The HOA allowed construction without a required Construction Compliance Deposit; (3) The Board conducted an unnoticed meeting in violation of A.R.S. § 33-1804; (4) The HOA failed to fulfill a records request in violation of A.R.S. § 33-1805.

3. The Petitioners requested a rehearing on the grounds of having “Newly discovered material evidence that could not with reasonable diligence have been discovered and produced at the original hearing.” They also alleged that the original decision was “arbitrary, capricious, or an abuse of discretion.”

4. At the rehearing, the Petitioners conceded they possessed no “newly discovered” evidence, but rather evidence they had strategically chosen not to present previously. Because they did not provide a satisfactory offer of proof for new evidence, they were precluded from recalling witnesses or offering additional exhibits.

5. The Judge found that while the construction on Lot 7 was not per the plans approved by the ARC on January 3, 2018, no additional plans had been submitted for the ARC’s consideration. The Judge reasoned that the ARC cannot approve or deny plans that are not submitted, and the build complied with the local government’s building authority.

6. The Architectural Design Guidelines required a $5,000 deposit, but the owners of Lot 7 had been granted a waiver. Although the HOA did not possess a corporate record of the waiver, the Board voted to honor it. The court found no violation because the waiver had been granted, and the lack of documentation was not the specific issue being litigated.

7. On May 20, 2020, the Board held an unnoticed meeting and, via unanimous consent, restricted Petitioner Burnes’s participation as an ARC member for all matters related to Lot 7. This was not a violation because the failure to notice was excused as an exception, and the Board only removed him from matters concerning Lot 7, not from the ARC entirely.

8. Issue #4, the records request violation, was successful for the Petitioners. The Respondent failed to provide copies of the requested documents within the statutory 10-day deadline, providing them on June 24, 2020, when the deadline was June 18, 2020. Furthermore, the documents provided were incomplete, as they were missing email attachments.

9. The Final Order affirmed the previous decision, ordered the Respondent to reimburse the Petitioners for 1/4 of their filing fee ($500.00), ordered the Respondent to comply with A.R.S. § 33-1805 going forward, and ordered the Respondent to provide the missing email attachments within 10 business days.

10. Petitioner Norm Burnes was a member of the Association’s Architectural Review Committee (ARC). This created a conflict of interest because he was part of the committee that initially approved the Lot 7 construction plans, but he later raised formal complaints against that same construction project due to its impact on his own property (Lot 6).

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Essay Questions

Instructions: The following questions are designed for a more in-depth analysis of the case. No answers are provided.

1. Analyze the concept of “burden of proof” by a “preponderance of the evidence” as it applies to this case. How did the Petitioners succeed in meeting this burden for Issue #4 but fail for the other three issues?

2. Discuss the powers and limitations of a Homeowners’ Association Board and its Architectural Review Committee as illustrated in this case, specifically concerning construction approval, enforcement authority, and the management of member conflicts of interest.

3. The Petitioners’ request for a rehearing was based on “newly discovered material evidence.” Explain why this request ultimately failed to change the outcome and discuss the strategic decisions made by the Petitioners regarding the presentation of evidence.

4. Examine the conflict between a homeowner’s desire for privacy and unobstructed views (as expressed by the Petitioners) and the rights of a neighboring property owner to develop their land. How did the community’s governing documents and the final legal decision address this conflict?

5. Trace the timeline of the records request dispute (Issue #4). What were the specific actions and inactions by the Respondent that led to a finding of a statutory violation, and what does this illustrate about an HOA’s administrative and statutory responsibilities to its members?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions. In this case, the ALJ was Jenna Clark.

Architectural Review Committee (ARC)

A committee charged by an HOA’s CC&Rs with implementing architectural guidelines to maintain aesthetic standards and preserve property values. Petitioner Norm Burnes was a member of this committee.

Arizona Department of Real Estate (Department)

The state agency authorized to receive and decide petitions for hearings from members of homeowners’ associations in Arizona.

Arizona Revised Statute (ARIZ. REV. STAT. or A.R.S.)

The codified laws of the State of Arizona. Specific statutes cited include § 33-1804 (regarding open meetings) and § 33-1805 (regarding association records).

Burden of Proof

The obligation on a party in a legal case to prove their allegations. In this proceeding, the Petitioners bore the burden of proving their claims by a preponderance of the evidence.

Covenants, Conditions, and Restrictions (CC&Rs)

The governing legal documents that set up the rules for a planned community. They form an enforceable contract between the HOA and each property owner.

Homeowners’ Association (HOA)

The organization that makes and enforces rules for a subdivision or planned community. In this case, the Saguaro Crest Homeowners Association, Inc. is the Respondent.

Offer of Proof

A presentation of evidence made to a judge to demonstrate the substance and relevance of evidence that a party seeks to introduce. The Petitioners’ offer of proof regarding new evidence was found to be unsatisfactory.

Office of Administrative Hearings (OAH)

An independent state agency that conducts evidentiary hearings for other state agencies. This matter was referred to the OAH by the Department of Real Estate.

Petitioners

The party that initiates a legal action or petition. In this case, Clifford and Maria Burnes are the Petitioners.

Preponderance of the Evidence

The standard of proof in most civil cases. It means that the evidence presented is sufficient to convince 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 Saguaro Crest Homeowners Association, Inc. is the Respondent.

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21F-H2120002-REL-RHG

1 source

The provided text is a Final Administrative Law Judge Decision from the Office of Administrative Hearings in Arizona, detailing a dispute between petitioners Clifford and Maria Burnes and the Saguaro Crest Homeowners Association, Inc. The case involved four specific allegations of violations by the Association, including allowing unapproved construction on Lot 7, failing to collect a required construction deposit, conducting an unnoticed meeting, and failing to fulfill a records request. This document affirms an earlier decision, concluding that the Petitioners failed to sustain the burden of proof for the first three issues but succeeded on the fourth issue regarding the violation of Arizona law concerning records requests. Consequently, the Association was ordered to comply with the relevant statute, provide missing email attachments, and reimburse a portion of the Petitioners’ filing fee.

Case Participants

Petitioner Side

  • Clifford (Norm) S. Burnes (petitioner)
    Saguaro Crest subdivision property owner; ARC Member
  • Maria Burnes (petitioner)
    Saguaro Crest subdivision property owner
  • Jacob A. Kubert (attorney)
  • Cynthia F. Burnes (attorney)
  • Debora Brown (witness)

Respondent Side

  • John Crotty (attorney)
    Law Offices of Farley, Choate & Wood
  • Kelsea Dressen (attorney)
    Law Offices of Farley, Choate & Wood
  • Esmerelda Martinez (board president; witness)
    Saguaro Crest HOA Board of Directors
    President of the Board
  • Dave Madill (board member)
    Saguaro Crest HOA Board of Directors
    Vice President of the Board
  • Julie Stevens (board member)
    Saguaro Crest HOA Board of Directors
    Treasurer of the Board
  • Raul Martinez (property owner)
    Owner of Lot 7 and 13
    Construction on his property (Lot 7) is subject of the dispute
  • Ramona Martinez (property owner)
    Owner of Lot 7

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
  • Sadot Negreté (observer)
  • Judy Lowe (ADRE Commissioner)
    Arizona Department of Real Estate
  • Dan Gardener (ADRE contact)
    Arizona Department of Real Estate
    Also listed as DGardner
  • c. serrano (administrative staff)
    Office of Administrative Hearings

Other Participants

  • Jamie Argueta (ARC member; property seller)
    Saguaro Crest HOA Architectural Review Committee
    Sold Lots 7 and 13 to Martinez family
  • Joseph Martinez (ARC member)
    Saguaro Crest HOA Architectural Review Committee
  • Jesus Carranza (substitute ARC member)
    Saguaro Crest HOA Architectural Review Committee
    Substitute for Petitioner during Lot 7 discussion

Debra K Morin v. Solera Chandler Homeowners’ Association, Inc.

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Case Summary

Case ID 21F-H2120001-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-03-17
Administrative Law Judge Tammy L. Eigenheer
Outcome partial
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Debra K. Morin Counsel —
Respondent Solera Chandler Homeowners' Association, Inc. Counsel Lydia A. Peirce Linsmeier

Alleged Violations

A.R.S. 33-1804

Outcome Summary

The petition was affirmed in part (Complaint #1) and denied in part (Complaint #2). The Respondent HOA was found to have improperly conducted non-privileged business via email/unanimous written consent in violation of A.R.S. § 33-1804. The HOA was ordered to reimburse the $500 filing fee and comply with the statute, but no civil penalty was imposed.

Why this result: Petitioner failed to establish by a preponderance of the evidence the alleged violation concerning the improper use of emergency executive sessions (Complaint #2).

Key Issues & Findings

Non-privileged Association Business Conducted in Closed Session

The HOA improperly conducted association business, which should have been open to members, through unanimous written consent solicited via individual emails during the COVID-19 shutdown, violating the open meeting requirements of A.R.S. § 33-1804.

Orders: Respondent was ordered to comply with the requirements of A.R.S. § 33-1804 going forward and to reimburse Petitioner her $500.00 filing fee for the issue on which she prevailed.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. 33-1804
  • A.R.S. 10-3821

Analytics Highlights

Topics: Open Meetings, HOA Governance, Unanimous Written Consent, COVID-19, Executive Session
Additional Citations:

  • A.R.S. 33-1804
  • A.R.S. 10-3821
  • A.R.S. 32-2199 et seq.
  • A.A.C. R2-19-119

Video Overview

Audio Overview

Decision Documents

21F-H2120001-REL Decision – 864802.pdf

Uploaded 2026-04-24T11:28:46 (101.9 KB)

21F-H2120001-REL Decision – 838004.pdf

Uploaded 2026-04-24T11:28:50 (125.4 KB)

21F-H2120001-REL Decision – 838004.pdf

Uploaded 2026-01-23T17:34:04 (125.4 KB)

Administrative Law Decision Briefing: Morin vs. Solera Chandler Homeowners’ Association

Executive Summary

This briefing synthesizes the findings and rulings from an administrative law case involving a homeowner, Debra K. Morin, and the Solera Chandler Homeowners’ Association, Inc. (HOA). The central issue was whether the HOA Board of Directors violated Arizona’s open meeting law (A.R.S. § 33-1804) by conducting association business and making decisions without open meetings accessible to its members.

The Administrative Law Judge (ALJ) ultimately ruled in favor of the petitioner on her primary complaint. The investigation and subsequent hearings revealed that the HOA Board, citing the challenges of the COVID-19 pandemic, utilized a process of “unanimous written consent” to approve numerous actions. This process, facilitated through individual emails to board members, was found to be an improper substitute for the open meetings required by law. The ALJ concluded that the specific transparency requirements for homeowners’ associations in A.R.S. § 33-1804 supersede the more general provisions for non-profit corporations in A.R.S. § 10-3821, which the HOA had cited as justification.

While the violation was established, no civil penalty was assessed due to the “unprecedented global pandemic.” The HOA was ordered to comply with the open meeting law moving forward and to reimburse the petitioner’s $500 filing fee. A second complaint from the petitioner, alleging the improper use of emergency executive sessions, was not proven and was therefore denied. A rehearing clarified the precise method of the violation—email voting rather than conference calls—but did not alter the final judgment.

Case Background and Allegations

This matter was adjudicated by the Arizona Office of Administrative Hearings following a petition filed on July 10, 2020. The case centered on the actions of the Solera Chandler HOA’s Board of Directors between March and August 2020.

• Petitioner: Debra K. Morin

• Respondent: Solera Chandler Homeowners’ Association, Inc.

• Case Number: 21F-H2120001-REL

• Key Dates:

◦ Initial Hearing: October 29, 2020

◦ Initial Decision: November 18, 2020

◦ Rehearing: February 25, 2021

◦ Final Decision After Rehearing: March 17, 2021

Petitioner’s Formal Complaints

After being ordered to clarify her initial filing, the petitioner proceeded with two specific alleged violations of A.R.S. § 33-1804:

1. Complaint #1: Non-Privileged Business in Closed Sessions: The petitioner alleged that the HOA Board conducted non-privileged association business in closed sessions by using unanimous written consent. This practice circumvented statutory requirements for providing members with agendas, giving 48-hour notice, and allowing them an opportunity to speak on key issues before the Board took action.

2. Complaint #2: Improper Emergency Executive Sessions: The petitioner alleged that the HOA Board conducted privileged business under the guise of “emergency executive sessions.” This was done without properly identifying the legal exception to the open meeting law, providing an agenda or 48-hour notice, or submitting minutes at the next board meeting that stated the reason for the emergency.

Key Evidence and Factual Findings

The evidence presented centered on the HOA’s governance practices during the initial months of the COVID-19 pandemic.

Respondent’s Justification

The HOA’s defense rested on two main arguments:

• The COVID-19 pandemic made it impossible for the Board to meet in person, necessitating alternative methods to conduct business while protecting the health of directors and members.

• The use of unanimous written consents was authorized under A.R.S. § 10-3821, a statute that permits non-profit corporations to take action without a formal meeting if all directors consent in writing. The HOA acknowledged it had not used this method before the pandemic and did not intend to continue its use.

Unanimous Written Consents

At an open Board of Directors meeting on August 5, 2020, the Board formally ratified a series of actions taken via unanimous written consent during the “Covid 19 Shutdown.” A rehearing clarified the precise mechanism: a community management company would email each board member individually to solicit a “yes” or “no” vote on a proposal. If all votes were “yes,” the Board President would sign the written consent on behalf of the Board.

The actions taken through this process included:

Action Taken by Unanimous Written Consent

March 30, 2020

Approve repair and replacement of the sidewalk and community center entrance.

March 30, 2020

Approve repair and replacement of cool decking surrounding both pools.

April 30, 2020

Approve Kirk Sandquist as a member of the Architectural Review Committee.

April 30, 2020

Approve Tom Dusbabek as a member of the Architectural Review Committee.

May 5, 2020

Approve the Gilbert Road retention basin project, related irrigation replacement, and the addition of 420 tons of granite.

May 8, 2020

Approve replacement of a Carrier 6-ton heat pump.

May 8, 2020

Approve replacement of two Carrier 5-ton heat pumps.

May 27, 2020

Approve hiring Ken Eller to draft architectural drawings.

June 4, 2020

Approve a change to the Design Guidelines at the request of the Architectural Review Committee.

July 1, 2020

Approve the 2020 summer hardwood pruning and removal of trees.

Executive Sessions

The Board held numerous executive (closed) sessions during this period, including on March 13, March 16, March 19, March 24, April 6, April 10, May 4, May 15, May 27, June 24, and August 5, 2020. An “emergency executive session” was held on May 12, 2020. The agendas for these meetings cited specific legal exceptions under A.R.S. § 33-1804(A) as justification for the closure.

Legal Analysis and Rulings

The Administrative Law Judge’s decision hinged on the interpretation and primacy of two competing Arizona statutes.

The Core Statutory Conflict

• A.R.S. § 33-1804 (HOA Open Meeting Law): This statute establishes a strong state policy that all HOA board and member meetings “be conducted openly.” It mandates that members receive at least 48-hours’ notice, be provided with agendas, and be permitted to “attend and speak at an appropriate time.” The statute explicitly directs that any interpretation of its provisions must be construed “in favor of open meetings.”

• A.R.S. § 10-3821 (Action Without Meeting for Non-Profits): This statute, which applies more broadly to non-profit corporations, allows a board of directors to take action without a meeting if the action is approved by one or more written consents signed by all directors.

Ruling on Complaint #1 (Violation Established)

The ALJ concluded that the petitioner had proven by a preponderance of the evidence that the HOA violated the open meeting law. The core of the ruling is that the specific requirements of A.R.S. § 33-1804 for homeowners’ associations must be followed, even if A.R.S. § 10-3821 provides a different mechanism for general non-profits.

The final decision states: “Respondent improperly conducted association business in closed sessions via email rather than in meetings open to the members.” The use of email voting to achieve unanimous consent was deemed a violation because it denied members the notice, agenda, and opportunity to speak that are guaranteed by the HOA open meeting law.

However, the ALJ gave “consideration to the fact that Respondent was faced with an unprecedented global pandemic” and found that “no civil penalty is appropriate given the circumstances.”

Ruling on Complaint #2 (Violation Not Established)

The ALJ found that the petitioner failed to prove by a preponderance of the evidence that the Board conducted improper emergency executive sessions. The decision notes that there was “nothing in the record” to suggest the Board discussed topics outside the legally permitted exceptions for closed sessions, nor was there evidence to suggest the May 12, 2020, meeting was not a genuine emergency.

Final Order and Disposition

The final judgment, issued after the rehearing, is binding on both parties.

• Outcome: The petitioner’s petition was affirmed in part (regarding Complaint #1) and denied in part (regarding Complaint #2).

• Directives to Respondent (HOA):

1. The HOA is ordered to reimburse the petitioner’s $500.00 filing fee.

2. The HOA is directed to comply with the requirements of A.R.S. § 33-1804 going forward.

• Appeal: Any appeal of the final order must be filed for judicial review with the superior court within 35 days from the date of service.

Study Guide: Morin v. Solera Chandler Homeowners’ Association, Inc.

This guide provides a detailed review of the administrative case between Debra K. Morin (Petitioner) and the Solera Chandler Homeowners’ Association, Inc. (Respondent), as detailed in Administrative Law Judge Decisions No. 21F-H2120001-REL and No. 21F-H2120001-REL-RHG. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a comprehensive understanding of the case’s facts, legal arguments, and outcomes.

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Short-Answer Quiz

Instructions: Answer the following questions in two to three complete sentences, based only on the information provided in the source documents.

1. Who were the primary parties in this case, and what were their respective roles?

2. What was the central accusation in the Petitioner’s first complaint against the Respondent?

3. What two primary justifications did the Respondent provide for its actions during the COVID-19 pandemic?

4. According to the findings of the rehearing, what specific procedure did the Respondent use to obtain “unanimous written consents”?

5. Identify the two main Arizona Revised Statutes (A.R.S.) that were central to the legal dispute and briefly describe the function of each.

6. What was the final ruling on Complaint #1, and what was the judge’s reasoning?

7. Why did the Petitioner fail to prove the allegations in Complaint #2?

8. What specific factual error in the first Administrative Law Judge Decision prompted the Respondent to request a rehearing?

9. What two orders were issued against the Respondent in the final decision?

10. What specific circumstance did the Administrative Law Judge cite as a reason for not imposing a civil penalty on the Respondent?

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Answer Key

1. The primary parties were Debra K. Morin, the Petitioner and homeowner, and the Solera Chandler Homeowners’ Association, Inc., the Respondent. The Petitioner filed a petition with the Arizona Department of Real Estate alleging the Respondent violated state law, while the Respondent defended its actions before an Administrative Law Judge.

2. The Petitioner’s first complaint accused the Solera Homeowners’ Association Board of Directors of conducting non-privileged association business in closed sessions. Specifically, she alleged they used unanimous written consent to take action without providing agendas, giving 48-hour notice, or allowing members an opportunity to speak on key issues.

3. The Respondent argued that the COVID-19 pandemic prevented the Board of Directors from meeting in person to protect the health of members and directors. The Respondent also asserted that its use of unanimous written consents was legally authorized for non-profit corporations under A.R.S. § 10-3821.

4. The rehearing established that an individual from the community management company would email each Board member individually to request a “yes” or “no” vote on a proposal. If all members replied “yes,” the item was considered passed by unanimous consent, and the Board President would sign the formal consent document.

5. The central statutes were A.R.S. § 33-1804 and A.R.S. § 10-3821. A.R.S. § 33-1804 is the state’s open meeting law for homeowners’ associations, requiring meetings to be open to members with proper notice, while A.R.S. § 10-3821 allows the board of a non-profit corporation to take action without a meeting if all directors provide written consent.

6. The judge ruled in favor of the Petitioner on Complaint #1, affirming the violation. The judge reasoned that while A.R.S. § 10-3821 allows for action without a meeting, the more specific requirements of A.R.S. § 33-1804 mandate that all HOA board meetings be open to members, a requirement the Respondent violated by conducting business via email.

7. The Petitioner failed to prove Complaint #2 because she did not establish by a preponderance of the evidence that the Respondent’s executive sessions were improper. The judge found nothing in the record to suggest the Board discussed issues outside the legal exceptions listed in A.R.S. § 33-1804(A) or that the May 12, 2020, session was not a genuine emergency.

8. The Respondent requested a rehearing to correct a finding in Conclusion of Law 8 of the initial decision, which incorrectly stated that the association business at issue was conducted in closed sessions via “conference calls.” The Respondent acknowledged using conference calls for executive sessions but denied using them for the actions taken by unanimous written consent.

9. The Respondent was ordered to reimburse the Petitioner’s $500.00 filing fee for the issue on which she prevailed. Additionally, the Respondent was directed to comply with all requirements of A.R.S. § 33-1804 in the future.

10. The Administrative Law Judge gave consideration to the fact that the Respondent was “faced with an unprecedented global pandemic while balancing the need to comply with the applicable statutes and conduct association business.” Because of these unique circumstances, the judge found that no civil penalty was appropriate.

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Suggested Essay Questions

1. Discuss the conflict between A.R.S. § 33-1804 and A.R.S. § 10-3821 as it relates to the actions of the Solera Chandler Homeowners’ Association. How did the Administrative Law Judge resolve this conflict, and what does this imply about the hierarchy of state laws governing specific entities versus general corporations?

2. Analyze the Respondent’s argument that the COVID-19 pandemic justified their actions. To what extent did the Administrative Law Judge accept this argument, and how did it influence the final order?

3. Explain the legal standard of “preponderance of the evidence” and detail how it was applied to both Complaint #1 and Complaint #2. Why did the Petitioner meet this burden for the first complaint but not the second?

4. Trace the evolution of the case from the initial hearing to the rehearing. What specific finding of fact was corrected, and why was this correction significant for the legal record, even though it did not change the ultimate outcome for either complaint?

5. Based on the text of A.R.S. § 33-1804(F), discuss the stated policy of the state of Arizona regarding homeowner association meetings. How did the Respondent’s actions, specifically the use of email for unanimous consents, contravene this policy?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions and orders. In this case, Tammy L. Eigenheer served as the ALJ.

A.R.S. § 10-3821

An Arizona Revised Statute that allows the board of directors of a non-profit corporation to take action without a formal meeting, provided the action is taken by all directors and evidenced by one or more written consents.

A.R.S. § 33-1804

An Arizona Revised Statute, also known as the open meeting law for planned communities, which mandates that all meetings of an HOA board of directors must be open to all members. It requires 48-hour notice and allows for closed “executive sessions” only for specific, limited purposes.

Burden of Proof

The obligation on a party in a legal case to prove their allegations. In this proceeding, the Petitioner bore the burden of proving her claims.

Executive Session

A portion of a meeting that is closed to association members. Under A.R.S. § 33-1804(A), executive sessions are only permitted for specific reasons, such as receiving legal advice, discussing pending litigation, or addressing confidential personal or financial information.

Open Meeting

A meeting of an HOA’s board of directors that, according to A.R.S. § 33-1804, must be open to all members of the association, who must be permitted to attend and speak.

Petitioner

The party who initiates a legal action or petition. In this case, the Petitioner was homeowner Debra K. Morin.

Preponderance of the Evidence

The standard of proof required in this administrative hearing. It is defined as evidence that is of greater weight or more convincing than opposing evidence, showing that the fact sought to be proved is “more probable than not.”

Rehearing

A second hearing of a case to re-examine specific issues or correct errors from an initial decision. A rehearing was granted in this case to clarify how the unanimous written consents were executed.

Respondent

The party against whom a petition is filed. In this case, the Respondent was the Solera Chandler Homeowners’ Association, Inc.

Statutory Construction

The process of interpreting and applying legislation. The judge noted that the primary goal is to ascertain the legislature’s intent, first by looking at the statute’s plain language.

Unanimous Written Consent

A procedure, authorized by A.R.S. § 10-3821, where a board takes action without a meeting through written consents signed by all directors. The HOA used this method via individual emails to approve business, which was found to be a violation of HOA open meeting laws.

She Sued Her HOA Over Secret Pandemic Votes—And Won. Here’s What Every Homeowner Needs to Know.

Introduction: The Closed Doors of Your HOA

For many homeowners, it can feel like their Homeowners’ Association (HOA) board makes its most important decisions behind closed doors. You see the results—a new rule, a major repair project, a change in vendors—but the discussion and the vote happen out of sight. While the COVID-19 pandemic forced many organizations to find new ways to operate, for one Arizona HOA, their adaptation to remote work crossed a legal line, sparking a legal challenge from a resident.

The central conflict was straightforward: a homeowner, Debra K. Morin, filed a petition against the Solera Chandler Homeowners’ Association. She alleged they were making official decisions in secret through email, violating state law that guarantees homeowners the right to open meetings. While not all of her claims were affirmed, her primary complaint—that the board was conducting business in secret—led to a landmark decision for homeowner rights. The outcome of her case reveals several surprising and crucial lessons for every person living in an HOA community.

Takeaway 1: An HOA’s Open Meeting Law Trumps General Non-Profit Rules

1. Even a Pandemic Doesn’t Suspend a Homeowner’s Right to an Open Meeting

The Solera Chandler HOA board believed it was acting within the law. They argued that because they were a non-profit corporation, they could make decisions using “unanimous written consents” without a formal meeting. This practice is allowed for many non-profits under a general Arizona statute (A.R.S. § 10-3821). During the pandemic, this seemed like a practical way to conduct business without meeting in person.

However, the Administrative Law Judge ruled against the HOA. The judge’s key finding was that a more specific law takes precedence. The statute governing planned communities, A.R.S. § 33-1804, explicitly requires that all meetings of the board must be open to all members of the association. This is a critical legal lesson: when a specific law exists to govern a specific entity (like the Open Meeting Law for HOAs), it almost always overrides a more general law (like the one for all non-profits).

While the judge acknowledged the challenges of the “unprecedented global pandemic,” this did not excuse the violation, though it was cited as a reason not to issue a civil penalty.

Takeaway 2: “Meeting” by Email Is Still a Secret Meeting

2. A String of Individual Emails Can Constitute an Illegal Meeting

In the initial ruling, the judge found the board conducted business improperly, believing it was done via conference calls. Seizing on this factual error, the HOA challenged the decision and requested a rehearing, arguing their method was different and therefore permissible. In the rehearing, they clarified their actual process: the community management company would email each board member individually to request a ‘yes’ or ‘no’ vote. The HOA argued that because there was no simultaneous group discussion, this process wasn’t technically a “meeting.”

The challenge backfired. The judge’s final decision made it clear that this distinction didn’t matter. Whether by conference call or a series of individual emails, the result was the same: an illegal secret meeting. The method effectively prevented homeowners from observing the board’s process and speaking on agenda items before a vote was taken, as required by law. The HOA won their technical correction but lost the war, as the judge affirmed that the principle of transparency is more important than the specific technology used to circumvent it.

These weren’t minor housekeeping issues. The board was making substantial financial and operational decisions entirely out of public view, including:

• Repair and replacement of the sidewalk and community center entrance.

• Repair and replacement of the cool decking around both pools.

• Appointing new members to the Architectural Review Committee.

• Approving a retention basin project and the purchase of 420 tons of granite.

• Approving the 2020 summer hardwood pruning and removal of trees.

Takeaway 3: The Law Is Built to Favor Transparency

3. The Law Itself Has a Built-in Bias for Openness

The judge’s decision wasn’t just a narrow interpretation; it was guided by a powerful policy statement built directly into the Arizona statute for planned communities. The law itself tells judges, board members, and community managers exactly how it should be interpreted.

The text of A.R.S. § 33-1804(F) leaves no room for doubt:

It is the policy of this state as reflected in this section that all meetings of a planned community, whether meetings of the members’ association or meetings of the board of directors of the association, be conducted openly and that notices and agendas be provided for those meetings that contain the information that is reasonably necessary to inform the members of the matters to be discussed or decided and to ensure that members have the ability to speak after discussion of agenda items, but before a vote of the board of directors or members is taken. Toward this end, any person or entity that is charged with the interpretation of these provisions…shall construe any provision of this section in favor of open meetings.

This is a critical point. The law explicitly directs anyone interpreting it—including an HOA board—to resolve any ambiguity in favor of transparency and homeowner access. The default position is openness.

Takeaway 4: A Single Homeowner Can Force a Change

4. One Determined Homeowner Can Win

This case serves as an empowering lesson for homeowners who feel their board is operating in the shadows. Morin’s persistence paid off, proving that a single homeowner can successfully force a board to follow the law.

Her victory was clear and decisive. The court orders resulted in three key outcomes:

• The judge affirmed her petition, officially recognizing that the HOA had violated the law.

• The HOA was formally ordered to comply with the open meeting requirements of A.R.S. § 33-1804 going forward.

• The HOA was ordered to reimburse Ms. Morin her $500.00 filing fee.

This outcome demonstrates that the system can work. An individual homeowner with a valid complaint can navigate the process and achieve a binding legal victory that forces their HOA board to operate correctly.

Conclusion: Is Your Board Operating in the Open?

The lesson from the Solera Chandler HOA case is simple: transparency in HOA governance is not optional. It is a legal requirement designed to protect the rights of every homeowner to observe and participate in the governance of their community. The convenience of an email vote cannot replace the legal mandate for an open meeting.

Don’t assume your board is operating correctly. Review your meeting minutes. Ask questions about decisions that seem to appear without public discussion. Remember, the law explicitly favors openness, and as Debra Morin proved, it’s an enforceable right.

This case was about secret votes via email, but it highlights a larger principle of transparency. Does your HOA board make it easy for you to know what is being decided and to have your voice heard?

Case Participants

Petitioner Side

  • Debra K. Morin (petitioner)

Respondent Side

  • Lydia A. Peirce Linsmeier (HOA attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
    Also cited as Lydia Linsmeier
  • Joshua M. Bolen (HOA attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
  • Gail Ryan (board member)
    Solera Chandler Homeowners' Association, Inc.
    President of Board, resigned August 5, 2020
  • Kirk Sandquist (ARC member)
    Solera Chandler Homeowners' Association, Inc.
    Appointment approved April 30, 2020
  • Tom Dusbabek (ARC member)
    Solera Chandler Homeowners' Association, Inc.
    Appointment approved April 30, 2020
  • Ken Eller (contractor)
    Approved to be hired to draft architectural drawings

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Granted Request for Rehearing
  • f. del sol (Admin staff)
    Transmitted decisions

Lewis Smith v. Desert Isle Homeowners Association, Inc.

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Case Summary

Case ID 18F-H1817020-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-05-29
Administrative Law Judge Velva Moses-Thompson
Outcome The Administrative Law Judge granted the Petitioner's request for relief, finding that the Respondent HOA violated ARIZ. REV. STAT. section 33-1804(F) by failing to provide adequate notice and agenda information regarding the proposed CC&R amendment to prohibit short term rentals. The Respondent was ordered to pay the filing fee to the Petitioner.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Lewis Smith Counsel Mark J. Bainbridge, Esq.
Respondent Desert Isle Homeowners Association, Inc. Counsel William D. Condray, Esq.

Alleged Violations

ARIZ. REV. STAT. section 33-1804(F)

Outcome Summary

The Administrative Law Judge granted the Petitioner's request for relief, finding that the Respondent HOA violated ARIZ. REV. STAT. section 33-1804(F) by failing to provide adequate notice and agenda information regarding the proposed CC&R amendment to prohibit short term rentals. The Respondent was ordered to pay the filing fee to the Petitioner.

Key Issues & Findings

Violation of open meeting and notice requirements regarding CC&R amendment

The Board violated ARIZ. REV. STAT. section 33-1804(F) when it failed to provide notice or an agenda to all of its members of information that was reasonably necessary to inform the members that an amendment to the CC&Rs to prohibit short term members would be discussed at its special board of directors meetings held on November 8, 2017 and November 20, 2017.

Orders: Petitioner's petition was granted. Respondent was ordered to pay Petitioner the filing fee required by ARIZ. REV. STAT. section 32-2199.01.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. section 33-1804
  • ARIZ. REV. STAT. section 33-1804(B)
  • ARIZ. REV. STAT. section 33-1804(E)(1)
  • ARIZ. REV. STAT. section 33-1804(F)
  • ARIZ. REV. STAT. section 41-2198.01
  • ARIZ. REV. STAT. section 32-2199.02(A)
  • ARIZ. REV. STAT. section 32-2199.01

Analytics Highlights

Topics: Open Meetings, HOA Governance, Notice Requirements, CC&R Amendment, Short Term Rentals
Additional Citations:

  • ARIZ. REV. STAT. section 33-1804
  • ARIZ. REV. STAT. section 33-1804(B)
  • ARIZ. REV. STAT. section 33-1804(E)(1)
  • ARIZ. REV. STAT. section 33-1804(F)
  • ARIZ. REV. STAT. section 41-2198.01
  • ARIZ. REV. STAT. section 32-2199.02(A)
  • ARIZ. REV. STAT. section 32-2199.01

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Video Overview

Audio Overview

Decision Documents

18F-H1817020-REL Decision – 629473.pdf

Uploaded 2026-05-01T09:18:43 (46.2 KB)

18F-H1817020-REL Decision – 629515.pdf

Uploaded 2026-05-01T09:18:46 (51.9 KB)

18F-H1817020-REL Decision – 636989.pdf

Uploaded 2026-05-01T09:18:50 (139.8 KB)

18F-H1817020-REL Decision – 629473.pdf

Uploaded 2026-01-23T17:22:47 (46.2 KB)

18F-H1817020-REL Decision – 629515.pdf

Uploaded 2026-01-23T17:22:50 (51.9 KB)

18F-H1817020-REL Decision – 636989.pdf

Uploaded 2026-01-23T17:22:54 (139.8 KB)

Administrative Law Judge Decision Briefing: Smith vs. Desert Isle Homeowners Association, Inc.

Executive Summary

This document provides a comprehensive analysis of the legal dispute between Petitioner Lewis Smith and Respondent Desert Isle Homeowners Association, Inc. The core of the case revolves around allegations that the HOA’s Board of Directors violated Arizona’s open meeting laws.

The Administrative Law Judge (ALJ) ultimately ruled in favor of the Petitioner, finding that the Desert Isle HOA violated ARIZ. REV. STAT. § 33-1804(F). The decision established that the Board failed to provide its members with agendas containing information “reasonably necessary to inform the members” about discussions concerning a proposed amendment to the Covenants, Conditions, and Restrictions (CC&Rs) that would prohibit short-term rentals. This failure occurred during Board of Directors meetings held on November 8 and November 20, 2017.

As a result of this finding, the Petitioner’s petition was granted, and the Respondent was ordered to pay the Petitioner’s filing fee. The ruling underscores the state’s policy that planned community meetings must be conducted with transparency, and agendas must provide sufficient detail for members to understand the matters to be discussed or decided.

Case Overview

Case Number

18F-H1817020-REL

Tribunal

Office of Administrative Hearings (Phoenix, Arizona)

Petitioner

Lewis Smith

Respondent

Desert Isle Homeowners Association, Inc.

Administrative Law Judge

Velva Moses-Thompson

Hearing Date

April 16, 2018

Decision Date

May 29, 2018

Central Allegation

On or about December 5, 2017, Petitioner Lewis Smith filed a petition with the Arizona Department of Real Estate alleging that the Desert Isle HOA violated ARIZ. REV. STAT. § 33-1804. The petition contended that the Board of Directors discussed and advanced a significant CC&R amendment without proper notification to the association members.

The petition states, in part:

“All Board members have been meeting to discuss and add an amendment to the CC&R’s [sic] Prohibiting short term renters. These meetings have not been conducted openly and no notice or agenda were provided containing information necessary to inform members of the association of the matters to be discussed… At no time was the issue to add an amendment for short term rentals properly noticed or on an agenda for discussion before it became a ballot vote.”

Chronology of Events

October 23, 2017:

• Lewis Smith, William H. Winn, Kevin Barnett, and Chester Jay submit a formal request to the Board for a special members’ meeting.

• The stated purposes of the meeting were to:

1. Select and fund an attorney to update the HOA’s bylaws and CC&Rs to comply with current Arizona law.

2. Discuss obtaining a reserve study for the association’s capital needs.

3. Discuss a separate attorney letter regarding HOA governance.

October 24, 2017:

• Board President Doug Robinson responds to the request, expressing support for a meeting but stating that more than 30 days would be needed to gather supporting documentation.

October 31, 2017:

• A second group of homeowners, including Board members Greg Yacoubian, Doug Robinson, Curt Carlson, and Mike Andrews, submits a request to add an item to the agenda of the forthcoming special meeting.

• Their request was to “amend the CC&Rs by adding a section prohibiting ‘Short Term Rentals’ and defining minimum time allowed for Rentals.”

November 5, 2017:

• The Board provides an agenda for a Board of Directors meeting scheduled for November 8, 2017. The agenda did not include any item related to the proposed amendment to prohibit short-term rentals.

November 8, 2017:

• The Board of Directors meeting is held.

• The Board votes to call a special members’ meeting before November 23, 2017, to address the two petitions.

• During the “BOARD INPUT” section, member Curt Carlson “spoke of past issues about short term renting,” but this was not a formal agenda item for discussion or action.

November 10, 2017:

• The Board emails Lewis Smith, acknowledging his petition and requesting a “narrative explanation from you on each of your subjects” by November 17, 2017, to prepare the meeting information package for all homeowners.

November 18, 2017:

• The Board sends an agenda for another Board of Directors meeting scheduled for November 20, 2017.

• The agenda lists “Review/approval of special meeting mailing package” as a topic but provides no specific details regarding the proposed amendment on short-term rentals.

December 1, 2017:

• Board President Doug Robinson emails all homeowners to explain the upcoming special meeting on December 16, 2017.

• The email states: “To avoid cost and time we put both petitions together and are having one meeting that will required [sic] all owners to vote for or against these two petitions.”

• The agenda for the December 16 meeting is attached, which explicitly lists a vote on prohibiting short-term rentals.

December 16, 2017:

• The special members’ meeting is held. A vote is taken on the proposed amendment to prohibit short-term rentals.

• Vote Result: 9 homeowners in favor, 6 homeowners against.

Legal Framework and Analysis

The case centered on the interpretation and application of Arizona Revised Statutes related to planned communities.

Key Statute: ARIZ. REV. STAT. § 33-1804

This statute governs meetings and notices for planned communities. The judge’s decision rested heavily on the policy outlined in subsection (F).

• § 33-1804(B): Requires that notice for any special meeting of members must state the purpose, including “the general nature of any proposed amendment to the declaration or bylaws.”

• § 33-1804(E)(1): Requires that the agenda for a Board of Directors meeting be made available to all members in attendance.

• § 33-1804(F): This subsection contains the state’s declaration of policy, which was central to the judge’s conclusion. It states:

Burden of Proof

The Petitioner, Lewis Smith, bore the burden of proving that the Respondent violated the statute by a “preponderance of the evidence.” This standard is defined as evidence that is sufficient “to incline a fair and impartial mind to one side of the issue rather than the other.”

Findings and Conclusion of the Court

The Administrative Law Judge found that the Petitioner successfully met the burden of proof. The decision concludes that the agendas for the November 8 and November 20 Board of Directors meetings were legally insufficient.

Conclusion of Law #4:

“Petitioner established by a preponderance of the evidence that the Board violated ARIZ. REV. STAT. section 33-1804(F) when it failed to provide notice or an agenda to all of its members of information that was reasonably necessary to inform the members that an amendment to the CC&Rs to prohibit short term members would be discussed at its special board of directors meetings held on November 8, 2017 and November 20, 2017.”

Final Order

• The Petitioner’s petition in the matter was granted.

• Pursuant to ARIZ. REV. STAT. § 32-2199.02(A), the Respondent (Desert Isle HOA) was ordered to pay the Petitioner the filing fee.

• The Order is legally binding unless a rehearing is requested with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.

Parties and Legal Representation

Address

Legal Counsel

Petitioner

Lewis Smith
5459 E. Sorrento Dr.
Long Beach, CA 90803

Mark J. Bainbridge, Esq.
The Bainbridge Law Firm LLC
2122 E. Highland Ave. Ste. 250
Phoenix, AZ 85016-4779

Respondent

Desert Isle Homeowners Association, Inc.
411 Riverfront Dr. #7
Bullhead City, AZ 86442

William D. Condray, Esq.
2031 Highway 95 Ste. 2
Bullhead City, AZ 86442-6004

Study Guide: Smith v. Desert Isle Homeowners Association, Inc.

This guide provides a detailed review of the administrative case No. 18F-H1817020-REL between Petitioner Lewis Smith and Respondent Desert Isle Homeowners Association, Inc. It includes a short-answer quiz, an answer key, suggested essay questions, and a comprehensive glossary of key terms and entities involved in the matter.

Short-Answer Quiz

Answer the following questions in 2-3 sentences based on the information provided in the case documents.

1. Who are the primary parties in case No. 18F-H1817020-REL, and who represented them legally?

2. What was the three-part purpose of the special meeting requested by Lewis Smith and other homeowners on October 23, 2017?

3. A second petition was submitted on October 31, 2017. What was its purpose and who were the petitioners?

4. What key actions were taken regarding officers and a special meeting during the Board of Directors meeting on November 8, 2017?

5. What did the Desert Isle HOA Board demand from Lewis Smith in its email on November 10, 2017, to proceed with the special meeting?

6. What was the central allegation Lewis Smith made in his petition to the Arizona Department of Real Estate on December 5, 2017?

7. What was the outcome of the vote on the proposed amendment to prohibit short-term rentals at the December 16, 2017 special meeting?

8. Which specific section of the Arizona Revised Statutes did the Administrative Law Judge find the Board had violated?

9. According to the case documents, what is the definition of “preponderance of the evidence”?

10. What was the final ruling issued by Administrative Law Judge Velva Moses-Thompson on May 29, 2018?

Answer Key

1. The primary parties were the Petitioner, Lewis Smith, and the Respondent, Desert Isle Homeowners Association, Inc. Lewis Smith was represented by Mark J. Bainbridge, Esq., and the Desert Isle HOA was represented by William D. Condray, Esq.

2. The purpose of the meeting was threefold: to select and fund an attorney to update the HOA’s bylaws and CC&Rs to comply with current Arizona law; to discuss obtaining a reserve study for the association’s capital needs; and to discuss an attorney letter regarding HOA governance.

3. Greg Yacoubian, Doug Robinson, Curt Carlson, and Mike Andrews submitted a request to amend the CC&Rs by adding a section to prohibit “Short Term Rentals.” They requested this subject be added to the agenda of the special meeting already requested by Lewis Smith’s group to save time and money.

4. At the November 8, 2017 meeting, a motion passed unanimously to remove the existing VP, treasurer, and secretary. New officers and assistants were elected, and another motion passed to call the special meeting requested by the two groups of owners before November 23, 2017.

5. The Board requested a “narrative explanation” from Lewis Smith for each of his proposed subjects. The Board stated it would expect four narratives plus any referenced attorney engagement letters and needed the materials by November 17, 2017, to prepare the special meeting package.

6. Lewis Smith alleged that the Desert Isle HOA Board members met to discuss and add an amendment prohibiting short-term rentals without conducting the meetings openly. He stated that no proper notice or agenda was provided to inform members of the matters to be discussed before the issue became a ballot vote.

7. At the December 16, 2017 meeting, the proposed amendment to prohibit short-term rentals was voted on by homeowners. Nine homeowners voted in favor of the amendment, and six homeowners voted against it.

8. The Judge found that the Board violated ARIZ. REV. STAT. section 33-1804(F). The violation occurred when the Board failed to provide an agenda with information reasonably necessary to inform members that an amendment to the CC&Rs prohibiting short-term rentals would be discussed at the board meetings on November 8 and November 20, 2017.

9. The documents provide two definitions. The first is “such proof as convinces the trier of fact that the contention is more probably true than not.” The second, from Black’s Law Dictionary, is “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

10. The Administrative Law Judge granted the Petitioner’s petition. The Judge’s order required the Respondent (Desert Isle HOA) to pay the Petitioner the filing fee required by statute.

Essay Questions

1. Construct a detailed timeline of events from the initial petition by Lewis Smith on October 23, 2017, to the final Administrative Law Judge Decision on May 29, 2018. Include all key meetings, communications, and legal filings mentioned in the documents.

2. Analyze the ways in which the Desert Isle Homeowners Association Board failed to comply with the open meeting policies outlined in ARIZ. REV. STAT. section 33-1804. Use specific examples from the meeting agendas and communications to support the analysis.

3. Discuss the concept of “burden of proof” as it applies to this case. Explain who held the burden of proof for the violation and any affirmative defenses, and how the “preponderance of the evidence” standard was met by the Petitioner.

4. Compare and contrast the two petitions submitted by homeowners in October 2017. Evaluate how the Board handled each request and the procedural steps it took that ultimately led to the legal dispute.

5. Based on the findings of fact, evaluate the communication between the Desert Isle HOA Board and its members. Discuss the effectiveness and legality of the Board’s notices, agendas, and email correspondence regarding the special meeting and the proposed CC&R amendment.

Glossary of Key Terms

Term / Entity

Definition

Administrative Law Judge (ALJ)

The official who presides over administrative hearings, in this case, Velva Moses-Thompson. The ALJ hears evidence and issues a decision based on findings of fact and conclusions of law.

ARIZ. REV. STAT. section 33-1804

An Arizona state statute governing meetings in planned communities. It requires open meetings, proper notice to members (between 10 and 50 days prior), and agendas that are reasonably necessary to inform members of matters to be discussed or decided.

ARIZ. REV. STAT. section 41-2198.01

An Arizona state statute that permits an owner or planned community organization to file a petition with the Department of Real Estate for a hearing concerning violations of community documents or relevant statutes.

Board of Directors (Board)

The governing body of the Desert Isle Homeowners Association, Inc. At the time of the events, key members included Doug Robinson (President), Curt Carlson, and Mike Andrews.

Burden of Proof

The obligation to prove one’s assertion. In this case, the Petitioner bore the burden of proof to establish the violation, and the Respondent bore the burden for any affirmative defenses.

CC&Rs (Covenants, Conditions, and Restrictions)

The governing documents of the Desert Isle planned community. The petitions submitted by homeowners sought to amend these documents.

Desert Isle Homeowners Association, Inc.

The Respondent in the case; the planned community organization and non-profit corporation responsible for managing the Desert Isle community.

Lewis Smith

The Petitioner in the case; a homeowner in the Desert Isle community who filed a petition against the HOA.

Notice of Hearing

A formal notification issued by the Department of Real Estate setting the date and location for an administrative hearing. In this case, it was issued on January 22, 2018.

Office of Administrative Hearings

The state tribunal where the hearing for this case was conducted.

Petitioner

The party who files a petition initiating a legal action. In this case, Lewis Smith.

Post-hearing Briefs

Written legal arguments submitted by parties after a hearing has concluded. The record in this case was held open until May 9, 2018, to receive these briefs.

Preponderance of the Evidence

The standard of proof required in this administrative hearing. It is defined as evidence that is sufficient to convince the trier of fact that a contention is more probably true than not.

Reserve Study

A study to determine an association’s long-term capital needs for its common areas. Lewis Smith’s petition requested a discussion about obtaining one.

Respondent

The party against whom a petition is filed. In this case, Desert Isle Homeowners Association, Inc.

Special Meeting

A meeting of association members called for a specific purpose outside of regularly scheduled meetings. Both petitions in this case requested a special meeting.

Select all sources
629473.pdf
629515.pdf
636989.pdf

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18F-H1817020-REL

3 sources

The provided documents are related to a legal dispute between Lewis Smith and the Desert Isle Homeowners Association, Inc., heard by the Office of Administrative Hearings. The first two sources, 629473.pdf and 629515.pdf, are identical “Order Holding Record Open” documents dated April 18, 2018, which mandated that the parties submit post-hearing briefs by specific deadlines and required the Homeowners Association to clarify its objection to a specific exhibit. The final source, 636989.pdf, is the “Administrative Law Judge Decision” issued on May 29, 2018, which found that the Homeowners Association violated Arizona law by failing to properly inform members that they would be discussing a proposed amendment to prohibit short-term rentals at two special board meetings. Ultimately, the judge granted Lewis Smith’s petition and ordered the Homeowners Association to pay the required filing fee.

3 sources

Based on 3 sources

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NotebookLM can be inaccurate; please double check its responses.

Case Participants

Petitioner Side

  • Lewis Smith (petitioner)
  • Mark J. Bainbridge (petitioner attorney)
    The Bainbridge Law Firm LLC
  • William H. Winn (homeowner)
    Submitted petition with Petitioner
  • Kevin Barnett (homeowner)
    Submitted petition with Petitioner
  • Chester Jay (homeowner)
    Submitted petition with Petitioner
  • Mike Sharp (homeowner/representative)
    Representative for Kevin Barnett
  • Kim Sharp (homeowner/representative)
    Representative for Kevin Barnett

Respondent Side

  • William D. Condray (respondent attorney)
  • Doug Robinson (board member)
    Desert Isle Homeowners Association, Inc.
    Board President
  • Curt Carlson (board member)
    Desert Isle Homeowners Association, Inc.
  • Mike Andrews (board member)
    Desert Isle Homeowners Association, Inc.
  • Greg Yacoubian (homeowner/board member)
    Desert Isle Homeowners Association, Inc.
    Replaced Mike Andrews on 11/20/17
  • Judy Carlson (HOA officer)
    Desert Isle Homeowners Association, Inc.
    Treasurer
  • Terri Robinson (HOA officer)
    Desert Isle Homeowners Association, Inc.
    Secretary
  • Jamie Kelly (HOA attorney)
    Consulted on Special Meeting package

Neutral Parties

  • Velva Moses-Thompson (ALJ)
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • M.Aguirre (Clerk/Admin)
    Transmitting agent
  • LDettorre (ADRE Staff)
    ADRE
    Recipient of transmission
  • AHansen (ADRE Staff)
    ADRE
    Recipient of transmission
  • djones (ADRE Staff)
    ADRE
    Recipient of transmission
  • DGardner (ADRE Staff)
    ADRE
    Recipient of transmission
  • ncano (ADRE Staff)
    ADRE
    Recipient of transmission

Other Participants

  • Terry Constantino (homeowner/attendee)
  • Lynn Hammond (homeowner/attendee)
  • Dale Collins (guest speaker)