Case Summary
| Case ID | 12F-H1212002-BFS; 12F-H1212009-BFS |
|---|---|
| Agency | Department of Fire, Building and Life Safety |
| Tribunal | Office of Administrative Hearings |
| Decision Date | 2013-01-17 |
| Administrative Law Judge | M. Douglas |
| Outcome | no |
| Filing Fees Refunded | $0.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | John and Debborah Sellers | Counsel | — |
|---|---|---|---|
| Respondent | Crossings at Willow Creek Property Owners Association | Counsel | Joshua M. Bolen |
Alleged Violations
A.R.S. § 33-1804
A.R.S. § 33-1805
Outcome Summary
The ALJ dismissed both petitions. Regarding the ARC meetings, the judge ruled they were not regularly scheduled and thus notice was not required. Regarding the records request, the judge ruled the withheld documents were protected by attorney-client privilege.
Why this result: Petitioners failed to prove by a preponderance of the evidence that the HOA violated statutes or CC&Rs; applicable laws provide exceptions for irregular meetings and privileged records.
Key Issues & Findings
Failure to notice and conduct publicly ARC Meetings
Petitioners alleged the HOA failed to notice and conduct publicly Architectural Review Committee (ARC) meetings. The ALJ found that ARC meetings were held 'as necessary' and were not 'regularly scheduled,' and therefore did not require notice under the statute or Bylaws.
Orders: Petition dismissed; no action required.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
- A.R.S. § 33-1804
Failure to provide requested HOA records
Petitioners requested attorney invoices and communications. The HOA refused based on attorney-client privilege. The ALJ found the refusal was justified under statutory exceptions for privileged communication.
Orders: Petition dismissed; no action required.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
- A.R.S. § 33-1805
- A.R.S. § 12-2234
Decision Documents
12F-H1212009-BFS Decision – 321619.pdf
12F-H1212009-BFS Decision – 327760.pdf
**Case Summary: Sellers v. Crossings at Willow Creek Property Owners Association**
**Case No:** 12F-H1212009-BFS (Consolidated with 12F-H1212002-BFS)
**Overview**
This hearing concerned a dispute between homeowners John and Debborah Sellers (Petitioners) and the Crossings at Willow Creek Property Owners Association (Respondent). The matter was heard by Administrative Law Judge M. Douglas on September 26, 2012, and January 4, 2013. The two cases were consolidated for the hearing.
**Key Issues**
1. **Refusal to Provide Records (Case 12F-H1212009-BFS):** The Petitioners alleged the Association failed to provide requested records, specifically invoices from the HOA’s attorneys and communications between the attorneys and third parties (including settlement correspondence). Petitioners argued these did not constitute attorney-client privileged communications.
2. **Failure to Conduct Public Meetings (Case 12F-H1212002-BFS):** The Petitioners alleged the Architectural Review Committee (ARC) failed to notice and conduct its meetings publicly, violating A.R.S. § 33-1804 and community documents.
**Legal Arguments and Testimony**
* **Records:** The Respondent denied the allegations, asserting the refusal was based on statutory privilege. Relevant statutes A.R.S. § 33-1805(B) and A.R.S. § 12-2234 allow an association to withhold records related to privileged attorney-client communications and pending litigation.
* **Meetings:** Testimony established that the ARC did not hold "regularly scheduled" meetings; instead, meetings occurred "on demand" or "as necessary" based on architectural submissions. The Association's Bylaws mandate the ARC meet "from time to time as necessary" rather than on a fixed schedule. A.R.S. § 33-1804(A) requires that "regularly scheduled committee meetings" be open to members.
**Findings of Fact and Conclusions of Law**
The Administrative Law Judge (ALJ) placed the burden of proof on the Petitioners to show a violation by a "preponderance of the evidence".
1. **Regarding Records:** The ALJ found that the Association's refusal to release the requested documents was properly based on statutory exceptions for attorney-client privileged material. The Petitioners failed to prove that the withholding of these documents violated the statute or the CC&Rs.
2. **Regarding
Case Participants
Petitioner Side
- John Sellers (petitioner)
Appeared at hearing - Debborah Sellers (petitioner)
Testified regarding ARC service
Respondent Side
- Joshua M. Bolen (respondent attorney)
Carpenter, Hazlewood, Delgado & Bolen, PLC - Brenda Doziar (witness)
Crossings at Willow Creek Property Owners Association
Board member and ARC member - Robert Balzano (witness)
Crossings at Willow Creek Property Owners Association
Former statutory agent and manager - Kenneth Burnett (witness)
Crossings at Willow Creek Property Owners Association
Board member
Neutral Parties
- M. Douglas (ALJ)
Office of Administrative Hearings - G. Eugene Neil (witness)
City of Prescott
Interim City Attorney; provided public records - Larry Harding (witness)
Crossings at Willow Creek Property Owners Association
Commercial insurance agent for Respondent - Gene Palma (Director)
Department of Fire Building and Life Safety
Named as Director for transmittal - Cliff J. Vanell (Director)
Office of Administrative Hearings
Certified the decision - Joni Cage (agency staff)
Department of Fire Building and Life Safety
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