Tag Archives: A.R.S. § 33-1804(C)

Michael Holland v. Tonto Forest Estates Homeowner’s Association

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Case Summary

Case ID 23F-H039-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-10-20
Administrative Law Judge Kay Abramsohn
Outcome full
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Michael Holland Counsel —
Respondent Tonto Forest Estates Homeowner's Association Counsel John A. Buric

Alleged Violations

A.R.S. § 33-1804(A)

Outcome Summary

The Administrative Law Judge granted the Petition, concluding that the HOA violated A.R.S. § 33-1804(A) because the portion of the meeting where recording was prohibited was not effectively 'closed' (as members were allowed to remain) and therefore remained 'open' and subject to members' right to record.

Key Issues & Findings

Improperly preventing members from recording an open board meeting

The HOA Board prohibited homeowners participating in an open meeting on September 28, 2022, from recording that meeting. The HOA argued the portion was closed due to receiving legal advice/contemplated litigation, but the ALJ found the portion was not effectively 'closed' because no members were required to leave, thus the HOA lacked authority to prevent recording.

Orders: HOA found in violation; ordered to reimburse Petitioner $500.00 filing fee.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

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

Analytics Highlights

Topics: HOA Open Meeting Law, Recording Rights, Attorney-Client Privilege, Filing Fee Reimbursement
Additional Citations:

  • A.R.S. § 33-1804
  • A.R.S. § 33-1804(A)
  • A.R.S. § 33-1804(C)
  • A.R.S. § 32-2199.05
  • A.R.S. § 41-1092

Video Overview

Audio Overview

https://open.spotify.com/episode/1HMZkdoqbaNNK62AtCa9mz

Decision Documents

23F-H039-REL Decision – 1040495.pdf

Uploaded 2026-01-23T17:54:51 (47.4 KB)

23F-H039-REL Decision – 1044744.pdf

Uploaded 2026-01-23T17:54:54 (51.9 KB)

23F-H039-REL Decision – 1059207.pdf

Uploaded 2026-01-23T17:54:57 (49.0 KB)

23F-H039-REL Decision – 1059214.pdf

Uploaded 2026-01-23T17:55:01 (5.8 KB)

23F-H039-REL Decision – 1087229.pdf

Uploaded 2026-01-23T17:55:05 (98.4 KB)

23F-H039-REL Decision – 1087233.pdf

Uploaded 2026-01-23T17:55:09 (18.7 KB)

23F-H039-REL Decision – 1095655.pdf

Uploaded 2026-01-23T17:55:13 (70.2 KB)

23F-H039-REL Decision – 1095796.pdf

Uploaded 2026-01-23T17:55:17 (13.5 KB)

23F-H039-REL Decision – 1101606.pdf

Uploaded 2026-01-23T17:55:20 (39.6 KB)

23F-H039-REL Decision – 1102499.pdf

Uploaded 2026-01-23T17:55:26 (41.2 KB)

23F-H039-REL Decision – 1104514.pdf

Uploaded 2026-01-23T17:55:31 (138.2 KB)

23F-H039-REL Decision – 1104862.pdf

Uploaded 2026-01-23T17:55:36 (6.1 KB)

Questions

Question

Can I record an open HOA board meeting?

Short Answer

Yes, homeowners have the statutory right to audio or video tape open portions of board and member meetings.

Detailed Answer

Under Arizona law, persons attending HOA meetings are permitted to audiotape or videotape any portion of the meeting that is open. The HOA cannot prohibit this for open sessions.

Alj Quote

A.R.S. § 33-1804(A) allows a person to record 'those portions of the meetings of the board of directors and meetings of the members that are open.'

Legal Basis

A.R.S. § 33-1804(A)

Topic Tags

  • recording meetings
  • homeowner rights
  • open meetings

Question

Can the HOA board stop me from recording if an attorney is giving legal advice?

Short Answer

Not if the meeting remains open to members. To stop recording, the board must physically close the meeting (exclude members).

Detailed Answer

Even if the board intends to receive legal advice (a valid reason to close a meeting), they cannot simply ask members to stop recording while allowing them to remain in the room. If members are allowed to stay, the meeting is not 'closed,' and the right to record remains.

Alj Quote

Because no portion of the September 28, 2022 meeting was 'closed,' the HOA had no authority under A.R.S. § 33-1804(A) to prevent the HOA members from recording the meeting.

Legal Basis

A.R.S. § 33-1804(A)

Topic Tags

  • recording meetings
  • legal advice
  • closed sessions

Question

What actually constitutes a 'closed' meeting or executive session?

Short Answer

A meeting is considered closed only if members are required to leave or are excluded from attending.

Detailed Answer

Merely stating that a portion of the meeting is for legal advice or asking members to stop recording is not enough to close a meeting. If members are present and not asked to leave, the meeting is effectively open.

Alj Quote

However, nothing in the record demonstrates that this specific portion of the meeting was effectively 'closed.' In fact, Mr. Meister confirmed that none of the members present, or anyone online, had to leave the meeting or had to leave the meeting for the portion that included the attorney’s advice.

Legal Basis

A.R.S. § 33-1804(A)

Topic Tags

  • closed sessions
  • definitions
  • procedural requirements

Question

Who has the burden of proof in an HOA dispute hearing?

Short Answer

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

Detailed Answer

The homeowner must prove by a preponderance of the evidence that the HOA violated the community documents or statutes. This means showing the contention is more probably true than not.

Alj Quote

In these proceedings, a petitioner bears the burden of proving by a preponderance of the evidence that a respondent has violated the planned community document(s’) provisions or statutes alleged to have been violated.

Legal Basis

Ariz. Admin. Code R2-19-119

Topic Tags

  • legal standards
  • burden of proof
  • hearing procedures

Question

Can I recover my $500 filing fee if I win the hearing?

Short Answer

Yes, the Administrative Law Judge can order the HOA to reimburse the filing fee.

Detailed Answer

If the petitioner prevails in the hearing, the judge has the authority to order the respondent (HOA) to reimburse the statutory filing fee paid to the Department of Real Estate.

Alj Quote

IT IS FURTHER ORDERED Respondent shall reimburse Petitioner his $500.00 filing fee.

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • remedies
  • fees
  • penalties

Question

What authority does the Office of Administrative Hearings have in HOA disputes?

Short Answer

OAH can decide petitions, order compliance with statutes/documents, interpret contracts, and levy civil penalties.

Detailed Answer

The tribunal has broad authority to resolve disputes regarding violations of condominium documents or statutes, including interpreting contracts between the parties and imposing penalties for proven violations.

Alj Quote

OAH has the authority to consider and decide the contested petitions, the authority to order any party to abide by the statute, community documents and contract provisions at issue, the authority to interpret the contract between the parties, and the authority to levy a civil penalty on the basis of each proven violation.

Legal Basis

A.R.S. §§ 32-2199 et seq.

Topic Tags

  • jurisdiction
  • OAH authority
  • civil penalties

Case

Docket No
23F-H039-REL
Case Title
Michael Holland v. Tonto Forest Estates Homeowner's Association
Decision Date
2023-10-20
Alj Name
Kay Abramsohn
Tribunal
OAH
Agency
ADRE

Questions

Question

Can I record an open HOA board meeting?

Short Answer

Yes, homeowners have the statutory right to audio or video tape open portions of board and member meetings.

Detailed Answer

Under Arizona law, persons attending HOA meetings are permitted to audiotape or videotape any portion of the meeting that is open. The HOA cannot prohibit this for open sessions.

Alj Quote

A.R.S. § 33-1804(A) allows a person to record 'those portions of the meetings of the board of directors and meetings of the members that are open.'

Legal Basis

A.R.S. § 33-1804(A)

Topic Tags

  • recording meetings
  • homeowner rights
  • open meetings

Question

Can the HOA board stop me from recording if an attorney is giving legal advice?

Short Answer

Not if the meeting remains open to members. To stop recording, the board must physically close the meeting (exclude members).

Detailed Answer

Even if the board intends to receive legal advice (a valid reason to close a meeting), they cannot simply ask members to stop recording while allowing them to remain in the room. If members are allowed to stay, the meeting is not 'closed,' and the right to record remains.

Alj Quote

Because no portion of the September 28, 2022 meeting was 'closed,' the HOA had no authority under A.R.S. § 33-1804(A) to prevent the HOA members from recording the meeting.

Legal Basis

A.R.S. § 33-1804(A)

Topic Tags

  • recording meetings
  • legal advice
  • closed sessions

Question

What actually constitutes a 'closed' meeting or executive session?

Short Answer

A meeting is considered closed only if members are required to leave or are excluded from attending.

Detailed Answer

Merely stating that a portion of the meeting is for legal advice or asking members to stop recording is not enough to close a meeting. If members are present and not asked to leave, the meeting is effectively open.

Alj Quote

However, nothing in the record demonstrates that this specific portion of the meeting was effectively 'closed.' In fact, Mr. Meister confirmed that none of the members present, or anyone online, had to leave the meeting or had to leave the meeting for the portion that included the attorney’s advice.

Legal Basis

A.R.S. § 33-1804(A)

Topic Tags

  • closed sessions
  • definitions
  • procedural requirements

Question

Who has the burden of proof in an HOA dispute hearing?

Short Answer

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

Detailed Answer

The homeowner must prove by a preponderance of the evidence that the HOA violated the community documents or statutes. This means showing the contention is more probably true than not.

Alj Quote

In these proceedings, a petitioner bears the burden of proving by a preponderance of the evidence that a respondent has violated the planned community document(s’) provisions or statutes alleged to have been violated.

Legal Basis

Ariz. Admin. Code R2-19-119

Topic Tags

  • legal standards
  • burden of proof
  • hearing procedures

Question

Can I recover my $500 filing fee if I win the hearing?

Short Answer

Yes, the Administrative Law Judge can order the HOA to reimburse the filing fee.

Detailed Answer

If the petitioner prevails in the hearing, the judge has the authority to order the respondent (HOA) to reimburse the statutory filing fee paid to the Department of Real Estate.

Alj Quote

IT IS FURTHER ORDERED Respondent shall reimburse Petitioner his $500.00 filing fee.

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • remedies
  • fees
  • penalties

Question

What authority does the Office of Administrative Hearings have in HOA disputes?

Short Answer

OAH can decide petitions, order compliance with statutes/documents, interpret contracts, and levy civil penalties.

Detailed Answer

The tribunal has broad authority to resolve disputes regarding violations of condominium documents or statutes, including interpreting contracts between the parties and imposing penalties for proven violations.

Alj Quote

OAH has the authority to consider and decide the contested petitions, the authority to order any party to abide by the statute, community documents and contract provisions at issue, the authority to interpret the contract between the parties, and the authority to levy a civil penalty on the basis of each proven violation.

Legal Basis

A.R.S. §§ 32-2199 et seq.

Topic Tags

  • jurisdiction
  • OAH authority
  • civil penalties

Case

Docket No
23F-H039-REL
Case Title
Michael Holland v. Tonto Forest Estates Homeowner's Association
Decision Date
2023-10-20
Alj Name
Kay Abramsohn
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Michael Holland (petitioner)
    Represented himself
  • Jill Burns (witness)
    Recorded the meeting at issue; former officer of the Board
  • Linda L. Holland (party affiliate)
    Co-owner of the property; Michael Holland's mother

Respondent Side

  • Tonto Forest Estates Homeowner's Association (respondent)
  • John A. Buric (HOA attorney)
    Warner Angle Hallam Jackson & Formanek PLC
    Represented Respondent HOA
  • Kurt Meister (board member)
    Tonto Forest Estates Homeowner's Association
    President of the Board of Directors; Testified as witness for Respondent
  • Clint Goodman (HOA attorney)
    Goodman Law
    Attorney who provided legal advice at the September 28, 2022 meeting
  • Steve Dower (board member)
    Tonto Forest Estates Homeowner's Association
    Mentioned in testimony by Petitioner
  • Melissa Jordan (property manager)
    Ogden
    Monitored the phone line during the meeting
  • Carrie Chu (board member)
    Tonto Forest Estates Homeowner's Association
    Spoke during meeting minutes discussion

Neutral Parties

  • Kay Abramsohn (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge for hearing and final decision
  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge on earlier orders
  • Susan Nicolson (ADRE Commissioner)
    Arizona Department of Real Estate
    Recipient of official transmissions
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmissions
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmissions
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmissions
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmissions

Other Participants

  • Mary Gura (community member)
    Attendee of the virtual hearing
  • John Cron (community member)
    Attendee of the virtual hearing; identified in relation to litigation/claim discussed by attorney Goodman
  • Janet Cron (witness)
    Listed on Petitioner's witness list; John Cron's wife
  • Chris Chopat (community member)
    Attendee of the meeting; asked for statute citation regarding recording

Jill P. Eden-Burns v. Tonto Forest Estates Homeowners Association

Posted on by

Case Summary

Case ID 23F-H015-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-05-18
Administrative Law Judge Tammy L. Eigenheer
Outcome full
Filing Fees Refunded $1,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Jill P. Eden-Burns Counsel —
Respondent Tonto Forest Estates Homeowners Association Counsel Daniel S. Francom

Alleged Violations

A.R.S. § 33-1804(A), (C), (E); CC&R 4.32

Outcome Summary

The petition was granted because the Association violated A.R.S. § 33-1804 (Open Meeting Law) by holding an informal quorum discussion prior to a meeting, and violated CC&R 4.32 by improperly charging the homeowner $1750.00 for septic maintenance and repair costs that should have been covered by annual common assessments.

Key Issues & Findings

Violation of Open Meeting Laws and unequal application of CC&R 4.32 regarding septic system costs.

The Board violated open meeting laws by holding an informal quorum discussion about septic policy prior to a formal meeting. Additionally, the Association improperly charged Petitioner $1750.00 for septic maintenance and repair, violating CC&R 4.32, which mandates such costs be included as part of Assessments allocated equally among all Lots.

Orders: Petition granted. Respondent must reimburse the $1,000.00 filing fee and henceforth comply with A.R.S. § 33-33-1804 and CC&R 4.32.

Filing fee: $1,000.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1804(A)
  • A.R.S. § 33-1804(C)
  • A.R.S. § 33-1804(E)
  • CC&R 4.32

Analytics Highlights

Topics: Open Meeting Law, HOA Governing Documents, Assessment Dispute, Septic System Maintenance, Informal Meeting
Additional Citations:

  • A.R.S. § 32-2102
  • A.R.S. § 32-2199 et seq.
  • A.R.S. § 33-1804(A)
  • A.R.S. § 33-1804(C)
  • A.R.S. § 33-1804(E)
  • CC&R 4.32
  • CC&R 8.1
  • CC&R 8.2
  • CC&R 11.2
  • CC&R 15.1

Video Overview

Audio Overview

https://open.spotify.com/episode/3kec7arsCl2MroOtIDp5eO

Decision Documents

23F-H015-REL Decision – 1015027.pdf

Uploaded 2026-01-23T17:51:28 (52.0 KB)

23F-H015-REL Decision – 1017891.pdf

Uploaded 2026-01-23T17:51:32 (53.2 KB)

23F-H015-REL Decision – 1024720.pdf

Uploaded 2026-01-23T17:51:35 (59.5 KB)

23F-H015-REL Decision – 1033722.pdf

Uploaded 2026-01-23T17:51:38 (47.5 KB)

23F-H015-REL Decision – 1057466.pdf

Uploaded 2026-01-23T17:51:42 (168.6 KB)





Study Guide – 23F-H015-REL


{ “case”: { “docket_no”: “23F-H015-REL”, “case_title”: “Jill P. Eden-Burns v. Tonto Forest Estates Homeowners Association”, “decision_date”: “2023-05-18”, “alj_name”: “Tammy L. Eigenheer”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Can the HOA board meet informally (e.g., on Zoom) before an open meeting to discuss business without notifying homeowners?”, “short_answer”: “No. Any gathering of a quorum of the board to discuss association business, even informally, must be open to members.”, “detailed_answer”: “Arizona law requires that whenever a quorum of the board meets to discuss association business, the meeting must be open to members. This applies even if the meeting is informal and no official votes or actions are taken during that time. Discussions about how to handle agenda items or agreeing on policies effectively constitute a meeting.”, “alj_quote”: “The plain language of the statute provides that when a quorum of a board of directors meets, even informally, to discuss association business, the meeting must be open to the members of the association, even if they do not vote or take any action during the informal meeting.”, “legal_basis”: “A.R.S. § 33-1804(A), (C), and (E)”, “topic_tags”: [ “open meeting law”, “board procedures”, “informal meetings” ] }, { “question”: “Does the board have to take a formal vote for a private discussion to be considered a violation of open meeting laws?”, “short_answer”: “No. Merely discussing business is sufficient to trigger open meeting requirements.”, “detailed_answer”: “It is a violation of open meeting laws for a quorum of the board to discuss association business in private, even if they do not take a formal vote or action. If the board members discuss a policy and agree on how to proceed (e.g., agreeing to ‘just nod our heads’ later), they are conducting business that must be done in the open.”, “alj_quote”: “The plain language of the statute provides that when a quorum of a board of directors meets, even informally, to discuss association business, the meeting must be open to the members of the association, even if they do not vote or take any action during the informal meeting.”, “legal_basis”: “A.R.S. § 33-1804(E)”, “topic_tags”: [ “open meeting law”, “voting”, “quorum” ] }, { “question”: “Can the HOA charge me individually for maintenance on my lot if the CC&Rs say costs are part of ‘Assessments’?”, “short_answer”: “Not necessarily. It depends on how ‘Assessments’ is defined in your CC&Rs.”, “detailed_answer”: “If the CC&Rs define ‘Assessments’ as charges levied against each membership equally (like annual dues), the HOA cannot interpret a provision saying costs are ‘part of the Assessments’ as authorization to bill a single owner individually. Unless there is a specific provision allowing individual charges (like for owner negligence), maintenance costs defined as ‘Assessments’ must generally be paid from the common funds.”, “alj_quote”: “Nothing in Article 8 provides a mechanism by which a single owner may be charged for fees associated with their lot. Rather, that type of charge is located in Section 11 of the CC&Rs, which is not referenced in the definition of ‘Assessments.'”, “legal_basis”: “CC&R Interpretation”, “topic_tags”: [ “assessments”, “maintenance costs”, “CC&R interpretation” ] }, { “question”: “Who has the burden of proof in an administrative hearing against an HOA?”, “short_answer”: “The homeowner (Petitioner) filing the complaint has the burden of proof.”, “detailed_answer”: “The homeowner must prove their case by a ‘preponderance of the evidence,’ which means they must show that their claims are more probably true than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-33-1804(A), (C) and (E) and the CC&Rs.”, “legal_basis”: “Administrative Law Standard”, “topic_tags”: [ “burden of proof”, “legal procedure”, “evidence” ] }, { “question”: “If I win my hearing against the HOA, can I get my filing fee back?”, “short_answer”: “Yes, the Administrative Law Judge can order the HOA to reimburse the filing fee.”, “detailed_answer”: “If the petitioner prevails in the hearing, the ALJ has the authority to order the Respondent (the HOA) to reimburse the filing fee paid to the Department of Real Estate.”, “alj_quote”: “IT IS FURTHER ORDERED that Respondent reimburse Petitioner’s filing fee of $1,000.00 in certified funds.”, “legal_basis”: “A.R.S. § 32-2199 et seq.”, “topic_tags”: [ “filing fees”, “remedies”, “penalties” ] }, { “question”: “How are ambiguous terms in CC&Rs interpreted?”, “short_answer”: “Words are given their natural, obvious, and ordinary meaning, and definitions within the document are prioritized.”, “detailed_answer”: “When interpreting CC&Rs, the tribunal looks at the defined terms within the document. If a term like ‘Assessment’ is specifically defined as a general charge allocated equally, that definition controls over an interpretation that would allow individual billing, unless another section specifically authorizes it.”, “alj_quote”: “Unless defined by the legislature, words in statutes are given their ordinary meanings… Each word, phrase, clause, and sentence of a statute or rule must be given meaning so that no part will be void, inert, redundant, or trivial.”, “legal_basis”: “Principles of Statutory/Contract Construction”, “topic_tags”: [ “legal interpretation”, “CC&Rs”, “definitions” ] }, { “question”: “Does the HOA have to maintain systems on my lot if the CC&Rs state they ‘shall assume responsibility’?”, “short_answer”: “Yes. If the CC&Rs state the HOA assumes responsibility for monitoring, maintenance, and repair, they must perform and pay for it.”, “detailed_answer”: “When the governing documents explicitly state the Association ‘shall assume responsibility’ for maintenance, and the costs are to be included in the general Assessments, the HOA cannot shift that financial burden back to the individual owner improperly.”, “alj_quote”: “Accordingly, the terms of the CC&Rs requires that Respondent is responsible for the maintenance of the septic systems in the Association and that the maintenance is to be paid for from the annual assessments collected by Respondent.”, “legal_basis”: “Contract Law / CC&R Enforcement”, “topic_tags”: [ “HOA obligations”, “maintenance”, “repairs” ] } ] }






Blog Post – 23F-H015-REL


{ “case”: { “docket_no”: “23F-H015-REL”, “case_title”: “Jill P. Eden-Burns v. Tonto Forest Estates Homeowners Association”, “decision_date”: “2023-05-18”, “alj_name”: “Tammy L. Eigenheer”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Can the HOA board meet informally (e.g., on Zoom) before an open meeting to discuss business without notifying homeowners?”, “short_answer”: “No. Any gathering of a quorum of the board to discuss association business, even informally, must be open to members.”, “detailed_answer”: “Arizona law requires that whenever a quorum of the board meets to discuss association business, the meeting must be open to members. This applies even if the meeting is informal and no official votes or actions are taken during that time. Discussions about how to handle agenda items or agreeing on policies effectively constitute a meeting.”, “alj_quote”: “The plain language of the statute provides that when a quorum of a board of directors meets, even informally, to discuss association business, the meeting must be open to the members of the association, even if they do not vote or take any action during the informal meeting.”, “legal_basis”: “A.R.S. § 33-1804(A), (C), and (E)”, “topic_tags”: [ “open meeting law”, “board procedures”, “informal meetings” ] }, { “question”: “Does the board have to take a formal vote for a private discussion to be considered a violation of open meeting laws?”, “short_answer”: “No. Merely discussing business is sufficient to trigger open meeting requirements.”, “detailed_answer”: “It is a violation of open meeting laws for a quorum of the board to discuss association business in private, even if they do not take a formal vote or action. If the board members discuss a policy and agree on how to proceed (e.g., agreeing to ‘just nod our heads’ later), they are conducting business that must be done in the open.”, “alj_quote”: “The plain language of the statute provides that when a quorum of a board of directors meets, even informally, to discuss association business, the meeting must be open to the members of the association, even if they do not vote or take any action during the informal meeting.”, “legal_basis”: “A.R.S. § 33-1804(E)”, “topic_tags”: [ “open meeting law”, “voting”, “quorum” ] }, { “question”: “Can the HOA charge me individually for maintenance on my lot if the CC&Rs say costs are part of ‘Assessments’?”, “short_answer”: “Not necessarily. It depends on how ‘Assessments’ is defined in your CC&Rs.”, “detailed_answer”: “If the CC&Rs define ‘Assessments’ as charges levied against each membership equally (like annual dues), the HOA cannot interpret a provision saying costs are ‘part of the Assessments’ as authorization to bill a single owner individually. Unless there is a specific provision allowing individual charges (like for owner negligence), maintenance costs defined as ‘Assessments’ must generally be paid from the common funds.”, “alj_quote”: “Nothing in Article 8 provides a mechanism by which a single owner may be charged for fees associated with their lot. Rather, that type of charge is located in Section 11 of the CC&Rs, which is not referenced in the definition of ‘Assessments.'”, “legal_basis”: “CC&R Interpretation”, “topic_tags”: [ “assessments”, “maintenance costs”, “CC&R interpretation” ] }, { “question”: “Who has the burden of proof in an administrative hearing against an HOA?”, “short_answer”: “The homeowner (Petitioner) filing the complaint has the burden of proof.”, “detailed_answer”: “The homeowner must prove their case by a ‘preponderance of the evidence,’ which means they must show that their claims are more probably true than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-33-1804(A), (C) and (E) and the CC&Rs.”, “legal_basis”: “Administrative Law Standard”, “topic_tags”: [ “burden of proof”, “legal procedure”, “evidence” ] }, { “question”: “If I win my hearing against the HOA, can I get my filing fee back?”, “short_answer”: “Yes, the Administrative Law Judge can order the HOA to reimburse the filing fee.”, “detailed_answer”: “If the petitioner prevails in the hearing, the ALJ has the authority to order the Respondent (the HOA) to reimburse the filing fee paid to the Department of Real Estate.”, “alj_quote”: “IT IS FURTHER ORDERED that Respondent reimburse Petitioner’s filing fee of $1,000.00 in certified funds.”, “legal_basis”: “A.R.S. § 32-2199 et seq.”, “topic_tags”: [ “filing fees”, “remedies”, “penalties” ] }, { “question”: “How are ambiguous terms in CC&Rs interpreted?”, “short_answer”: “Words are given their natural, obvious, and ordinary meaning, and definitions within the document are prioritized.”, “detailed_answer”: “When interpreting CC&Rs, the tribunal looks at the defined terms within the document. If a term like ‘Assessment’ is specifically defined as a general charge allocated equally, that definition controls over an interpretation that would allow individual billing, unless another section specifically authorizes it.”, “alj_quote”: “Unless defined by the legislature, words in statutes are given their ordinary meanings… Each word, phrase, clause, and sentence of a statute or rule must be given meaning so that no part will be void, inert, redundant, or trivial.”, “legal_basis”: “Principles of Statutory/Contract Construction”, “topic_tags”: [ “legal interpretation”, “CC&Rs”, “definitions” ] }, { “question”: “Does the HOA have to maintain systems on my lot if the CC&Rs state they ‘shall assume responsibility’?”, “short_answer”: “Yes. If the CC&Rs state the HOA assumes responsibility for monitoring, maintenance, and repair, they must perform and pay for it.”, “detailed_answer”: “When the governing documents explicitly state the Association ‘shall assume responsibility’ for maintenance, and the costs are to be included in the general Assessments, the HOA cannot shift that financial burden back to the individual owner improperly.”, “alj_quote”: “Accordingly, the terms of the CC&Rs requires that Respondent is responsible for the maintenance of the septic systems in the Association and that the maintenance is to be paid for from the annual assessments collected by Respondent.”, “legal_basis”: “Contract Law / CC&R Enforcement”, “topic_tags”: [ “HOA obligations”, “maintenance”, “repairs” ] } ] }


Case Participants

Petitioner Side

  • Jill P. Eden-Burns (petitioner)
  • Kathryn Kendall (witness)
    Former Board Member; also referred to as Catherine Temple
  • John Krahn (witness)
    Former Board Member/Secretary; also referred to as John Cran
  • Michael Holland (witness)
    Former Board President

Respondent Side

  • Tonto Forest Estates Homeowners Association (respondent)
  • Daniel S. Francom (HOA attorney)
    Goodman Law Group
    Also referred to as Dan Frank
  • Ashley N. Moscarello (HOA attorney)
    Goodman Law Group
  • Kurt Meister (board president)
    Witness for Respondent
  • Jeanne Ackerley (board member)
    Witness for Respondent; also referred to as Jean Aly
  • Kerry Chou (board member)
    Witness for Respondent; also referred to as Carrie Shu
  • Jeremy Sykes (board member)
    Secretary; also referred to as Jeremy Sikes
  • Steve Gauer (board member)
  • Charles Kiehl (witness)
    Lot owner; testified for Respondent
  • Melissa Jordan (property manager/witness)
    Aud
  • Len Meyer (former board member)

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    OAH
    Also referred to as Tammy Igener
  • Sondra J. Vanella (ALJ)
    OAH
  • Louis Dettorre (ADRE Commissioner)
    ADRE
  • James Knupp (ADRE Commissioner)
    ADRE
    Acting Commissioner
  • Susan Nicolson (ADRE Commissioner)
    ADRE
  • c. serrano (OAH staff)
    OAH
    Transmitting Staff
  • AHansen (ADRE staff)
    ADRE
    Recipient of transmission
  • vnunez (ADRE staff)
    ADRE
    Recipient of transmission
  • djones (ADRE staff)
    ADRE
    Recipient of transmission
  • labril (ADRE staff)
    ADRE
    Recipient of transmission

Other Participants

  • Rich Orcutt (property manager)
    Focus/Ogden
    Community Manager
  • Rebecca (property manager)
    Former HOA Manager (Focus)
  • Jason Buck (former board president)

Clifford S Burnes V. Saguaro Crest Homeowners’ Association

Posted on by

Case Summary

Case ID 23F-H038-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-04-20
Administrative Law Judge Velva Moses-Thompson
Outcome partial
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

https://open.spotify.com/episode/6bAhiY5oDOMB75fCbrF53h

Decision Documents

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)

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,.

JO ANN RIPLEY vs. AGUA DOLCE HOMEOWNERS ASSOCIATION

Posted on by

Case Summary

Case ID 14F-H1414005-BFS
Agency Department of Fire, Building and Life Safety
Tribunal OAH
Decision Date 2014-09-17
Administrative Law Judge M. Douglas
Outcome no
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Jo Ann Ripley Counsel —
Respondent Agua Dulce Homeowners Association Counsel Craig Armstrong

Alleged Violations

A.R.S. § 33-1804(C) and (D)

Outcome Summary

The Administrative Law Judge found that the Petitioner failed to prove by a preponderance of the evidence that the HOA violated A.R.S. § 33-1804. The Petitioner's evidence (recordings) was inaudible, and the HOA's witnesses credibly testified that the minutes were appropriate summary minutes ratified by the Board. The case was dismissed.

Why this result: Petitioner provided inaudible recordings and could not substantiate claims that minutes were inaccurately altered.

Key Issues & Findings

Violation of Open Meeting/Minutes Statutes

Petitioner alleged the HOA Board improperly altered minutes for meetings held in Oct/Nov 2013 and published inaccurate minutes. Petitioner claimed to have recordings proving the discrepancies.

Orders: The matter is dismissed. Agua Dulce is deemed the prevailing party.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

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

Decision Documents

14F-H1414005-BFS Decision – 410541.pdf

Uploaded 2026-01-25T15:29:55 (128.8 KB)

14F-H1414005-BFS Decision – 415031.pdf

Uploaded 2026-01-25T15:29:55 (60.5 KB)

**Case Summary: Ripley v. Agua Dulce Homeowners Association**
**Case No.** 14F-H1414005-BFS
**Forum:** Arizona Office of Administrative Hearings
**Hearing Date:** September 2, 2014
**Administrative Law Judge:** M. Douglas

### **Case Overview and Main Issues**
Petitioner Jo Ann Ripley, a homeowner and former Board President of the Agua Dulce Homeowners Association (HOA), filed a petition alleging the HOA violated A.R.S. § 33-1804(C) and (D). The central legal issue was whether the HOA improperly altered previously approved Board meeting minutes and misrepresented Association actions to homeowners.

Ripley specifically alleged that the HOA removed objections, changed votes, and altered minutes regarding Board meetings held on October 30, November 5, and November 26, 2013, before publishing them on the Association’s website.

### **Key Arguments and Testimony**

**Petitioner’s Arguments:**
* Ripley testified that the published minutes omitted items discussed during meetings and added items that were not discussed.
* She claimed the minutes were inconsistent with her personal notes and recordings of the proceedings.
* During the hearing, Ripley attempted to introduce a personal audio recording of the November 26, 2013 meeting as evidence, but the recording was inaudible.

**Respondent’s Arguments:**
* **Nature of Minutes:** Linda Ware, the current Board President, and Daniel Castillo, the property manager, testified that Board minutes are intended to be "bare bones" summaries recording motions and actions, not verbatim transcripts of discussions.
* **Ratification:** The HOA argued that the Board reviewed the contested minutes before officially ratifying them.
* **Lack of Official Recordings:** Witnesses testified that the management company did not maintain a library of recordings; tapes used to draft minutes were routinely erased for reuse.
* **Withholding Evidence:** The HOA noted that Ripley refused multiple requests to provide copies of her personal recordings to the Board prior to the dispute resolution.

### **Legal Findings and Final Decision**

**Burden of Proof:**
The Administrative Law Judge (ALJ) established that the burden of proof rested on the Petitioner to prove the allegations by a "preponderance of the evidence" (more likely true than not).

**Findings:**
* The ALJ noted that the minutes in question were reviewed, approved, and ratified by the HOA Board.
* The audio recording Ripley attempted to present was inaudible and therefore failed to support her claims that the minutes were inaccurate.
* The ALJ concluded that Ripley failed to satisfy her burden of proof that the HOA violated A.R.S. § 33-1804.

**Outcome:**
* **Ruling:** The ALJ ruled in favor of Agua Dulce Homeowners Association, deeming them the prevailing party.
* **Order:** The matter was dismissed.
* **Final Certification:** As the Department of Fire, Building and Life Safety did not reject or modify the decision within the statutory timeframe, the ALJ’s decision was certified as the final administrative decision on October 24, 2014.

Case Participants

Petitioner Side

  • Jo Ann Ripley (Petitioner)
    Agua Dulce Homeowners Association
    Homeowner, former Board President, former Information Officer; appeared on own behalf

Respondent Side

  • Craig Armstrong (HOA Attorney)
    Brown Olcott, PLLC / The Brown Law Group, PLLC
    Represented Agua Dulce Homeowners Association
  • Linda Ware (Witness)
    Agua Dulce Homeowners Association
    Board President; testified regarding minutes and recordings
  • Daniel Castillo (Witness)
    Agua Dulce Homeowners Association
    Property Manager; testified regarding minutes and recordings
  • Mark Carroll (Witness)
    Agua Dulce Homeowners Association
    Former Board Member; testified regarding recording practices
  • Phil Brown (HOA Attorney)
    Brown Olcott, PLLC
    Listed on mailing list for Respondent
  • Jonathan Olcott (HOA Attorney)
    Brown Olcott, PLLC
    Listed on mailing list for Respondent

Neutral Parties

  • M. Douglas (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge
  • Gene Palma (Agency Director)
    Department of Fire, Building and Life Safety
    Director receiving the decision
  • Cliff J. Vanell (OAH Director)
    Office of Administrative Hearings
    Certified the ALJ decision
  • Joni Cage (Agency Staff)
    Department of Fire, Building and Life Safety
    Listed in mailing address for Gene Palma
  • Rosella J. Rodriguez (OAH Staff)
    Office of Administrative Hearings
    Signed the mailing certificate

Dewar, Douglas vs. Gainey Ranch Community Association

Posted on by

Case Summary

Case ID 08F-H089006-BFS
Agency Department of Fire, Building and Life Safety
Tribunal OAH
Decision Date 2009-01-28
Administrative Law Judge Michael G. Wales
Outcome none
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Douglas Dewar Counsel —
Respondent Gainey Ranch Community Association Counsel Burton T. Cohen

Alleged Violations

Section 2, Article 1(F) of the Gainey Ranch Architectural Rules
A.R.S. § 33-1804
A.R.S. § 33-1812

Outcome Summary

The ALJ dismissed the 8-count Petition against the Respondent in its entirety, finding that Respondent did not violate any of the alleged statutes or governing documents. The ALJ also denied Respondent's request for attorney's fees and Petitioner's request for filing fee reimbursement.

Why this result: Petitioner failed to establish by a preponderance of evidence that Respondent violated any provisions. Actions complained of were either committed by a non-party satellite association, were discretionary, or were legally permissible under statutes and governing documents.

Key Issues & Findings

Refusal to approve trash enclosure

Petitioner alleged Respondent refused his trash enclosure application. The ALJ found the master association (Respondent) actually approved it, while the non-party satellite association denied it.

Orders: Petition dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Improper board meeting and ballot

Petitioner alleged open meeting violations and improper balloting due to lack of notice. The ALJ noted that under A.R.S. § 33-1804(C), failure of a member to receive actual notice does not invalidate board actions.

Orders: Petition dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1804(C)

Improper recording of amendment

Petitioner claimed an amendment was invalid because there was no physical meeting. The ALJ found that A.R.S. § 33-1812 permits voting by written ballot or other form of delivery.

Orders: Petition dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1812

Decision Documents

08F-H089006-BFS Decision – 206818.pdf

Uploaded 2026-03-21T19:23:22 (120.0 KB)





Briefing Doc – 08F-H089006-BFS


Administrative Law Judge Decision: Dewar v. Gainey Ranch Community Association

Executive Summary

This briefing document summarizes the administrative law judge (ALJ) decision in Case No. 08F-H089006-BFS, involving Douglas Dewar (Petitioner) and the Gainey Ranch Community Association (Respondent). The Petitioner filed an eight-count petition alleging that the Respondent violated various statutes and governing documents regarding the disapproval and enforcement of a trash container enclosure at his residence.

Following a formal hearing on January 22, 2009, the ALJ dismissed the petition in its entirety. The decision clarifies the distinct legal roles of master and satellite associations, the discretionary nature of advisory council referrals, and the validity of board actions despite notice failures. Additionally, the ruling establishes that administrative hearings do not constitute “actions” for the purposes of awarding attorney fees under specific Arizona statutes.

Parties and Governance Structure

The dispute involves complex relationships between multiple governing entities and their respective rules:

• Respondent (Master Association): Gainey Ranch Community Association is a master homeowners association in Scottsdale, Arizona, governed by Bylaws, Articles of Incorporation, and the Master Declaration (CC&Rs).

• Satellite Associations: Nineteen separate legal entities exist within the boundaries of the Master Association. These satellites have their own boards of directors and architectural committees.

• Respondent’s Dual Role: In addition to its role as the master association, the Respondent acts as the property management vendor for the satellite associations, charged with advising owners of violations and enforcing satellite-specific rules.

• Petitioner: Douglas Dewar is a member of both the Master Association and the “Golf Villas” satellite association.

Detailed Analysis of the Eight-Count Petition

The Petitioner’s claims were categorized into eight distinct counts, all of which were found to be without merit based on the evidence provided.

Architectural Approvals and Appeals (Counts 1, 2, and 4)

The core of the dispute originated from the disapproval of the Petitioner’s application to install a trash bin enclosure.

• Approval Authority: The Petitioner alleged the Respondent refused his application. However, evidence showed the Respondent (Master Association) actually approved it. The refusal came from the Golf Villas satellite association, which was not a party to the action.

• Deemed Approved Rule: Petitioner argued that a lack of written decision within three days meant the application was “deemed approved.” The ALJ ruled that since the Master Association did approve it, and the satellite association was not a party to the case, no violation could be found against the Respondent.

• Neighbor Complaints vs. Appeals: Petitioner claimed he was not notified of an “appeal” by a neighbor. The ALJ determined that an email from a neighbor’s attorney demanding enforcement did not constitute a formal “appeal” under the architectural rules, thus no notification or right to be present at the subsequent board meeting was required.

Enforcement and Managerial Duties (Counts 5 and 6)

The Petitioner challenged the Respondent’s authority to demand the removal of the enclosure and the storage of trash cans in his garage.

• Representation of Satellite Interests: The ALJ found that the Respondent was acting in its capacity as the property manager for Golf Villas. Because the satellite association had denied the application, the Respondent was properly exercising its duty to enforce the satellite’s rules on their behalf.

Procedural and Advisory Mandates (Count 3)

The Petitioner alleged the Board failed to refer a conflict to the “Council of Presidents.”

• Discretionary Referral: The ALJ noted that while the Council of Presidents exists to consider conflicts between the master and satellite associations, the Master Declaration makes such referrals discretionary. Furthermore, the meeting between boards was deemed a coordination of enforcement rather than a conflict requiring advisory intervention.

Meeting Validity and Voting Procedures (Counts 7 and 8)

The Petitioner challenged the validity of an amendment to the Master Declaration and the use of written ballots.

• Notice Failures: While a previous ruling found the Respondent failed to give notice for an emergency meeting on March 22, 2007, the ALJ cited A.R.S. § 33-1804(C), which states that the failure of a member to receive notice does not affect the validity of actions taken at that meeting.

• Written Ballots and Physical Presence: The Petitioner argued that amendments required physical meetings and in-person voting. The ALJ dismissed this, noting that neither the governing documents nor Arizona statutes (specifically A.R.S. § 33-1812) prohibit voting by written ballot or require physical presence for such elections.

Legal Conclusions and Statutory Interpretations

Statutory/Legal Point

Ruling/Interpretation

Jurisdiction

The Office of Administrative Hearings has statutory authority to hear disputes between members and planned communities per A.R.S. § 41-2198.02.

Burden of Proof

The Petitioner carries the burden of proof by a preponderance of the evidence (A.A.C. R2-19-119).

A.R.S. § 33-1804(C)

Failure to provide notice for a board meeting does not invalidate the decisions or actions resulting from that meeting.

A.R.S. § 33-1812

Associations are permitted to provide for voting by “some other form of delivery” (written ballot), and physical meetings for voting are not mandatory unless explicitly required by governing documents.

Attorney Fees

Administrative proceedings are not considered “actions” under A.R.S. §§ 33-1807(H) or 12-341.01; therefore, prevailing parties cannot recover attorney fees.

Final Order

Administrative Law Judge Michael G. Wales issued the following orders on January 28, 2009:

1. Dismissal: The petition against Gainey Ranch Community Association, Inc. was dismissed in its entirety.

2. Attorney Fees: The Respondent’s request for attorney fees was denied.

3. Filing Fees: The Petitioner, not being the prevailing party, was not entitled to reimbursement of filing fees.

4. Finality: This order constitutes the final administrative decision, with no provision for a rehearing, though it remains subject to judicial review within 35 days.






Study Guide – 08F-H089006-BFS


Study Guide: Douglas Dewar vs. Gainey Ranch Community Association

This study guide provides a comprehensive review of the administrative law case between Douglas Dewar and the Gainey Ranch Community Association (No. 08F-H089006-BFS). It examines the legal relationships between master and satellite homeowners associations, the interpretation of governing documents, and the application of Arizona statutes regarding community meetings and voting.

Section I: Short-Answer Quiz

Instructions: Answer the following questions in two to three sentences based on the provided administrative record.

1. Who are the primary parties in this case, and what is the central issue of the dispute?

2. What is the legal relationship between the Gainey Ranch Community Association and its satellite sub-associations?

3. Why did the Administrative Law Judge (ALJ) rule that the Respondent did not violate architectural rules regarding the denial of the Petitioner’s application in Count 1?

4. According to the findings in Count 2, why was the email from attorney Kent Berk not considered a violation of the notification rules?

5. What is the function of the “Council of Presidents,” and why was its non-use not considered a violation in Count 3?

6. How does A.R.S. § 33-1804(C) impact the validity of board meetings held without member notice?

7. In what capacity was the Gainey Ranch Community Association acting when it demanded the removal of the Petitioner’s trash enclosure?

8. What was the Petitioner’s argument regarding the physical presence of members during the amendment voting process, and how did the ALJ respond?

9. What is the “preponderance of evidence,” and how did it apply to this hearing?

10. Why was the Respondent denied an award for attorney’s fees despite prevailing in the case?

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Section II: Answer Key

1. Parties and Dispute: The Petitioner is Douglas Dewar, and the Respondent is the Gainey Ranch Community Association. The dispute arose over the Petitioner’s enclosure of his trash bins outside his residence and the subsequent enforcement actions taken by the association.

2. Organizational Relationship: Gainey Ranch is a master homeowners association containing 19 satellite sub-associations, such as the Golf Villas. These satellites are separate legal entities with their own boards of directors and architectural committees, though the master association acts as their property management vendor.

3. Count 1 Determination: The ALJ found that the Respondent (the master association) actually approved the Petitioner’s application. The denial came from the Golf Villas satellite association, which was not a party to the action, and the tribunal had no authority to order the satellite association to abide by architectural rules.

4. Count 2 (Email Notification): The architectural rules require immediate notification only if a decision is formally appealed by an aggrieved owner. The ALJ determined that the email sent by the neighbor’s attorney was a demand for enforcement, not a formal appeal of an Architectural Committee decision, rendering the notification rule inapplicable.

5. Council of Presidents: The Council of Presidents is an advisory group designed to consider and make recommendations on conflicts between the master and satellite associations. The ALJ ruled that referral to this group is discretionary rather than mandatory under the Master Declaration.

6. Meeting Validity: A.R.S. § 33-1804(C) states that the failure of any member to receive actual notice of a board meeting does not affect the validity of any action taken at that meeting. This meant the decisions made during the March 22, 2007, emergency meeting remained legally binding despite the lack of notice.

7. Enforcement Capacity: The Respondent was acting as the property management vendor for the Golf Villas satellite association. In this role, it was charged with advising owners of rule violations and enforcing the satellite association’s specific rules on its behalf.

8. Physical Presence and Voting: The Petitioner contended that amendments required an election where members were physically present. The ALJ dismissed this, noting that neither the governing documents nor Arizona law (A.R.S. § 33-1812) prohibit the use of written ballots or require physical presence for such votes.

9. Standard of Proof: The preponderance of evidence is the legal standard where the Petitioner must prove that their claims are more likely true than not. In this matter, the ALJ concluded that the Petitioner failed to meet this burden of proof for any of the eight counts alleged.

10. Attorney’s Fees: The request for fees was denied because an administrative proceeding is not considered an “action” under Arizona law (A.R.S. §§ 33-1807(H) or 12-341.01). Legal precedent (Semple v. Tri-City Drywall, Inc.) establishes that attorney’s fees are not awardable in these specific administrative hearings.

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Section III: Essay Questions

Instructions: Use the case details to formulate comprehensive responses to the following prompts.

1. The Interplay of Master and Satellite Associations: Discuss the complexities of enforcement and legal liability when a master association serves as the property manager for a satellite association. Use the ALJ’s findings regarding Counts 1, 5, and 6 to support your analysis.

2. Due Process in Planned Communities: Evaluate the Petitioner’s claims regarding the March 22, 2007, emergency meeting. Contrast the “Open Meeting law” requirements with the protections offered to the association by A.R.S. § 33-1804(C).

3. Interpretation of Governing Documents: Analyze how the ALJ distinguished between mandatory and discretionary actions within the Gainey Ranch Governing Documents, specifically focusing on the Council of Presidents and the architectural appeal process.

4. Modernizing Association Governance: Examine the Petitioner’s challenge to the amendment process. Discuss the legal and practical implications of allowing written ballots versus requiring physical meetings for association-wide decisions.

5. The Scope of Administrative Hearings: Based on the Conclusions of Law and the final Order, explain the limits of the Office of Administrative Hearings’ authority, particularly regarding non-parties and the awarding of legal costs.

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Section IV: Glossary of Key Terms

• A.R.S. § 33-1804: The Arizona Revised Statute governing open meetings for planned communities, including provisions for emergency meetings and notice requirements.

• A.R.S. § 33-1812: The Arizona Revised Statute that allows for association voting to be conducted via written ballot or other forms of delivery rather than strictly through physical meetings.

• Administrative Law Judge (ALJ): A judge who conducts hearings and issues decisions in disputes involving state agencies or specific statutory petitions; in this case, Judge Michael G. Wales.

• CC & Rs: An abbreviation for the “Amended and Restated Declaration of Covenants, Conditions, Restrictions Assessments, Charges, Servitudes, Liens, Reservations and Easements.”

• Council of Presidents: An advisory group within the Gainey Ranch Community Association tasked with recommending solutions for conflicts between the master association and satellite associations.

• Deemed Approved: A provision in the architectural rules stating that if committees do not provide a written decision within three working days of a written request for an immediate decision, the application is automatically approved.

• Governing Documents: The collective set of rules including Bylaws, Articles of Incorporation, and CC & Rs that contractually bind members of a homeowners association.

• Master Association: An umbrella homeowners association (Gainey Ranch) that encompasses several smaller, separate legal entities known as satellite associations.

• Preponderance of the Evidence: The standard of proof in civil and administrative cases, requiring that the Petitioner prove their case is more likely than not to be true.

• Satellite Sub-association: A separate legal entity (such as Golf Villas) located within the boundaries of a master association, having its own board and rules.






Blog Post – 08F-H089006-BFS


The HOA Trash Bin Battle: Navigating the Legal Minefield of Nested Associations

The Hook: A Homeowner’s Nightmare Few things are as visceral to a homeowner as the frustration of a property modification dispute. What begins as a simple request to improve one’s home can quickly spiral into a multi-year legal quagmire. For Douglas Dewar, a resident of the Gainey Ranch community in Scottsdale, the desire to enclose his trash bins outside his residence led to an exhaustive eight-count administrative petition before the Office of Administrative Hearings (OAH). The case of Douglas Dewar vs. Gainey Ranch Community Association is a masterclass in the complexities of modern homeowners association (HOA) hierarchies and a warning that winning a procedural point does not always mean winning the war.

Takeaway 1: The “Nested” Association Trap Strategic homeowners must understand that large planned communities are rarely monolithic. Gainey Ranch is a “master” association encompassing 19 separate satellite sub-associations, such as “Golf Villas.” While Dewar was a member of both, they are distinct legal entities. Dewar’s case faltered largely because he sued the Master Association for a denial issued by the Golf Villas satellite association.

Before filing a petition, homeowners must perform a title search or a rigorous review of their CC&Rs to identify every governing layer. Suing the Master Association for a sub-association’s decision creates an immediate legal “shield” for the respondent. As the court noted, the Petitioner was:

Takeaway 2: The Notice Paradox (When a Violation Isn’t a Veto) In a previous iteration of this dispute, an administrative law judge confirmed that the Master Association had indeed violated governing documents by holding an “emergency board meeting” in 2007 without notice. However, under A.R.S. § 33-1804(C), this victory was legally toothless. The statute specifies that the failure of a member to receive notice “does not affect the validity of any action taken at that meeting.”

This creates a significant hurdle: you can be “right” about the law being broken, but the board’s decision (in this case, to enforce the trash bin rules) remains valid. For the strategic homeowner, this means procedural errors are rarely a “get out of jail free” card.

Takeaway 3: The Master HOA as a “Double Agent” The case highlights a common but confusing administrative structure where the Master Association acts as the “property management vendor” for its own satellites. While this setup offers administrative efficiency—centralizing billing and vendor management—it creates a due process nightmare for residents.

In Dewar’s case, the Master Association was acting as an agent on behalf of the Golf Villas board. This dual role allows the Master Association to enforce rules it did not technically create. The court featured a crucial footnote clarifying that the Respondent was the:

Takeaway 4: The “Deemed Approved” Deadline is Fragile Dewar attempted to invoke the 3-day “deemed approved” rule in the Gainey Ranch Architectural Rules, arguing that the lack of a timely written decision should have granted him automatic approval. However, the architecture of the rule requires both the Master and Satellite committees to fail to respond.

In this instance, the Master Association actually did approve the application. The barrier was the Satellite (Golf Villas), which issued a denial. Because the Satellite was not a party to the lawsuit, the Master Association could not be held liable for the sub-association’s decision. This underscores the necessity of knowing exactly which committee’s clock is ticking and ensuring every relevant entity is named in a legal challenge.

Takeaway 5: The Modernization of Board Power Petitioner Dewar challenged an amendment to the master declaration because it was conducted via mailed ballots without a physical meeting. The court dismissed this, citing A.R.S. § 33-1812, which permits “voting by some other form of delivery.”

This modernization is a powerful tool for boards. In this case, the amendment was specifically designed to clarify that “satellite associations may enact their own separate and distinct rules” regarding trash bins. By securing the power to vote remotely, the board effectively cemented the “Nested Trap,” making it easier to pass rules that empower sub-associations without the logistical hurdle of a physical quorum.

Takeaway 6: The “Action” vs. “Hearing” Fee Gap In a surprising financial twist, the Master Association was denied recovery of its attorney’s fees despite winning on every count. The Administrative Law Judge (ALJ) distinguished between a court “action” and an “administrative proceeding.” Under Conclusion of Law #5 and A.R.S. § 33-1807(H), fees are often not awardable in these venues.

Specifically, the judge cited A.R.S. § 12-341.01 and case law (Semple v. Tri-City Drywall), noting that an OAH hearing is not an “action” in the judicial sense. This represents a double-edged sword: while it reduces the financial risk for a homeowner filing a petition, it also means that even a successful defense by an association becomes a “sunk cost” for the community.

Closing: The Price of Complexity The Administrative Law Judge ultimately dismissed Douglas Dewar’s petition in its entirety, leaving the trash bin enclosure prohibited. The case serves as a stark reminder that in a multi-tiered HOA system, the homeowner is often fighting a hydra; cutting off one head (the Master Association) does not stop the body (the Satellite Association) from enforcing its rules.

As communities continue to adopt these complex, “nested” management structures, we must ask: Is the administrative efficiency of centralized management worth the legal opacity and procedural frustration it creates for the individual homeowner?


Case Participants

Petitioner Side

  • Douglas Dewar (Petitioner)
    Golf Villas; Gainey Ranch Community Association
    Member of both master and satellite associations

Respondent Side

  • Burton T. Cohen (Attorney)
    Burton T. Cohen, P.C.
    Attorney for Respondent
  • Fed Thielen (Executive Director)
    Gainey Ranch Community Association
    Executive Director at the time of the dispute

Neutral Parties

  • Michael G. Wales (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge
  • Paul Carter (Board President)
    Golf Villas Community Association
    President of satellite association Golf Villas (non-party)
  • Brian Tulley (ALJ)
    Office of Administrative Hearings
    Presided over a previous hearing regarding the March 22, 2007 meeting
  • Kent Berk (Attorney)
    Attorney representing one of Petitioner's neighbors
  • Robert Barger (Agency Official)
    Department of Fire, Building and Life Safety
    H/C listed on certificate of service
  • Debra Blake (Agency Official)
    Department of Fire, Building and Life Safety
    Listed on certificate of service

Dewar, Douglas -v- Gainey Ranch Community Association

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Case Summary

Case ID 08F-H088002-BFS
Agency Department of Fire, Building and Life Safety
Tribunal OAH
Decision Date 2008-04-28
Administrative Law Judge Brian Brendan Tully
Outcome yes
Filing Fees Refunded $550.00
Civil Penalties $150.00

Parties & Counsel

Petitioner Douglas Dewar Counsel —
Respondent Gainey Ranch Community Association Counsel Burton T. Cohen

Alleged Violations

A.R.S. § 33-1804(A)

Outcome Summary

The ALJ ruled in favor of the Petitioner, finding that the HOA violated open meeting statutes by holding an emergency meeting without notice. The evidence did not support the HOA's claim that emergency circumstances required action before notice could be given.

Key Issues & Findings

Failure to provide notice of board meeting

The Respondent held an emergency board meeting on March 22, 2007, without notice to members, to discuss enforcing a satellite association's decision regarding the Petitioner's trash bin enclosure. The ALJ found that no emergency circumstances existed to justify the lack of notice under A.R.S. § 33-1804(C), and the board did not seek legal advice during the meeting to justify executive session or confidentiality.

Orders: Respondent ordered to comply with A.R.S. § 33-1804(C) in the future by only conducting emergency meetings without notice when legitimate emergency circumstances exist; Respondent ordered to refund $550.00 filing fee and pay $150.00 civil penalty.

Filing fee: $550.00, Fee refunded: Yes, Civil penalty: $150.00

Disposition: petitioner_win

Cited:

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

Decision Documents

08F-H088002-BFS Decision – 189916.pdf

Uploaded 2026-01-25T15:21:32 (88.6 KB)





Briefing Doc – 08F-H088002-BFS


Administrative Decision Brief: Dewar v. Gainey Ranch Community Association

Executive Summary

This briefing document summarizes the administrative decision rendered by the Office of Administrative Hearings (OAH) in the matter of Douglas Dewar v. Gainey Ranch Community Association (No. 08F-H088002-BFS). The case centers on a dispute regarding the legality of an “emergency” board meeting conducted by the Gainey Ranch Community Association on March 22, 2007.

The Administrative Law Judge (ALJ) determined that the Association violated Arizona Revised Statutes (A.R.S. § 33-1804) by holding a meeting without notice to its members under the guise of an emergency. The ALJ found no credible evidence that a true emergency existed or that the board met to discuss protected legal matters. Consequently, the Association was ordered to reimburse the Petitioner’s filing fees and pay a civil penalty to the Department of Fire, Building and Life Safety.

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Parties and Governance

The dispute involves specific entities and governing structures within a planned community:

• Petitioner: Douglas Dewar, a member of both the Gainey Ranch Community Association and the Golf Villas satellite association.

• Respondent: Gainey Ranch Community Association, a master homeowners association located in Scottsdale, Arizona.

• Organizational Structure: The Respondent oversees 19 satellite sub-associations, each with its own board of directors and architectural committees.

• Governing Documents: The Association is governed by its Bylaws, Articles of Incorporation, and the Amended and Restated Declaration of Covenants, Conditions, Restrictions Assessments, Charges, Servitudes, Liens, Reservations and Easements (CC&Rs), alongside applicable state statutes.

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Background of the Dispute

The conflict originated in 2007 from a disagreement involving the Petitioner, the Golf Villas satellite association, and another member regarding the Petitioner’s enclosure of trash bins outside his residence.

The March 22, 2007 Meeting

On March 22, 2007, the Respondent’s board of directors held an emergency meeting immediately following a session with the Golf Villas board.

• Lack of Notice: The meeting was conducted without providing notice to the Association’s membership.

• Purpose: The board discussed a request from the Golf Villas board to enforce a January 23, 2007, decision prohibiting the Petitioner’s trash container enclosure.

• Outcome: The board instructed its executive director to begin the enforcement process against the Petitioner.

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Findings of Fact and Evidence

The ALJ’s decision was based on several critical findings regarding the Association’s conduct and the lack of justification for bypassing notice requirements:

• Absence of “Emergency” Provisions: The Association’s own Governing Documents contain no provisions allowing the board to conduct emergency meetings without prior notice.

• Failure of the “Legal Advice” Defense: Although Respondent’s counsel was present, the meeting minutes do not reflect that the board entered an executive session to obtain legal advice or discuss pending/contemplated litigation.

• Insufficient Justification: While the Association’s executive director claimed another member had threatened legal action, the minutes did not reflect any discussion of such threats.

• Lack of Urgency: The ALJ noted that the board’s decision—to simply direct an executive director to commence an enforcement process—indicated that “time was not of the essence.” There was no credible evidence that the board could not have provided notice within the standard statutory or governing timeframe.

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Conclusions of Law

The OAH identified specific statutory violations committed by the Respondent:

Statute Cited

Requirement / Violation

A.R.S. § 33-1804(A)

Board meetings must be open to members with proper notice. The Respondent violated this by failing to prove the meeting was held for protected reasons (e.g., legal advice or litigation).

A.R.S. § 33-1804(C)

Notice is only waived if “emergency circumstances require action by the board before notice can be given.” The ALJ concluded no such circumstances existed.

A.A.C. R2-19-119

Established that the Petitioner held the burden of proof by a preponderance of the evidence, which the ALJ determined was met.

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Final Order and Penalties

The ALJ ruled in favor of the Petitioner, designating him the prevailing party. The following orders were issued:

1. Future Compliance: The Respondent must comply with A.R.S. § 33-1804(C) in the future, conducting emergency meetings only when legitimate emergency circumstances exist.

2. Reimbursement of Fees: The Respondent was ordered to pay the Petitioner $550.00 to cover the filing fee paid to the Department.

3. Civil Penalty: The Respondent was ordered to pay a $150.00 civil penalty to the Department of Fire, Building and Life Safety.

Finality of Decision: Per A.R.S. § 41-2198.04(A), this order is the final administrative decision and is not subject to a request for rehearing. It is enforceable through contempt of court proceedings.






Study Guide – 08F-H088002-BFS


Study Guide: Dewar v. Gainey Ranch Community Association

This study guide provides a comprehensive review of the administrative law case Douglas Dewar vs. Gainey Ranch Community Association (No. 08F-H088002-BFS). The case examines the legal requirements for homeowners’ association board meetings, specifically focusing on the criteria for “emergency” meetings conducted without notice to the membership.

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Short-Answer Quiz

Instructions: Answer the following questions in 2–3 sentences based on the facts and legal conclusions provided in the source context.

1. Who are the primary parties involved in this case and what is their relationship?

2. What are the primary “Governing Documents” that regulate the Gainey Ranch Community Association?

3. What specific event or dispute triggered the emergency board meeting on March 22, 2007?

4. How did the Administrative Law Judge (ALJ) limit the scope of the hearing after reviewing the original Petition?

5. What does A.R.S. § 33-1804(C) dictate regarding notice for board meetings in emergency circumstances?

6. Why did the ALJ find the minutes of the March 22, 2007, meeting to be insufficient evidence of an emergency?

7. What was the burden of proof required for the Petitioner in this matter?

8. Under A.R.S. § 33-1804(A), what are two valid reasons a board might meet without standard notice that were analyzed in this case?

9. What was the final ruling regarding the $550.00 filing fee?

10. According to the final order, what civil penalty was assessed against the Respondent, and to whom must it be paid?

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Answer Key

1. Who are the primary parties involved in this case and what is their relationship? The Petitioner is Douglas Dewar, a resident and member of both the Gainey Ranch Community Association (the master association) and the Golf Villas satellite association. The Respondent is the Gainey Ranch Community Association, which functions as the master homeowners association for 19 satellite sub-associations in Scottsdale, Arizona.

2. What are the primary “Governing Documents” that regulate the Gainey Ranch Community Association? The association is governed by its Bylaws, the Articles of Incorporation, and the Amended and Restated Declaration of Covenants, Conditions, Restrictions Assessments, Charges, Servitudes, Liens, Reservations and Easements (CC&Rs). Additionally, the association must adhere to applicable state statutes for planned communities.

3. What specific event or dispute triggered the emergency board meeting on March 22, 2007? The dispute began in 2007 when Petitioner Douglas Dewar enclosed his trash bins outside his residence, leading to a conflict with the Golf Villas Satellite association and another member. The emergency meeting was called specifically to discuss the Golf Villas’ request for the master association to enforce a decision against Dewar’s enclosure.

4. How did the Administrative Law Judge (ALJ) limit the scope of the hearing after reviewing the original Petition? The ALJ determined that the Petitioner’s original filing contained more than a single alleged violation. Consequently, the ALJ issued an order dismissing all alleged violations except for the first one listed, which concerned the legality of the emergency board meeting.

5. What does A.R.S. § 33-1804(C) dictate regarding notice for board meetings in emergency circumstances? This statute provides that notice to members is not required if emergency circumstances require board action before notice can be given. However, the law also notes that a member’s failure to receive actual notice does not necessarily invalidate actions taken at such a meeting.

6. Why did the ALJ find the minutes of the March 22, 2007, meeting to be insufficient evidence of an emergency? The minutes failed to state a specific reason for the emergency or reflect any discussion regarding potential legal actions or litigation. Furthermore, the minutes showed the board did not enter into an executive session to seek legal advice, suggesting time was not of the essence.

7. What was the burden of proof required for the Petitioner in this matter? Pursuant to A.A.C. R2-19-119, the Petitioner held the burden of proof to demonstrate the association’s violation. The required standard of proof was a “preponderance of the evidence.”

8. Under A.R.S. § 33-1804(A), what are two valid reasons a board might meet without standard notice that were analyzed in this case? The board may meet to seek legal advice from its counsel (A.R.S. § 33-1804(A)(1)) or to discuss pending or contemplated litigation (A.R.S. § 33-1804(A)(2)). In this case, the ALJ found no credible evidence that either of these circumstances occurred during the 20-minute meeting.

9. What was the final ruling regarding the $550.00 filing fee? Because the Petitioner was deemed the prevailing party and sustained his burden of proof, the ALJ ordered the Respondent to reimburse the Petitioner. The Respondent was required to pay Dewar the $550.00 filing fee within 30 days of the order.

10. According to the final order, what civil penalty was assessed against the Respondent, and to whom must it be paid? The ALJ imposed a civil penalty of $150.00 against the Gainey Ranch Community Association. This penalty was ordered to be paid to the Arizona Department of Fire, Building and Life Safety within 30 days.

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Essay Questions

1. The Definition of “Emergency”: Analyze the ALJ’s reasoning for determining that no “true emergency” existed in the Dewar case. Discuss how the nature of the dispute—a trash bin enclosure—influenced the finding that time was not of the essence.

2. Transparency and Notice in Planned Communities: Using the Gainey Ranch case as a model, discuss the importance of member notice requirements under A.R.S. § 33-1804. What are the potential consequences for a community association that fails to adhere to these transparency standards?

3. The Role of Minutes as Legal Record: Evaluate how the documentation (or lack thereof) in board meeting minutes can determine the outcome of an administrative hearing. How did the specific omissions in the March 22, 2007, minutes undermine the Respondent’s legal defense?

4. Hierarchy of Governance: Describe the relationship between Satellite associations and Master associations as depicted in the source. How does the master association’s attempt to enforce a satellite board’s decision illustrate the procedural complexities of these organizations?

5. Administrative Enforcement and Remedies: Discuss the authority of the Office of Administrative Hearings and the Department of Fire, Building and Life Safety in resolving HOA disputes. Assess whether the remedies provided (reimbursement and civil penalties) serve as an effective deterrent against future statutory violations.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

A judicial officer who presides over administrative hearings, makes findings of fact, and issues legal conclusions and orders.

A.R.S. § 33-1804

The Arizona Revised Statute governing board meetings and notice requirements for planned communities.

Burden of Proof

The obligation of a party (in this case, the Petitioner) to provide enough evidence to support their claim.

Covenants, Conditions, and Restrictions; the legal documents that outline the rules and guidelines for a planned community.

Executive Session

A portion of a meeting that is closed to the general membership, typically used to discuss confidential matters like legal advice or litigation.

Master Association

An overarching homeowners association that governs a large development, often containing multiple smaller “satellite” sub-associations.

Petition

The formal written request or complaint filed by a member to initiate a legal proceeding against an association.

Preponderance of the Evidence

The standard of proof in civil and administrative cases, meaning that a claim is more likely to be true than not true.

Prevailing Party

The party in a lawsuit or hearing that successfully wins the case or achieves the desired legal outcome.

Satellite Association

A smaller sub-association within a larger master planned community that maintains its own board and committees.






Blog Post – 08F-H088002-BFS


The $700 Trash Bin: Why Your HOA Can’t Just Call an “Emergency” Meeting

In the manicured enclaves of Scottsdale’s Gainey Ranch, a dispute over a simple trash bin enclosure recently evolved from a neighborhood disagreement into a definitive legal lesson on the limits of board power. What began as Douglas Dewar’s attempt to shield his refuse containers from view ended in a formal hearing before an Administrative Law Judge.

The case, Dewar v. Gainey Ranch Community Association, highlights a recurring tension in common-interest developments: the board’s desire for efficiency versus the homeowner’s right to transparency. When the Gainey Ranch board tried to bypass statutory notice requirements by draping their actions in the “emergency” flag, they didn’t just lose the argument—they handed homeowners a roadmap for holding boards accountable to the letter of the law.

“Emergency” is a Legal Term, Not a Convenience

On March 22, 2007, the Gainey Ranch Community Association board convened what they termed an “emergency” meeting. This session took place immediately following a meeting with the board of the Golf Villas—one of 19 “Satellite” sub-associations within the Gainey Ranch master community. The Master HOA board essentially decided to act as the “muscle” for the sub-association, meeting without notice to the membership to authorize the enforcement of a Golf Villas decision against Mr. Dewar.

In the world of HOA governance, boards often treat “emergency” as a convenient procedural cloaking device to handle sensitive or annoying topics away from prying eyes. However, under A.R.S. § 33-1804(C), an emergency is a narrow legal fiction. It requires that circumstances be so dire that action must be taken before a standard notice can be issued. Administrative Law Judge Brian Brendan Tully was unimpressed by the board’s urgency. Given that the meeting lasted a mere 20 minutes and concerned a pre-existing architectural dispute, the judge found no evidence that time was “of the essence.”

The Paper Trail (or Lack Thereof) is Your Evidence

When a board attempts a calculated end-run around transparency, their own minutes usually become the “smoking gun.” In this instance, Gainey Ranch argued that the meeting was a legitimate emergency because they needed to obtain legal advice regarding potential litigation from another member.

But a board cannot simply claim “legal advice” to justify a closed-door session; they must follow a specific protocol to enter an “executive session.” The Gainey Ranch board failed to record any such transition in their documentation. Because the minutes lacked specific details regarding the nature of the emergency or any discussion of pending litigation, the board’s defense was rendered non-credible. As the Judge’s decision explicitly stated:

The High Cost of Procedural Shortcuts

While some boards view procedural errors as “no harm, no foul” technicalities, the financial reality of this case suggests otherwise. Petitioner Douglas Dewar secured a judgment that, while seemingly modest, represents a total loss for the association’s management strategy.

The legal shortcut ended up costing the association:

• $550 Filing Fee Reimbursement: The association was ordered to pay back the full cost of Mr. Dewar’s petition to the Department.

• $150 Civil Penalty: A fine assessed by the Judge to be paid by the association to the Department for the statutory violation.

It is important to remember that these figures are only the tip of the iceberg. The association also had to pay for the services of their own attorney, Burton T. Cohen, to defend the board’s behavior through the hearing process. For a 20-minute “emergency” meeting about a trash bin, the total bill for the community was likely thousands of dollars in wasted resources.

The Counter-Intuitive Reality of A.R.S. § 33-1804(C)

For homeowners, this case provides a sobering insight into the “double-edged sword” of Arizona HOA law. In Conclusion of Law #8, the Judge pointed out a frustrating reality found in A.R.S. § 33-1804(C): the failure of a member to receive notice of a meeting does not automatically invalidate the actions taken at that meeting.

This creates a high-stakes irony for those challenging their associations. Mr. Dewar successfully proved that the board broke the law, forced them to pay penalties, and exposed their procedural failures. Yet, because of the way the statute is written, the underlying decision made during that illegal meeting—to enforce the rules against his trash enclosure—could still stand. It is a reminder that while you can win the battle for transparency, the law often preserves the board’s ultimate authority to govern, even when they do so poorly.

Conclusion

The $700 trash bin case serves as a warning that transparency is a statutory mandate, not a courtesy. The Gainey Ranch board’s attempt to use an “emergency” designation to bypass their own members resulted in a public rebuke and unnecessary financial loss.

For residents, the lesson is clear: the minutes are your most powerful tool. By scrutinizing how and when meetings are called, homeowners can ensure their boards aren’t taking shortcuts to avoid oversight. Is your association acting with the transparency the law requires, or are they one “emergency” away from a costly day in court?


Case Participants

Petitioner Side

  • Douglas Dewar (Petitioner)
    Golf Villas Satellite association
    appeared personally

Respondent Side

  • Burton T. Cohen (Attorney for Respondent)
    Gainey Ranch Community Association

Neutral Parties

  • Brian Brendan Tully (Administrative Law Judge)
    Office of Administrative Hearings
  • Robert Barger (Director)
    Department of Fire, Building and Life Safety
    Recipient of order transmission
  • Debra Blake (Agency Staff)
    Department of Fire, Building and Life Safety
    Recipient of order transmission

Waugaman, Nancy -v- Troon Village Master Associaton

Posted on by

Case Summary

Case ID 07F-H067029-BFS
Agency Department of Fire, Building and Life Safety
Tribunal Office of Administrative Hearings
Decision Date 2007-08-13
Administrative Law Judge Michael K. Carroll
Outcome partial
Filing Fees Refunded $2,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Nancy Waugaman Counsel —
Respondent Troon Village Master Association Counsel Carrie Smith and Jason Smith

Alleged Violations

A.R.S. §33-1804(C)
A.R.S. §33-1804(A)
Declaration Section 11.02; Section 14.01
A.R.S. §33-1805

Outcome Summary

The ALJ vacated the Board's Resolution which interpreted the Declaration's amendment provision (Section 11.02) to require only 80% of voting members present rather than 80% of total membership. Consequently, amendments passed under this new interpretation were vacated. Claims regarding open meeting notice and records formats were denied, but Petitioner was awarded full reimbursement of filing fees.

Key Issues & Findings

Failure to provide notice of executive session

Petitioner argued the Board failed to notice an executive session held prior to a regular meeting.

Orders: ALJ found no statutory or governing document requirement to notice executive sessions.

Filing fee: $500.00, Fee refunded: Yes

Disposition: respondent_win

Improper subject matter for executive session

Petitioner alleged the Resolution regarding voting interpretation should have been discussed in an open meeting.

Orders: ALJ found the discussion involved legal advice regarding pending litigation, which is permitted in closed session.

Filing fee: $500.00, Fee refunded: Yes

Disposition: respondent_win

Invalid interpretation of voting requirements

Board passed a resolution interpreting '80% of total voting power' to mean 80% of votes cast at a meeting, then passed amendments under this lower threshold.

Orders: The Board's Resolution and all subsequent Declaration amendments were vacated.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Denial of records in workable format

Petitioner requested mailing list in label format; Respondent initially provided spreadsheet.

Orders: ALJ found no violation as records were made available.

Filing fee: $500.00, Fee refunded: Yes

Disposition: respondent_win

Decision Documents

07F-H067029-BFS Decision – 173903.pdf

Uploaded 2026-01-25T15:20:25 (120.2 KB)





Briefing Doc – 07F-H067029-BFS


Administrative Law Judge Decision: Waugaman v. Troon Village Master Association

Executive Summary

This briefing document summarizes the findings and legal conclusions from the Office of Administrative Hearings (Case No. 07F-H067029-BFS) regarding a dispute between Nancy Waugaman (Petitioner) and the Troon Village Master Association (Respondent).

The core of the dispute involved a Board resolution passed in October 2006 that fundamentally altered the voting requirements for amending the Association’s Declaration of Covenants, Conditions and Restrictions (CC&Rs). By “interpreting” the Declaration’s requirement for an 80% affirmative vote of the total voting power to mean 80% of those voting at a meeting where a quorum is present, the Board lowered the threshold for amendments from 1,058 votes to as few as 106 votes.

The Administrative Law Judge (ALJ) ultimately ruled that the Board exceeded its authority. The decision concluded that the Declaration was not ambiguous and that the Board’s “interpretation” was an invalid attempt to circumvent clear contractual language. Consequently, the Board’s resolution and all subsequent amendments passed under the new interpretation were vacated.

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Case Overview and Factual Background

Parties and Governance

• Petitioner: Nancy Waugaman, a member of the Association.

• Respondent: Troon Village Master Association, a planned community consisting of 1,322 members.

• Governing Documents: The Association is governed by a Declaration of Covenants, Conditions and Restrictions (Declaration), Articles of Incorporation, and Bylaws.

The Disputed Board Resolution

On October 16, 2006, the Board met in an executive session with legal counsel. During this session, the Board passed a resolution to “interpret” Section 11.02 of the Declaration.

Provision

Original Requirement (Section 11.02)

Board’s New Interpretation

Voting Threshold

80% of the total voting power in the Association.

80% of the members voting (in person or by absentee ballot) at a meeting.

Practical Impact

Required a minimum of 1,058 affirmative votes (80% of 1,322).

Required as few as 106 affirmative votes (80% of a 10% quorum).

Post-Resolution Actions

Following this resolution, the Board held a Special Meeting and passed several amendments to the Declaration, including:

• Elimination of “tract” voting.

• Elimination of fee assessments for “tracts.”

• Creation of staggered terms for Board members.

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Legal Analysis of Key Issues

1. Validity of the Executive Session

The Petitioner challenged the Board’s decision to pass the resolution during a closed executive session, alleging improper notice and an improper subject for a closed meeting.

• Notice Requirements: The ALJ found that neither A.R.S. § 33-1804(C) nor the Association’s Bylaws specifically require notice of an executive session held in conjunction with a properly noticed regular meeting. Furthermore, failure to provide notice does not inherently invalidate Board actions.

• Subject Matter: A.R.S. § 33-1804(A)(1) allows executive sessions for “legal advice from an attorney.” The Board argued the session was intended to discuss pending litigation and future legal strategies. The ALJ ruled there was insufficient evidence to prove the Board acted outside its authority by discussing the resolution in this context, as it was reasonably related to avoiding future legal entanglements.

2. Authority to Interpret the Declaration

The Board relied on Section 14.01 of the Declaration, which grants it the “exclusive right to construe and interpret” the provisions of the Declaration.

• The “Interpretation” vs. “Nullification” Standard: The ALJ determined that the authority to “interpret” (to clarify meaning) or “construe” (to analyze grammatical structure) implies that the text is not already self-explanatory.

• Implicit Limits: The ALJ ruled that if the Board could assign any meaning to any provision, they could essentially nullify any part of the Declaration. This was deemed contrary to the intent of the drafters. The decision noted that the Board cannot use Section 14.01 to “ascribe a different meaning” to clear, self-evident provisions.

3. Ambiguity of Section 11.02

The Association argued that Section 11.02 was ambiguous because it included the phrase “at a meeting,” suggesting the 80% threshold applied only to those present.

• The “Cardinal Rule” of Construction: The ALJ applied the principle that every part of a contract must be given effect.

• The Phrase “In the Association”: The ALJ found that the Association’s interpretation rendered the phrase “in the Association” superfluous. If the 80% requirement only applied to those at a meeting, there would have been no need for the qualifying language “in the Association.”

• Conclusion on Clarity: The ALJ found Section 11.02 to be “not ambiguous on its face.” Its meaning was clear to all parties, including the Board, prior to the 2006 resolution.

4. Practical Necessity vs. Contractual Reliance

The Association argued that the high voting threshold (80% of all members) made it virtually impossible to update the Declaration to reflect modern laws and circumstances, citing four failed attempts since 2005.

• ALJ Finding: While acknowledging that associations should be wary of overly strenuous amendment requirements, the ALJ emphasized that the Declaration is a contract upon which all 1,322 members have a right to rely. The Board’s interpretation was a “dramatic change” that allowed a tiny fraction of the membership (8.01%) to alter the contract governing the entire community.

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Secondary Issue: Mailing List Formats

The Petitioner also alleged a violation of A.R.S. § 33-1805 because the Association initially provided the membership mailing list in a “spreadsheet” format rather than the “label” format requested.

• Ruling: The ALJ found no violation. Neither state law nor community documents require the Association to provide records in a specific format, only that they be made “reasonably available.”

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Final Order and Conclusions

The Administrative Law Judge issued the following orders:

1. Vacation of Resolution: The Board’s Resolution of October 16, 2006, interpreting Section 11.02, is vacated.

2. Vacation of Amendments: All amendments to the Declaration passed after the October 2006 resolution that were based on the 80%-of-voters threshold (rather than 80% of total membership) are vacated.

3. Financial Restitution: The Respondent is ordered to reimburse the Petitioner for the filing fee in the amount of $2,000.00.

Decision Status: This order is the final administrative decision and is not subject to a request for rehearing under A.R.S. § 41-2198.04(A).






Study Guide – 07F-H067029-BFS


Study Guide: Nancy Waugaman v. Troon Village Master Association

This study guide provides a comprehensive review of the administrative hearing between Nancy Waugaman and the Troon Village Master Association (No. 07F-H067029-BFS). It examines the legal disputes regarding community governance, the interpretation of association declarations, and the limits of a Board of Directors’ authority under Arizona law.

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Short-Answer Quiz

Instructions: Answer the following ten questions in two to three sentences based on the source context provided.

1. What was the central dispute regarding the amendment of the Troon Village Declaration?

2. How did the Board’s Resolution on October 16, 2006, change the voting threshold for amendments?

3. What was the numerical impact of the Board’s new interpretation of the voting requirements?

4. Under what legal justification did the Board claim they could meet in an executive session?

5. What was the Petitioner’s argument regarding the notice of the executive session?

6. How did the Administrative Law Judge (ALJ) rule on the legality of the Board’s executive session?

7. What authority did Article 14, Section 14.01 of the Declaration grant to the Board?

8. How did the ALJ use the principle from Aldous v. Intermountain Building and Loan Association of Arizona to evaluate Section 11.02?

9. What was the Petitioner’s complaint regarding the Association’s mailing list, and how did the ALJ respond?

10. What were the three primary components of the ALJ’s final Order?

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Answer Key

1. What was the central dispute regarding the amendment of the Troon Village Declaration? The dispute centered on whether the Board of Directors had the legal authority to unilaterally reinterpret the Declaration’s voting requirements. The Board attempted to lower the threshold for passing amendments, which Nancy Waugaman challenged as a violation of state statutes and community documents.

2. How did the Board’s Resolution on October 16, 2006, change the voting threshold for amendments? The Resolution interpreted Section 11.02 to mean that amendments only required an affirmative vote of 80% of members voting at a meeting, rather than 80% of the entire membership. This interpretation allowed amendments to pass based on a much smaller pool of participating members.

3. What was the numerical impact of the Board’s new interpretation of the voting requirements? The interpretation effectively reduced the number of affirmative votes required to change the Declaration from a minimum of 1,058 votes (80% of all 1,322 members) to a minimum of 106 votes. This lower number represented 80% of the 132 members needed to constitute a 10% quorum.

4. Under what legal justification did the Board claim they could meet in an executive session? The Board claimed the executive session was convened to discuss pending litigation with its attorneys and to obtain legal advice on how to avoid future legal problems. A.R.S. §33-1804A(1) allows for closed sessions specifically for “legal advice from an attorney for the board or the association.”

5. What was the Petitioner’s argument regarding the notice of the executive session? Petitioner Nancy Waugaman argued that the meeting was not properly noticed under A.R.S. §33-1804(C) because the public notice for the regular meeting failed to mention the executive session occurring immediately prior. She contended that the lack of notice and opportunity for membership discussion invalidated the Resolution passed during that session.

6. How did the Administrative Law Judge (ALJ) rule on the legality of the Board’s executive session? The ALJ ruled that there was no specific requirement in the governing documents or A.R.S. Title 33 to provide notice of an executive session. Furthermore, the judge found that the discussion was reasonably related to pending litigation and legal advice, falling within the scope of authority granted by A.R.S. §33-1804A(1).

7. What authority did Article 14, Section 14.01 of the Declaration grant to the Board? This section granted the Board the “exclusive right to construe and interpret the provisions of this Declaration.” It specified that, absent a court adjudication to the contrary, the Board’s interpretation would be final, conclusive, and binding on all persons and property bound by the Declaration.

8. How did the ALJ use the principle from Aldous v. Intermountain Building and Loan Association of Arizona to evaluate Section 11.02? The ALJ applied the “cardinal rule” that every part of a contract must be given effect, noting that the phrase “in the Association” would be rendered superfluous under the Board’s interpretation. To give the phrase meaning, the judge concluded the drafters intended that 80% of the entire membership must vote affirmatively for an amendment.

9. What was the Petitioner’s complaint regarding the Association’s mailing list, and how did the ALJ respond? The Petitioner alleged the Association violated A.R.S. §33-1805 by providing the mailing list in a spreadsheet format rather than a “label” format. The ALJ dismissed this, stating that the law only requires records to be “reasonably available” for examination and does not mandate that the Association provide information in a specific format requested by a member.

10. What were the three primary components of the ALJ’s final Order? The ALJ ordered the vacation of the Board’s October 16, 2006, Resolution and any subsequent amendments to the Declaration based on that Resolution. Additionally, the Respondent was ordered to reimburse the Petitioner for her $2,000.00 filing fee.

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Essay Questions

Instructions: These questions are designed for in-depth analysis. Use the facts and legal reasoning provided in the case to develop your arguments.

1. The Limits of Interpretation: Analyze the ALJ’s reasoning regarding the definitions of “construe” and “interpret.” How does the judge distinguish between a legitimate interpretation of an ambiguous provision and an unauthorized “nullification” of a clear provision?

2. Contractual Reliance vs. Community Efficiency: The Board argued that without their Resolution, amending the Declaration was “virtually impossible,” hindering the community’s ability to adapt. Contrast this argument with the ALJ’s focus on the Declaration as a contract upon which “each of those individual owners had a right to rely.”

3. Statutory Compliance in Executive Sessions: Discuss the tension between A.R.S. §33-1804A (which allows for private legal advice) and the general requirement for open meetings in planned communities. At what point does a board’s use of an executive session become an invalid “guise” to shield business from membership scrutiny?

4. Grammatical Construction in Legal Documents: Detail the linguistic analysis the ALJ used to determine that Section 11.02 was not ambiguous. Specifically, explain why the inclusion of the phrase “in the Association” was the deciding factor against the Board’s interpretation of “total voting power.”

5. The Role of the Administrative Law Judge: Based on this decision, evaluate the extent of an ALJ’s power to intervene in the internal governance of a homeowners association. What specific actions was the ALJ able to take, and what legal standards (such as “preponderance of the evidence”) guided these decisions?

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Glossary of Key Terms

Definition

A.R.S. §33-1804

The Arizona Revised Statute governing board meetings in planned communities, including notice requirements and the criteria for executive sessions.

A.R.S. §33-1805

The Arizona Revised Statute requiring that financial and other records of an association be made reasonably available for examination by members.

Articles of Incorporation

One of the primary governing documents of the Association, establishing it as a legal entity.

Bylaws

The rules adopted by an association to govern its internal administration and management.

Construe

To analyze the grammatical structure of a clause or sentence to determine the use and function of each word; to explain or interpret meaning.

Declaration (CC&Rs)

The Declaration of Covenants, Conditions, and Restrictions; the foundational contract governing a planned community.

Executive Session

A closed-door meeting of a Board of Directors, permitted under specific circumstances such as discussing legal advice or pending litigation.

Interpret

To give or make clear the meaning of something that is not self-explanatory or self-evident.

Petitioner

The party who initiates a petition or legal action; in this case, Nancy Waugaman.

Quorum

The minimum number of members (in this case, 10% of total voting power) required to be present at a meeting to legally conduct business.

Respondent

The party against whom a legal action is brought; in this case, Troon Village Master Association.

Tract Voting

A voting system (later challenged) where votes and fees were allotted to associations based on specific tracts of land rather than individual improved lots.

Vacate

To cancel or render a previous legal action, resolution, or amendment null and void.






Blog Post – 07F-H067029-BFS


When “Interpretation” Becomes Rewriting: 5 Crucial Lessons from the Troon Village Legal Battle

For most homeowners, the governing documents of a Homeowners Association (HOA) are the “fine print” of neighborhood life—a thick stack of papers signed at closing and rarely revisited. However, these documents are the legal bedrock of the community, acting as a binding contract between the association and its members.

A recent masterclass in board overreach involving the Troon Village Master Association and homeowner Nancy Waugaman serves as a stark cautionary tale. When the Troon Village Board attempted to “interpret” its way around strict voting requirements, the resulting legal battle exposed a critical tension: the Board’s desire for administrative efficiency versus the homeowners’ vested contractual rights. As an HOA governance specialist, I see this frequently—boards treating their Declarations as living documents they can mold at will. The Administrative Law Judge (ALJ), however, recently dismantled that logic in a ruling that every homeowner should keep in their back pocket.

Here are five crucial lessons from this landmark dispute.

1. The 90% Math Trick: How 1,058 Votes Became 106

The core of this dispute centered on a bold piece of mathematical sleight of hand. Section 11.02 of the Troon Village Declaration required an affirmative vote of “at least eighty percent (80%) of the total voting power in the Association” to pass an amendment. In a community of 1,322 members, that threshold is high: 1,058 homeowners must agree to any change.

Claiming this was too difficult to achieve, the Board passed a resolution to “interpret” the math differently. They argued that the 80% threshold should apply only to those who actually cast a ballot at a meeting, provided a quorum was met. Since the bylaws defined a quorum as just 10% of the membership (132 people), the Board’s new math meant that as few as 106 people could change the rules for everyone. As the Board’s resolution stated:

This interpretation effectively stripped away 90% of the required voting power, allowing a tiny fraction of the community—approximately 8%—to alter the governing documents for the other 92%.

2. The “Ambiguity” Trap and the Dictionary Shield

To justify this move, the Board invoked Article 14, Section 14.01 of the Declaration, which gave them the “exclusive right to construe and interpret” the provisions of the document. They argued the phrase “at a meeting” made the voting requirement ambiguous.

The Court was not impressed. The Judge utilized a dictionary-based analysis to remind the Board what “interpret” actually means. Relying on Webster’s Collegiate Dictionary, the Judge noted that to “construe” is “to analyze the grammatical structure of a clause,” and to “interpret” is to “give the meaning” or “make clear.”

The logic is simple: you cannot “clarify” something that is already self-evident. By looking at the plain language, the Judge found that “total voting power in the Association” clearly meant the entire membership. The ruling established a vital safeguard: if a Board can simply “interpret” clear language out of existence, the entire Declaration becomes a meaningless piece of paper. As the Judge reasoned:

3. The Executive Session Shield: A Legal Blind Spot

Perhaps most concerning was how this resolution was passed. The Board met in a closed “executive session” with attorneys, ostensibly to discuss a separate, pending lawsuit. Under the guise of receiving “legal advice” regarding that litigation, they passed the voting resolution behind closed doors.

This highlights a significant “blind spot” for homeowners in state statutes. While A.R.S. §33-1804A allows boards to meet privately for legal advice, the Judge noted that these exceptions should not be used to shield important business from membership scrutiny.

However, there is a catch: under A.R.S. §33-1804C, the failure to provide specific notice of an executive session does not, by itself, invalidate the Board’s action. This means that while the Board’s logic was eventually overturned on its merits, the act of passing major policy shifts in private is often technically shielded from procedural invalidation. It is a reminder that transparency is rarely volunteered; it must be demanded.

4. Governing Documents are Contracts, Not Suggestions

The Board’s primary defense was one of “efficiency.” They argued that the high voting threshold made it “virtually impossible” to update the Declaration, citing four failed attempts to pass amendments despite what they called “overwhelming community support.”

In the world of HOA governance, “efficiency” is often just shorthand for “avoiding accountability.” The Judge’s ruling was a victory for the law of contracts, asserting that the 1,322 members have a “right to rely” on the terms of the Declaration. Because the language of the voting requirement was clear, it created a vested contractual right.

This takeaway is essential: an HOA is not a laboratory for a Board’s social or administrative experiments. When a homeowner buys into a community, they are signing a contract. A board’s preference for a more “workable” format cannot override the bargained-for rights of the individual owners.

5. “Workable Format” Does Not Mean Your Preferred Format

While Petitioner Waugaman won the war, she lost a minor skirmish regarding transparency that serves as a reality check for community activists. She complained that when she requested the Association’s mailing list, she was provided a spreadsheet rather than the “label format” she preferred for her own mailings.

The Judge clarified that under A.R.S. §33-1805, associations must make records “reasonably available” and provide photocopies. However, they are generally not required to perform extra administrative labor to format data for a petitioner’s specific needs. The takeaway? If the Board gives you the data in a standard digital format like a spreadsheet, they have likely met their legal obligation, even if it adds extra steps to your advocacy efforts.

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A Final Thought for the Modern Homeowner

The Troon Village battle ended with a decisive series of “hard wins” for the homeowners. The Judge ordered the Board’s resolution vacated, invalidated every amendment passed under the illegal “106-vote” rule, and ordered the Association to reimburse Waugaman’s $2,000 filing fee.

This case serves as a powerful reminder that while Board members may hold the keys to the meeting room, they do not hold the power to rewrite your contract in the dark.

If your Board claims the “exclusive right to interpret” your community’s laws, how much of your contract is actually set in stone, and how much is merely waiting for the Board’s next “interpretation”?


Case Participants

Petitioner Side

  • Nancy Waugaman (Petitioner)
    Also listed as Nancy J. Waugaman

Respondent Side

  • Carrie Smith (attorney)
    Carpenter, Hazelwood, Delgado & Wood, PLC
    Also listed as Carrie H. Smith
  • Jason Smith (attorney)
    Carpenter, Hazelwood, Delgado & Wood, PLC

Neutral Parties

  • Michael K. Carroll (ALJ)
    Office of Administrative Hearings
  • Robert Barger (Agency Official)
    Department of Fire Building and Life Safety
    Listed as H/C
  • Joyce Kesterman (Agency Contact)
    Department of Fire Building and Life Safety