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 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.
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

Decision Documents

23F-H039-REL Decision – 1040495.pdf

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23F-H039-REL Decision – 1044744.pdf

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23F-H039-REL Decision – 1059207.pdf

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23F-H039-REL Decision – 1059214.pdf

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23F-H039-REL Decision – 1087229.pdf

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23F-H039-REL Decision – 1087233.pdf

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23F-H039-REL Decision – 1095655.pdf

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23F-H039-REL Decision – 1095796.pdf

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23F-H039-REL Decision – 1101606.pdf

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23F-H039-REL Decision – 1102499.pdf

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23F-H039-REL Decision – 1104514.pdf

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23F-H039-REL Decision – 1104862.pdf

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23F-H039-REL Decision – 1040495.pdf

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23F-H039-REL Decision – 1044744.pdf

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23F-H039-REL Decision – 1059207.pdf

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23F-H039-REL Decision – 1059214.pdf

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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)

This case, *Michael Holland v. Tonto Forest Estates Homeowner's Association* (No. 23F-H039-REL), centered on a dispute over the Petitioner's right to record a homeowners association board meeting in accordance with Arizona law. The matter was heard by the Office of Administrative Hearings (OAH), presided over by Administrative Law Judge (ALJ) Kay Abramsohn.

Key Facts and Legal Issue

The core dispute arose from a Tonto Forest Estates (TFE) board meeting held on September 28, 2022, which was noticed as an open meeting.

Petitioner Michael Holland alleged that the HOA board violated Arizona Revised Statutes (A.R.S.) § 33-1804(A) by prohibiting homeowners from recording the meeting and forcing those recording to stop. A.R.S. § 33-1804(A) grants attendees the right to audiotape or videotape portions of board meetings that are open.

The Respondent, Tonto Forest Estates Homeowner's Association (HOA), asserted that although the meeting was open, a portion was or should have been closed to recording because the association's attorney was present to provide legal advice regarding pending or contemplated litigation. The HOA argued that they merely requested members stop recording the attorney's presentation and did not use force or threats.

Hearing Proceedings and Key Arguments

The ALJ denied the HOA's initial Motion to Dismiss, determining the Petition raised a valid and justiciable legal issue regarding the alleged improper recording prohibition.

  1. Petitioner's Argument: Holland argued that the HOA violated the statute because the board failed to properly declare and execute a closed session. Since the HOA did not record the meeting itself, they had no statutory basis to preclude members from recording the open session. Furthermore, Petitioner cited A.R.S. § 33-1804(C), arguing that the board did not identify the specific statutory exception authorizing closure prior to entering the alleged closed portion.
  2. Respondent's Argument: The HOA argued the issue was moot since a member successfully recorded the meeting anyway. Counsel argued that the mere presence of the attorney discussing a legal claim satisfied the exception allowing the portion to be closed to recording, and no special process or "magic language" was required to close a portion of a meeting "on the fly".

Legal Conclusion and Outcome

The ALJ found that A.R.S. § 33-1804(A) only permits recording restrictions during a *closed* portion of a meeting.

The Administrative Law Judge concluded that the September 28, 2022 meeting cannot be considered to have been "closed". This conclusion was based on the fact that the HOA President, Kurt Meister, acknowledged that no members present, or anyone attending online, had to leave the meeting for the portion that included the attorney's advice.

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

The ALJ issued a decision concluding that the Petitioner had met the burden of proof, establishing that the HOA was in violation of A.R.S. § 33-1804(A).

Final Decision:

The Petition was granted, and Petitioner Michael Holland was deemed the prevailing party. The HOA was ordered to reimburse Petitioner his $500.00 filing fee. The decision noted that a written determination would be issued and sent to the Director's Office at Real Estate for finalization.

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

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Case Summary

Case ID 23F-H015-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-05-18
Administrative Law Judge Tammy L. Eigenheer
Outcome 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.
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

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Video Overview

Audio Overview

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)

This summary details the administrative hearing proceedings (No. 23F-H015-REL) initiated by Petitioner Jill P. Eden-Burns against the Tonto Forest Estates Homeowners Association (Association/Respondent). The hearing took place across two dates: February 13, 2023, and April 4, 2023.

Key Facts

The Petitioner filed a complaint alleging the Association violated Arizona’s Open Meeting Law (A.R.S. § 33-1804) and improperly applied Section 4.32 of the Community Conditions, Covenants, and Restrictions (CC&Rs). The substantive dispute centered on a $1,750.00 charge for a repair and pumpout performed on the Petitioner’s required sewage treatment system in November 2021. Although the Association initially paid for the work, it subsequently back assessed the Petitioner for the full amount.

Main Legal Issues and Arguments

  1. Violation of Open Meeting Law (A.R.S. § 33-1804):
  • The Petitioner alleged that a quorum of the Board members held an informal, closed meeting via Zoom on January 31, 2022, immediately prior to the officially scheduled open meeting. The Petitioner, who inadvertently joined the call, was subsequently removed.
  • Testimony and a recorded transcript revealed that Board members, including the President, discussed the pending septic issue and procedural methods for presenting a new "policy" regarding pumpouts without holding a formal vote.
  • The Respondent argued this was merely procedural discussion, not substantive Association business.
  • Legal Point: A.R.S. § 33-1804(E) requires that a quorum of the board meeting informally to discuss association business must comply with open meeting and notice provisions, even if no vote is taken.
  1. Improper Application of CC&R Section 4.32 (Septic Costs):
  • CC&R Section 4.32 states that the Association assumes "responsibility for the monitoring, maintenance and repair" of the required sewage treatment system, "with the costs thereof to be included as part of the Assessments payable by such Owner".
  • The Petitioner argued that "Assessments" is a defined term in the CC&Rs (Article I), referring to annual charges levied pursuant to Article 8. Article 8 requires assessments to be allocated equally among all Lots for Common Expenses. Therefore, maintenance costs should be covered by general funds, not back assessed to individual owners.
  • The Respondent countered that 4.32 explicitly allows costs to be assessed back to the specific owner because the system is on private property and usage varies, making individual assessment equitable.
  • Legal Point: The Administrative Law Judge determined that because the definition of "Assessments" (Article I, referencing Article 8) mandates equal allocation among all lots, the CC&Rs do not provide a mechanism in Article 8 to charge a single owner for lot-specific fees. Thus, the Association was required to pay for system maintenance from annual assessments.

Outcome and Final Decision

The Administrative Law Judge granted the Petitioner’s petition, finding that the Petitioner successfully sustained the burden of proof for both claims.

  • Decision on Open Meeting: The informal discussion among a quorum of the Board regarding septic policy constituted a discussion of Association business in violation of A.R.S. § 33-33-1804.
  • Decision on Assessments: The Association improperly charged the Petitioner $1,750.00 for the septic repair and pumpout.
  • Orders: The Association was ordered to henceforth comply with A.R.S. § 33-33-1804 and CC&R Section 4.32, and to reimburse the Petitioner's filing fee of $1,000.00.

{ “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”: { “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 Petitioner prevailed on the allegation that Respondent failed to provide notice of the board meeting in violation of A.R.S. § 33-1804, resulting in a refund of $500.00. Respondent prevailed on the allegation that the board meeting was required to be open, as the meeting was properly closed to receive legal advice under a statutory exception.
Filing Fees Refunded $1,000.00
Civil Penalties $0.00

Parties & Counsel

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

Alleged Violations

A.R.S. § 33-1804
A.R.S. § 33-1804

Outcome Summary

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

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

Key Issues & Findings

Failure to provide notice of board meeting to members.

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

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

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

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

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

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

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

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

Analytics Highlights

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

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

Video Overview

Audio Overview

Decision Documents

23F-H038-REL Decision – 1036995.pdf

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

23F-H038-REL Decision – 1050950.pdf

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

23F-H038-REL Decision – 1036995.pdf

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

23F-H038-REL Decision – 1050950.pdf

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

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

Key Facts and Main Issues

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

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

Key Legal Arguments

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

Outcome and Final Decision

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

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

Orders and Remedies:

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

Questions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1804

Topic Tags

  • meetings
  • notice
  • legal advice

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1804(A)(1)

Topic Tags

  • meetings
  • exclusions
  • attorney-client privilege

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1804(E)(4)

Topic Tags

  • meetings
  • quorum
  • workshops

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Order of the ALJ

Topic Tags

  • fees
  • reimbursement
  • penalties

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Discretion of ALJ

Topic Tags

  • civil penalty
  • fines
  • enforcement

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

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

Topic Tags

  • legal standard
  • burden of proof
  • evidence

Case

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

Questions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1804

Topic Tags

  • meetings
  • notice
  • legal advice

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1804(A)(1)

Topic Tags

  • meetings
  • exclusions
  • attorney-client privilege

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1804(E)(4)

Topic Tags

  • meetings
  • quorum
  • workshops

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Order of the ALJ

Topic Tags

  • fees
  • reimbursement
  • penalties

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Discretion of ALJ

Topic Tags

  • civil penalty
  • fines
  • enforcement

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

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

Topic Tags

  • legal standard
  • burden of proof
  • evidence

Case

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

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

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 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.
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)

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Video Overview

Audio Overview

Decision Documents

14F-H1414005-BFS Decision – 410541.pdf

Uploaded 2026-04-24T10:49:11 (128.8 KB)

14F-H1414005-BFS Decision – 415031.pdf

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14F-H1414005-BFS Decision – 410541.pdf

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14F-H1414005-BFS Decision – 415031.pdf

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Administrative Law Judge Decision: Ripley v. Agua Dulce Homeowners Association

Executive Summary

This briefing document analyzes the administrative hearing and subsequent final agency action regarding Case No. 14F-H1414005-BFS. The dispute involved Jo Ann Ripley (Petitioner), a homeowner and former Board President of the Agua Dulce Homeowners Association (Respondent).

The central conflict arose from Petitioner’s allegations that the Association violated Arizona Revised Statutes (A.R.S. § 33-1804) by altering board meeting minutes, removing objections, and misrepresenting Association actions to homeowners. Following testimony from the Petitioner, the current Board President, the Property Manager, and a former board member, the Administrative Law Judge (ALJ) concluded that the Petitioner failed to meet the burden of proof. The decision, which dismissed the matter and designated the Association as the prevailing party, was certified as final on October 24, 2014.

Case Overview and Key Entities

Entity Role Key Representative
Jo Ann Ripley Petitioner Self-represented (Former Board President)
Agua Dulce HOA Respondent Craig Armstrong, Esq. (Brown Olcott, PLLC)
Office of Administrative Hearings Adjudicating Body M. Douglas (ALJ); Cliff J. Vanell (Director)
Dept. of Fire, Building and Life Safety Oversight Agency Gene Palma (Director)

Detailed Analysis of Key Themes

1. The Nature and Content of Meeting Minutes

A primary point of contention was the definition of what constitutes "official minutes." The Petitioner argued that minutes should be comprehensive, including all items discussed and specific objections. Conversely, the Association and its property manager argued that minutes are meant to be summaries, not verbatim transcripts.

  • Respondent’s Position: Minutes were described as "bare bones," containing only motions, actions, and important topics.
  • Industry Standard: Testimony from the Property Manager indicated that other HOAs follow this same procedure and that transcription services for board meetings are not standard practice.
2. Burden of Proof and Evidence Quality

The legal standard applied was the "preponderance of the evidence," meaning the Petitioner had to prove it was "more likely true than not" that the Association violated the law.

  • Failed Evidence: The Petitioner attempted to use personal audio recordings to prove that the minutes were altered. However, the recordings were inaudible during the hearing.
  • Ratification Process: The ALJ noted that the disputed minutes from October 30, November 5, and November 26, 2013, had been reviewed, approved, and ratified by the Board, lending them official weight that the Petitioner's partial transcripts could not overcome.
3. Record Retention and Technology

The hearing revealed inconsistencies in how the Association and its management companies handled electronic recordings.

  • Management Practices: Previous management used personal recorders as tools to assist in typing minutes, then reused the tapes, effectively erasing the recordings.
  • Current Policy: Following the dispute, the new management company began maintaining recordings of all board meetings to ensure better record-keeping.
  • Legal Standing: Witness testimony suggested there is no statutory requirement for HOAs to maintain electronic recordings of meetings, as they are not considered "official records."
4. Statutory Policy of Openness (A.R.S. § 33-1804)

The case highlighted the state policy that all meetings of a planned community should be conducted openly. Key provisions include:

  • Member Rights: Members or their representatives must be permitted to attend and speak after board discussion of an agenda item but before a formal vote.
  • Recording Rights: Attendees have the right to tape record or videotape open portions of meetings, subject to reasonable board rules.
  • Notice Requirements: Notice must be given at least 48 hours in advance through newsletters, conspicuous posting, or other reasonable means.

Important Quotes with Context

On the Purpose of Minutes

"The minutes for the meetings of the board are not supposed to be transcripts of the meetings… the minutes were 'bare bones' or summary minutes."

— Linda Ware, Board President, testifying on why certain "he said, she said" disputes and objections were excluded from official records.

On Property Management Procedures

"The minutes would include motions, actions, and important topics. The minutes would not reflect any discussions that took place during the board meetings… in his personal experience, other HOAs follow the same procedure."

— Daniel Castillo, Property Manager, clarifying that discussions are intentionally excluded from the final written record.

On State Policy regarding HOA Governance

"It is the policy of this state… that all meetings of a planned community… be conducted openly and that notices and agendas be provided… to ensure that members have the ability to speak after discussion of agenda items, but before a vote of the board of directors is taken."

— A.R.S. § 33-1804(E), the governing statute cited during the hearing to frame the legal requirements for transparency.

Actionable Insights

For Homeowners and Petitioners
  • Audibility and Admissibility: If relying on audio recordings as evidence in an administrative hearing, parties must ensure the recordings are clear and audible. Inaudible recordings carry no evidentiary weight.
  • Definition of Minutes: Homeowners should understand that under standard HOA operations, minutes are summary documents of actions taken rather than verbatim records of all dialogue.
  • Cooperation in Discovery: The ALJ noted the Petitioner’s failure to provide copies of recordings to the Board despite repeated requests. In administrative disputes, a failure to share evidence during the discovery phase can undermine a party's credibility.
For Homeowners Associations (HOAs)
  • Ratification as Defense: Formally reviewing and ratifying minutes at subsequent board meetings provides a legal layer of protection against claims of "altered" documents.
  • Record Retention Policies: To avoid disputes, associations should have clear, written policies regarding whether meetings are recorded, how long those recordings are kept, and whether they are considered official association records.
  • Expanding Access: The Association in this case took proactive steps to mitigate future conflict by expanding the time provided for monthly meetings to increase member access.

Final Decision Certification

The ALJ decision was transmitted on September 17, 2014. Under A.R.S. § 41-1092.08, the Department of Fire, Building and Life Safety had until October 22, 2014, to modify the decision. Because no action was taken by the Department, the ALJ decision was certified as final on October 24, 2014.

Case Study Analysis: Ripley v. Agua Dulce Homeowners Association

This study guide provides a comprehensive overview of the administrative hearing between Jo Ann Ripley and the Agua Dulce Homeowners Association. It covers the legal framework governing Arizona homeowners' associations, the specific allegations regarding board meeting minutes, and the resulting administrative decision.

Key Legal Concepts and Statutory Framework

Arizona Revised Statute § 33-1804 (Open Meetings)

This statute serves as the primary regulatory framework for meetings within planned communities. The state policy emphasizes that all meetings should be conducted openly, with adequate notice and agendas provided to members.

Provision Requirement / Right
Open Meetings All meetings of the members' association and the board of directors are open to all members or their designated representatives.
Right to Speak Members must be permitted to speak at an appropriate time during deliberations and once after the board discusses an item but before formal action is taken.
Recordings Persons attending may tape record or videotape open portions of board and membership meetings. The board may adopt reasonable rules for this but cannot preclude it.
Closed Sessions Meetings may only be closed for specific reasons: legal advice, pending litigation, personal/health/financial info of members/employees, or job performance discussions.
Notice Notice for board meetings must be given at least 48 hours in advance (after termination of declarant control) via newsletter, conspicuous posting, or other reasonable means.
Agendas Agendas must be available to all members attending the meeting.
The Role of the Office of Administrative Hearings (OAH)

Under A.R.S. § 41-2198.01, homeowners or associations in Arizona may file petitions with the Department of Fire, Building and Life Safety regarding violations of community documents or statutes. These disputes are adjudicated by an Administrative Law Judge (ALJ) at the OAH.

Burden of Proof

In administrative hearings, the party asserting a claim (the Petitioner) bears the burden of proof. The standard used is a preponderance of the evidence, meaning the Petitioner must prove that their allegations are "more likely true than not."

Case Overview: Ripley v. Agua Dulce HOA

The Allegations

Jo Ann Ripley, a homeowner and former board president, alleged that the Agua Dolce HOA violated A.R.S. § 33-1804(C) and (D). Her claims centered on three board meetings held in late 2013 (October 30, November 5, and November 26). Specifically, she alleged:

  • The board altered previously approved minutes.
  • Objections she made during meetings were removed.
  • Votes were changed.
  • Items were added to the minutes that were never discussed.
  • The association misrepresented its actions by publishing these "altered" documents on its website.
Evidence and Testimony
  • Petitioner’s Evidence: Ms. Ripley attempted to provide partial transcripts and personal recordings to prove the minutes were inaccurate. However, the recording played during the hearing was inaudible. While she offered to let the board listen to her recordings, she failed to provide them with copies despite multiple requests.
  • Association’s Defense: The HOA board (represented by President Linda Ware) and the property manager (Daniel Castillo) testified that minutes are intended to be "bare bones" summaries rather than verbatim transcripts. They argued that the minutes properly reflected motions, actions, and important topics.
  • Recording Practices: It was revealed that the previous property management company used recordings only as a tool to draft minutes and then erased the tapes for reuse. No official library of recordings was maintained by the association at the time of the dispute.
Final Decision

The ALJ determined that Ms. Ripley failed to meet her burden of proof. Because the board had reviewed, approved, and ratified the minutes, and because Ms. Ripley could not produce audible or documented evidence of the alleged alterations, the matter was dismissed. The decision was certified as the final administrative action on October 22, 2014.

Short-Answer Practice Quiz

  1. What is the required notice period for a board of directors meeting after declarant control has terminated?
  2. According to A.R.S. § 33-1804, what are the five specific reasons a board meeting may be closed to the membership?
  3. In the case of Ripley v. Agua Dulce, what was the primary reason the Petitioner's recordings were not considered effective evidence at the hearing?
  4. Define the "preponderance of the evidence" standard as applied in this case.
  5. Who is authorized by statute to receive petitions for hearings from homeowners’ associations in Arizona?
  6. Does an HOA have a statutory obligation to maintain a library of electronic recordings of its board meetings?

Essay Prompts for Deeper Exploration

  1. The Distinction Between Minutes and Transcripts: Based on the testimony of Daniel Castillo and Linda Ware, discuss the intended purpose of meeting minutes in a homeowners' association. Contrast the legal requirements for minutes with the Petitioner’s expectation of a verbatim record.
  2. The Policy of Openness: Analyze A.R.S. § 33-1804(E). How does the state’s declaration of policy regarding "openness" influence the interpretation of statutes governing HOA board meetings and member participation?
  3. Due Process in Administrative Hearings: Evaluate the procedural journey of the Ripley case from the filing of the petition to the final certification. Discuss the roles of the ALJ and the Department of Fire, Building and Life Safety in ensuring a final agency action.

Glossary of Important Terms

  • A.R.S. (Arizona Revised Statutes): The codified laws of the state of Arizona.
  • Administrative Law Judge (ALJ): An official who presides over an administrative hearing and issues a recommended order or decision.
  • Declarant Control: The period during which the developer (declarant) of a community maintains control over the homeowners' association.
  • Minutes: The official written record of the proceedings of a meeting, typically focusing on actions taken and motions passed.
  • Petitioner: The party who initiates a lawsuit or petition; in this case, Jo Ann Ripley.
  • Quorum: The minimum number of members of a board or committee that must be present to make the proceedings of that meeting valid.
  • Respondent: The party against whom a petition is filed; in this case, Agua Dulce Homeowners Association.
  • Ratification: The formal validation or approval of a proposed action or document (such as minutes) by the board.
  • Summary Minutes: Often referred to in the text as "bare bones" minutes; a brief record of the meeting that does not include a full discussion or transcript.

The Minutes Matter: Lessons from an Arizona HOA Board Dispute

1. Introduction: When Board Minutes Become a Battlefield

In the high-stakes arena of community governance, meeting minutes are often dismissed as mere administrative formalities. However, the case of Jo Ann Ripley v. Agua Dulce Homeowners Association serves as a stark reminder that these records are the primary legal evidence of a board’s actions. When the accuracy of those records is challenged, the resulting dispute can move from the boardroom to the courtroom, testing the limits of transparency and the weight of the written word.

The conflict between Jo Ann Ripley and the Agua Dulce HOA centered on grave allegations: the systematic alteration of meeting minutes and the misrepresentation of board actions to the community. At its heart, the case explored a fundamental question of HOA law: Does a board have the right to produce a summary of actions, or do members have a right to a verbatim record? For homeowners and directors alike, the ruling by the Arizona Office of Administrative Hearings provides a roadmap for navigating the complexities of A.R.S. § 33-1804 and the necessity of robust record-keeping.

2. The Petitioner’s Allegations: A Case of Altered Records?

Jo Ann Ripley, a homeowner and former President of the Agua Dulce HOA, brought a petition before the Department of Fire, Building and Life Safety, alleging that the association had violated A.R.S. § 33-1804(C) and (D). Her claims focused on three specific board meetings held on October 30, November 5, and November 26, 2013.

According to Ripley, the minutes published on the association’s website were not just incomplete—they were intentionally deceptive. She alleged that the board:

  • Excised specific objections she had voiced during the meetings.
  • Altered the records of votes to reflect different outcomes than what occurred.
  • Inserted items into the minutes that were never discussed during the open sessions.
  • Misrepresented the association's official actions by publishing these "altered documents" online.

To support her claims, Ripley presented "corrected minutes" she had prepared herself. She also relied on the existence of personal audio recordings she had made during the sessions, asserting that these recordings would prove the official minutes were a fabrication.

3. The Defense: "Bare Bones" vs. Transcripts

The Agua Dulce HOA mounted a defense through the testimony of current board president Linda Ware, property manager Daniel Castillo, and former board member Mark Carroll. Crucially, Administrative Law Judge M. Douglas found the testimony of all three HOA witnesses to be credible.

The defense provided essential context for the rift between the parties. Ms. Ware testified that Ripley’s removal as President and Information Officer followed a specific dispute regarding the contract performance of a security camera company. Following this breakdown in the relationship, the board discovered that Ripley had not been publishing minutes as required, prompting them to take control of the website and ensure transparency.

The HOA’s position on the nature of minutes was clear:

  • Purpose of Minutes: Minutes are intended to be "bare bones" summaries of motions, actions, and important topics. They are not intended to be—and are not legally required to be—verbatim transcripts.
  • Exclusion of Discussion: Property manager Daniel Castillo testified that, in accordance with industry standards, minutes typically do not reflect the subjective "he said, she said" discussions that occur during meetings.
  • Board Ratification: The HOA emphasized that the contested minutes were not the work of a lone actor; they were reviewed, approved, and ratified by a quorum of the board, giving them official standing.
4. The Evidence Gap: The Mystery of the Missing Recordings

A pivotal moment in the hearing involved the "missing" audio evidence. The HOA admitted it did not possess official recordings of the 2013 meetings. Testimony from Mark Carroll revealed a problematic administrative practice: the previous property manager had used a personal recorder to capture the meetings solely for her own aid in typing the minutes. Once the "bare bones" minutes were prepared, she routinely erased and reused the tapes—a practice the board was unaware of until this dispute arose.

While Ripley claimed her personal recordings would vindicate her, her strategy ultimately backfired. Despite repeated requests from the HOA and the property manager to provide copies of the tapes, Ripley refused, offering only to let board members listen to them in her presence. This created what was essentially a "trial by ambush" atmosphere. When the moment of truth arrived at the hearing, the strategic failure was complete: Ripley’s recording was inaudible when played for the court. Without clear, objective audio to verify her "corrected" minutes, her claims remained unsubstantiated.

5. Legal Framework: Understanding A.R.S. § 33-1804

The case turned on the interpretation of Arizona’s "Open Meeting" statutes for planned communities. A.R.S. § 33-1804 balances the board’s need for efficient management with the homeowner’s right to oversight.

Key Right Statutory Provision & Detail
Right to Attend All meetings of the association and board must be open to all members or their designated representatives.
Right to Speak Members must be allowed to speak at least once after the board discusses an item but before a formal vote is taken (subject to reasonable time limits).
Right to Record Attendees may audio or video record meetings. Boards may adopt reasonable rules governing the process, but such rules shall not preclude the recording.

Under Section E of the statute, the law mandates that all provisions be interpreted in favor of open meetings. This includes a requirement that notices and agendas contain enough information to ensure members are "reasonably informed" of the matters to be decided.

6. The Verdict: Why the Case Was Dismissed

In reaching a decision, Administrative Law Judge M. Douglas applied the "Preponderance of the Evidence" standard. Under this standard, the Petitioner must prove that her claims are "more likely true than not."

The judge concluded that Ripley failed to satisfy her burden. The ruling underscored that the board’s formal ratification of the minutes gave the documents a "presumption of regularity" that Ripley could not overcome. The HOA witnesses were found credible, while Ripley’s evidence—specifically the inaudible recording and her refusal to share it during discovery—left her with no objective proof of malfeasance. Consequently, the matter was dismissed, and the Agua Dulce HOA was designated the prevailing party.

7. Conclusion: Key Takeaways for HOA Members and Boards

The Ripley v. Agua Dulce case provides three actionable insights for those involved in community governance:

  1. Understand the Purpose of Minutes: Boards are not court reporters. Minutes should be a concise summary of motions, seconds, and actions taken. Homeowners should understand that their personal objections or the specific "flavor" of a discussion are rarely required in an official legal record.
  2. The Burden of Discovery and Proof: In an administrative hearing, refusing to share evidence (like recordings) during the discovery phase often harms the refuser’s credibility. For evidence to be useful, it must be audible, accessible, and shared in a spirit of cooperation before the hearing begins.
  3. Consistency in Record-Keeping: To avoid the "mystery of the missing recordings," boards should move away from property managers using personal devices. Agua Dulce has since improved its governance by hiring a new management company that maintains recordings of all meetings and has expanded meeting times to enhance member access.

Clear community governance relies on the board’s ability to maintain credible records and the members' ability to verify them through open access. When those systems are professionalized, the community can move past the battlefield of the minutes and focus on the health of the neighborhood.

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 -v- Gainey Ranch Community Association

Posted on by

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 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.
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)

Video Overview

Audio Overview

Decision Documents

08F-H088002-BFS Decision – 189916.pdf

Uploaded 2026-04-24T10:32:45 (88.6 KB)

08F-H088002-BFS Decision – 189916.pdf

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

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: 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.

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

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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 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.
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

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Decision Documents

07F-H067029-BFS Decision – 173903.pdf

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07F-H067029-BFS Decision – 173903.pdf

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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: 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.

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