Tag Archives: A.R.S. § 33-1804

William P. Lee vs. Greenlaw Townhouses Unit Two HOA

Posted on by

Case Summary

Case ID 14F-H1415007-BFS
Agency Department of Fire, Building and Life Safety
Tribunal OAH
Decision Date 2015-02-16
Administrative Law Judge M. Douglas
Outcome The HOA violated A.R.S. § 33-1813(A)(1) by failing to obtain a requisite signed petition from members before holding a special meeting to remove the Petitioner from the Board of Directors. However, the HOA did not violate statutes or bylaws regarding the vote to increase the number of directors. Petitioner was awarded half of the filing fees ($1,000) and the HOA was assessed a $200 civil penalty.
Filing Fees Refunded $2,000.00
Civil Penalties $200.00

Parties & Counsel

Petitioner William P. Lee Counsel —
Respondent Greenlaw Townhouses Unit Two HOA Counsel Keith Hammond

Alleged Violations

A.R.S. § 33-1812(A)(4); A.R.S. § 33-1804
A.R.S. § 33-1813(A)(1)
A.R.S. § 33-1804

Outcome Summary

The HOA violated A.R.S. § 33-1813(A)(1) by failing to obtain a requisite signed petition from members before holding a special meeting to remove the Petitioner from the Board of Directors. However, the HOA did not violate statutes or bylaws regarding the vote to increase the number of directors. Petitioner was awarded half of the filing fees ($1,000) and the HOA was assessed a $200 civil penalty.

Why this result: Regarding the board expansion and other claims, the ALJ found the preponderance of evidence failed to support that the vote violated bylaws or statutes.

Key Issues & Findings

Improper Amendment of Bylaws/Board Expansion

Petitioner alleged the vote to increase the board size from 3 to 5/7 violated bylaws and statutes regarding absentee ballots and open meetings.

Orders: Denied; evidence failed to support finding of violation.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Removal from Board without Petition

HOA held a special meeting to remove Petitioner from the Board without first obtaining a petition signed by the required percentage of members.

Orders: HOA ordered to comply with A.R.S. § 33-1813(A)(1) in the future; civil penalty assessed.

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $200.00

Disposition: petitioner_win

Misuse of Emergency Meeting

Petitioner alleged the Board misused an emergency meeting and resulting notice to harass and libel him.

Orders: Denied; insufficient evidence.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Related election workflow tool

Many HOA election disputes start with preventable workflow problems: unclear ballot language, separate-vote issues, quorum tracking, paper/online reconciliation, proxy handling, or incomplete records. HOABallot is a separate platform built to document the voting workflow from notice through certification.

Preview HOABallot election workflows

Video Overview

Audio Overview

Decision Documents

14F-H1415007-BFS Decision – 428996.pdf

Uploaded 2026-04-24T10:50:35 (126.4 KB)

14F-H1415007-BFS Decision – 435021.pdf

Uploaded 2026-04-24T10:50:40 (60.7 KB)

14F-H1415007-BFS Decision – 428996.pdf

Uploaded 2026-01-25T15:30:48 (126.4 KB)

14F-H1415007-BFS Decision – 435021.pdf

Uploaded 2026-01-25T15:30:48 (60.7 KB)

Case Summary: William P. Lee v. Greenlaw Townhouses Unit Two HOA (No. 14F-H1415007-BFS)

Executive Summary

This document summarizes the administrative law proceedings and final decision regarding a dispute between William P. Lee (Petitioner) and the Greenlaw Townhouses Unit Two homeowners’ association (Respondent). The Petitioner alleged multiple violations of Arizona Revised Statutes (A.R.S.) and association bylaws concerning the amendment of bylaws to increase the number of directors and the process used to remove him from the Board of Directors.

Following a hearing held on February 4, 2015, the Administrative Law Judge (ALJ) found that while the association’s expansion of the Board was legally sound, the association failed to follow mandatory statutory procedures for the removal of a director. Specifically, the association did not obtain a required member petition before calling a special meeting for the Petitioner’s removal. As a result, the Petitioner was deemed the prevailing party. The association was ordered to pay a portion of the filing fee and a civil penalty. The decision was certified as final on April 1, 2015.

Detailed Analysis of Key Themes

1. Statutory Compliance in Director Removal

The central legal failure identified in the proceedings was the association's disregard for the procedural requirements of A.R.S. § 33-1813(A)(1). This statute mandates that in an association with 1,000 or fewer members, a special meeting for the removal of a director can only be called upon receipt of a petition signed by at least 25% of the members (or 100 votes, whichever is less).

The Board admitted to removing the Petitioner without this petition. Although the subsequent vote for removal was overwhelming (70 to 4), the ALJ ruled that the failure to obtain the preliminary petition rendered the process a violation of law.

2. Validity of Bylaw Amendments and Board Expansion

A secondary theme involved the Petitioner’s claim that the Board acted "deceitfully" to increase the number of directors from three to five or seven. The association defended this action as a necessary measure to ensure a quorum and to avoid even-numbered deadlocks.

The analysis of the association’s governing documents revealed:

  • Article IV, Section 2: Allows the number of directors to be changed at any time by a vote of the shareholders.
  • Article XI, Section 2: Restricts the Board from unilaterally changing the authorized number of directors but preserves the shareholders' right to do so.

The ALJ concluded that because the expansion was put to a vote of the members and passed with a quorum, the Petitioner failed to prove any violation regarding the Board's expansion.

3. Standards of Professional Conduct and Governance

The testimony highlighted a breakdown in Board relations. Management and other Board members characterized the Petitioner as "aggressive," "volatile," and "difficult to deal with." A pivotal conflict arose when the Petitioner sent an unauthorized letter to a litigant involved in a lawsuit with the association, signing it on behalf of the Board without their knowledge or approval. This incident was cited as the primary catalyst for the Board’s attempt to remove him.

4. Legal Burden of Proof and Findings

Under A.A.C. R2-19-119, the Petitioner bore the burden of proof to establish violations by a "preponderance of the evidence." The findings were split:

  • Proven Violation: Failure to adhere to A.R.S. § 33-1813(A)(1) regarding the removal petition.
  • Unproven Violations: Claims regarding fraudulent bylaw amendments and violations of open meeting laws (A.R.S. § 33-1804 and § 33-1812) were dismissed due to insufficient evidence.

Key Legal Citations and Statutory References

Statute/Bylaw Subject Matter Findings in Case
A.R.S. § 33-1813(A)(1) Removal of Board Members Violation found. Board failed to obtain a member petition before the removal vote.
A.R.S. § 33-1812(A)(4) Absentee Ballot Requirements No violation found. Petitioner failed to meet burden of proof.
A.R.S. § 33-1804 Open Meeting Laws/Agendas No violation found. Evidence suggested meetings were open and noticed.
Bylaw Article IV(2) Number of Directors Compliant. Change was authorized by a shareholder vote.
Bylaw Article XI(2) Board Authority to Amend Compliant. Board sought member approval for director count changes.

Important Quotes with Context

"The Board does concede that it did fail to obtain a signed petition by the members that called for Petitioner’s removal from the Board of Directors… The failure of the removal petition does call into question the validity of his removal."

  • Context: Statement from Greenlaw’s Answer to the Petition, acknowledging a procedural error despite arguing the removal was eventually supported by a member vote.

"The straw that broke the camel’s back was when Petitioner sent a letter out to a litigant who was involved in a lawsuit with Greenlaw without the knowledge or approval of the Board."

  • Context: Testimony from Judith W. Kyrala (Board Secretary) explaining the specific event that led the Board to seek the Petitioner's removal.

"This was a non-controversial issue and was only done to allow greater participation of the Members and to be in compliance with Article IV, Section 2 of the Bylaws."

  • Context: The association's defense regarding the amendment to increase the number of board members, arguing the Petitioner's complaints were "frivolous."

"Petitioner was aggressive and volatile in meetings and difficult to deal with."

  • Context: Testimony from Melanie Lashlee, Community Association Manager, regarding the Petitioner’s conduct during Board proceedings.

Actionable Insights

For Homeowners’ Associations
  • Strict Adherence to Removal Protocols: Associations must strictly follow A.R.S. § 33-1813 before attempting to remove a director. A popular vote of the members does not retroactively cure the failure to obtain a valid preliminary petition.
  • Bylaw Amendment Procedures: When changing the number of authorized directors, the board should ensure the action is taken via a vote of the shareholders/members as prescribed by bylaws, rather than by a unilateral board vote.
  • Transparency in Balloting: While the association argued that leaving delivery dates off ballots was a tactic to achieve a quorum, A.R.S. § 33-1812(A)(4) requires ballots to specify the time and date by which they must be delivered to be counted.
For Board Members
  • Authorized Communications: Individual board members should not correspond with litigants or third parties on behalf of the association without explicit Board authorization, as this can be grounds for removal actions.
  • Burden of Proof: In administrative hearings, the petitioner must provide specific evidence for each alleged violation. Merely alleging "deceit" or "fraud" is insufficient if procedural requirements (like a member vote) were technically met.

Final Order Details

The ALJ Recommended Order, which became the final agency action, included the following mandates:

  1. Prevailing Party: William P. Lee was designated the prevailing party.
  2. Future Compliance: Greenlaw is ordered to comply with A.R.S. § 33-1813(A)(1) in all future removal actions.
  3. Monetary Restitution: Greenlaw must pay Petitioner $1,000.00 (one-half of his filing fee).
  4. Civil Penalty: Greenlaw must pay a $200.00 civil penalty to the Department of Fire, Building and Life Safety.

Case Analysis: William P. Lee vs. Greenlaw Townhouses Unit Two HOA

This study guide provides a comprehensive overview of the administrative hearing between William P. Lee (Petitioner) and the Greenlaw Townhouses Unit Two HOA (Respondent). It explores the legal complexities of homeowners' association (HOA) governance, statutory compliance in board member removal, and the procedural requirements for amending association bylaws under Arizona law.

Key Concepts and Case Background

1. The Nature of the Dispute

The case originated from a petition filed by William P. Lee with the Arizona Department of Fire, Building and Life Safety. Mr. Lee, a homeowner and member of the Greenlaw Townhouses Unit Two HOA, alleged that the HOA Board of Directors violated specific Arizona Revised Statutes (A.R.S.) and the association's own bylaws regarding two primary issues:

  • Board Expansion: The process used to amend bylaws to increase the number of authorized directors on the Board.
  • Director Removal: The process used to remove Mr. Lee from his position on the Board prior to the expiration of his term.
2. Legal Standards and Jurisdiction
  • Administrative Authority: Per A.R.S. § 41-2198.01, the Office of Administrative Hearings (OAH) has the jurisdiction to hear petitions regarding violations of community documents or statutes regulating planned communities.
  • Burden of Proof: In these administrative proceedings, the burden of proof lies with the party asserting the claim (the Petitioner).
  • Standard of Proof: The standard used is a preponderance of the evidence, meaning the evidence must demonstrate that a claim is "more likely true than not."
3. Board Removal Procedures (A.R.S. § 33-1813)

The most significant legal finding in this case involved the requirements for removing a board member. Under Arizona law:

  • In associations with 1,000 or fewer members, a special meeting for removal must be preceded by a petition signed by the lesser of 25% of the members or 100 members.
  • Greenlaw conceded that it failed to obtain this signed petition before holding the meeting to remove Mr. Lee. While the members eventually voted 70 to 4 to remove him, the failure to follow the preliminary petition process rendered the removal legally deficient.
4. Bylaw Amendments and Board Composition

The dispute highlighted the tension between informal practices and formal bylaws:

  • Bylaw Article IV, Section 2: Originally set the number of directors at three.
  • The Conflict: Mr. Lee alleged the Board acted deceitfully to increase the size. However, testimony revealed that the HOA had informally elected more than three directors for years. The Board sought to formalize this to ensure an odd number of members (to avoid tie votes) and to improve the chances of reaching a quorum.
  • The Ruling: The Tribunal found that the amendment to the bylaws was conducted properly via a vote of the shareholders, as permitted by the bylaws, and that a quorum had been achieved.
5. Open Meeting Policy and Emergency Meetings

Arizona law (A.R.S. § 33-1804) mandates that HOA meetings be conducted openly.

  • Emergency Meetings: May only be called for business that cannot wait until the next regular meeting. Minutes must state the reason for the emergency and be read at the next regular meeting.
  • Policy of Openness: Statutes are to be construed in favor of open meetings to ensure members are informed and have the opportunity to speak before the Board votes.

Short-Answer Practice Questions

1. According to A.R.S. § 33-1813(A)(1), what must an association with fewer than 1,000 members receive before calling a meeting to remove a board member?

Answer: The Board must receive a petition signed by at least 25% of the members or 100 members, whichever is less.

2. What was the "straw that broke the camel's back" regarding the Board's decision to seek Mr. Lee’s removal?

Answer: Mr. Lee sent a letter to a litigant involved in a lawsuit against the HOA, signing it on behalf of the Board without the Board's knowledge or approval.

3. Why did the HOA property manager, Melanie Lashlee, state that the Board left the deadline off the absentee ballots for the board expansion vote?

Answer: It was left off to allow the property manager time to contact missing voters to ensure a quorum was achieved, which had historically been difficult for the association.

4. What was the outcome of the November 18, 2014, annual meeting regarding Mr. Lee’s status on the Board?

Answer: Although Mr. Lee was on the ballot for the 2015 Board, he was not re-elected by the membership.

5. What were the specific financial penalties and remedies ordered by the Administrative Law Judge (ALJ)?

Answer: The ALJ ordered Greenlaw to comply with A.R.S. § 33-1813(A)(1) in the future, pay half of Mr. Lee’s $2,000 filing fee ($1,000), and pay a civil penalty of $200 to the Department.

Essay Prompts for Deeper Exploration

  1. Procedural Integrity vs. Majority Will: In this case, the membership voted 70 to 4 to remove Mr. Lee, yet the removal was found to be a violation of the law. Analyze the importance of strict statutory adherence in HOA governance versus the democratic "will of the majority." Why does the law require a petition before the vote?
  2. The Role of Property Management and Legal Counsel: Testimony indicated that the Board sought legal advice and relied on a Community Association Manager to handle voting quorums. Discuss the extent to which a Board can or should be held liable for statutory violations when they are acting upon the advice of professional managers and legal counsel.
  3. Conflict and Dissension in Volunteer Boards: Using the testimony of Ms. Kyrala and Ms. Lashlee regarding Mr. Lee’s "aggressive" and "volatile" behavior, explore the legal and ethical challenges HOAs face when a single board member’s conduct is perceived as an impediment to the Board's function.

Glossary of Important Terms

Term Definition
Absentee Ballot A ballot cast by a member who is not physically present at a meeting; must specify the time and date by which it must be delivered to be counted (A.R.S. § 33-1812).
A.R.S. Arizona Revised Statutes; the codified laws of the state of Arizona.
Bylaws The established rules and regulations that govern the internal administration and management of an association.
Declarant Control A period during which the developer (declarant) maintains control over the homeowners' association.
Emergency Meeting A board meeting called to discuss urgent business that cannot be delayed; requires specific documentation of the necessity in the minutes.
Preponderance of the Evidence The standard of proof in civil and administrative cases; evidence that makes a fact more likely to be true than not.
Proxy An authorization for one person to act or vote on behalf of another (prohibited in HOA voting after the period of declarant control under A.R.S. § 33-1812).
Quorum The minimum number of members or shares that must be represented at a meeting to make the proceedings of that meeting valid.
Special Meeting A meeting called for a specific, identified purpose outside of the regularly scheduled annual or board meetings.

HOA Disputes: Lessons from a Flagstaff Boardroom Battle

1. Introduction: When Homeowners and Boards Clash

Living in a planned community is a study in shared governance, where the rights of individual homeowners are balanced against the collective authority of a Board of Directors. However, when this balance shifts, the resulting friction often leads to costly legal battles centered on the interpretation of community bylaws and the Arizona Revised Statutes (A.R.S.).

As a consultant, I frequently observe Boards prioritizing results and expediency over strict regulatory compliance. The case of William P. Lee vs. Greenlaw Townhouses Unit Two HOA serves as a quintessential cautionary tale. While the Board felt they were acting in the community's best interest to manage a "volatile" member, their failure to respect statutory "conditions precedent" led to a formal administrative rebuke. This analysis examines the fine line between effective governance and procedural non-compliance.

2. The Core of the Conflict: Allegations and Arguments

The dispute arose from a series of actions taken by the Greenlaw Townhouses Unit Two HOA Board that the Petitioner, William P. Lee, characterized as "fraudulent" and "deceitful." His complaint focused on three areas:

  1. Board Size Amendment: Allegations that the Board improperly amended Bylaw Article IV, Section 2 to increase the number of directors.
  2. Removal via "Secret Ballot": Arguments that his removal was conducted through an improper special meeting and a "secret ballot" process.
  3. Misuse of Emergency Meetings: Claims that the Board utilized emergency meetings to harass and libel him.

The Board’s defense rested on the Petitioner's allegedly "volatile" and "contentious" behavior, which they claimed hindered association operations. The "straw that broke the camel's back" was a letter the Petitioner sent to a litigant involved in a lawsuit against the HOA. While the Petitioner testified that "there was no question" the Board was aware of the letter and that he believed he had their approval, the Board and the Community Association Manager, Ms. Lashlee, testified that the Board was entirely unaware of the letter until after it was sent on their behalf.

3. The Board Size Dispute: A Victory for Governance

The Board sought to increase the number of directors from three to either five or seven. This was a pragmatic response to persistent quorum challenges; the association often struggled to achieve a quorum for meetings, resulting in expensive repeated mailings. Furthermore, the Board—supported by legal counsel—determined that an odd number of directors was necessary to prevent deadlocked decisions.

Administrative Law Judge M. Douglas ruled in favor of the HOA on this point. The Petitioner failed to provide a preponderance of evidence that the Board violated open meeting laws or voting statutes.

Proposed Change Legal Outcome Statutory Reference
Increase Board size from 3 to 5 or 7 directors. Upheld. Petitioner failed to prove a violation of bylaws or statutes. A.R.S. § 33-1812(A)(4)
Use of absentee ballots to achieve quorum. Upheld. Conducted in accordance with bylaws and legal advice. A.R.S. § 33-1804

Consultant’s Tip: The Board’s success here was not accidental. They sought a formal legal opinion and maintained minutes reflecting that they were acting on that counsel. Documentation of "why" a change is made (e.g., records of failed quorums) is your best defense against claims of "deceitful" governance.

4. The Removal Mistake: Why Procedure Is Power

While the Board prevailed on the issue of board size, they committed a fundamental strategic and legal error regarding the Petitioner's removal. Under A.R.S. § 33-1813(A)(1), for associations with 1,000 or fewer members, the Board must receive a petition signed by at least 25% of the members (or 100 votes) before they have the legal jurisdiction to call a special meeting for removal.

The Board admitted they failed to obtain this petition. They argued that the membership eventually voted 70 to 4 to remove the Petitioner, but the Judge clarified that in administrative law, the petition is a condition precedent. Without it, the subsequent vote—no matter how overwhelming—is legally void.

Furthermore, the testimony of the Community Association Manager confirmed that the removal was conducted via a "secret ballot." While the Board felt the removal was necessary for the "continued operation" of the community, they faced a harsh reality regarding the cost of their impatience. The removal occurred only 21 days before the Petitioner’s term was set to expire at the annual meeting. At that annual meeting, the Petitioner stood for re-election and lost.

The Board essentially spent over $1,200 in penalties and fees—plus their own legal defense costs—to remove a director only three weeks earlier than he would have naturally vacated the seat.

5. The Cost of Non-Compliance: Penalties and Orders

As a result of the statutory violation of A.R.S. § 33-1813(A)(1), the Judge issued the following orders:

  • Financial Restitution: The HOA was ordered to pay the Petitioner $1,000 (one-half of his filing fee).
  • Civil Penalty: A $200 penalty was assessed against the HOA, payable to the Department.
  • Compliance Mandate: The HOA was ordered to strictly adhere to A.R.S. § 33-1813(A)(1) in all future removal actions.
  • Emergency Meeting Ruling: Regarding the Petitioner’s claim of "misuse of emergency meetings," the Judge found that the Petitioner failed to satisfy the burden of proof, concluding no violation of A.R.S. § 33-1804 occurred.

6. Key Insights for HOA Members and Boards

This case provides three critical takeaways for community leaders:

1. Substance Does Not Excuse Process A board may have valid "cause" to remove a disruptive director, but statutory procedures are non-negotiable. If the law requires a petition as a prerequisite for a meeting, skipping that step invalidates every action that follows. Always treat statutory requirements as the "floor" of your authority, not a suggestion.

2. Strategic Patience Saves Thousands The Board’s decision to move forward without a petition to save time was a massive strategic failure. By not waiting the extra 21 days for the annual meeting or taking the time to collect the 25% signatures, the Board incurred significant financial and reputational costs.

3. Documentation is a Board's Best Defense The HOA won on the board-size issue specifically because they followed their bylaws for amendments and could prove they were acting on legal advice. When changing governance structures, ensure your minutes reflect that the Board consulted with professionals and that the decision was based on documented community needs (like quorum history).

7. Conclusion: The Path to Fair Governance

The final administrative decision, certified on March 24, 2015, stands as a reminder that transparency and strict adherence to the Arizona Revised Statutes protect both the association and the individual homeowner. Procedural shortcuts may seem like a solution to internal "volatility," but they often create larger, more expensive legal liabilities.

Board members should regularly review their community bylaws against current state law. When in doubt, prioritize the "process" outlined in the A.R.S. to ensure that your Board's actions are beyond legal reproach.

Case Participants

Petitioner Side

  • William P. Lee (petitioner)
    Homeowner and former board member

Respondent Side

  • Keith Hammond (attorney)
    Keith A. Hammond P.C.
  • Judith W. Kyrala (witness)
    Greenlaw Townhouses Unit Two HOA
    Board Secretary
  • Melanie Lashlee (property manager)
    HOMECO
    Community Association Manager; witness

Neutral Parties

  • M. Douglas (ALJ)
    Office of Administrative Hearings
  • Gene Palma (agency director)
    Department of Fire Building and Life Safety
  • Greg Hanchett (agency director)
    Office of Administrative Hearings
    Interim Director; certified the decision
  • Joni Cage (staff)
    Department of Fire Building and Life Safety
    c/o for Gene Palma
  • Rosella J. Rodriguez (staff)
    Office of Administrative Hearings
    Clerk who mailed copies

Scheinholtz, Martin F. vs. Corte Bella Country Club Association

Posted on by

Case Summary

Case ID 13F-H1313001-BFS
Agency DFBLS
Tribunal OAH
Decision Date 2013-06-19
Administrative Law Judge M. Douglas
Outcome The Administrative Law Judge ruled in favor of the Respondent, Corte Bella Country Club Association. The ALJ concluded that the Petitioner failed to meet the burden of proof to establish a violation of A.R.S. § 33-1804 or the Bylaws. The Board's appointment of a director during the 'new business' portion of a meeting, though not on the written agenda, was found to be permissible as members were allowed to comment prior to the vote.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Martin F. Scheinholtz Counsel Yvette D. Ansel
Respondent Corte Bella Country Club Association Counsel Troy B. Stratman

Alleged Violations

A.R.S. § 33-1804

Outcome Summary

The Administrative Law Judge ruled in favor of the Respondent, Corte Bella Country Club Association. The ALJ concluded that the Petitioner failed to meet the burden of proof to establish a violation of A.R.S. § 33-1804 or the Bylaws. The Board's appointment of a director during the 'new business' portion of a meeting, though not on the written agenda, was found to be permissible as members were allowed to comment prior to the vote.

Why this result: Petitioner failed to prove the existence of a secret meeting or that the omission of the specific item from the agenda violated the statute or bylaws.

Key Issues & Findings

Open Meeting Law / Agenda Violation

Petitioner alleged that the Board violated A.R.S. § 33-1804 by meeting secretly to decide on a board appointment prior to the open meeting and by failing to list the appointment of a new director on the agenda for the December 11, 2012 meeting.

Orders: The petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • 4
  • 29
  • 46
  • 49

Video Overview

Audio Overview

Decision Documents

13F-H1313001-BFS Decision – 344903.pdf

Uploaded 2026-04-24T10:45:45 (151.3 KB)

13F-H1313001-BFS Decision – 350917.pdf

Uploaded 2026-04-24T10:45:49 (59.6 KB)

13F-H1313001-BFS Decision – 344903.pdf

Uploaded 2026-01-25T15:28:43 (151.3 KB)

13F-H1313001-BFS Decision – 350917.pdf

Uploaded 2026-01-25T15:28:43 (59.6 KB)

Briefing Document: Martin F. Scheinholtz vs. Corte Bella Country Club Association

Executive Summary

This document provides a comprehensive analysis of the administrative law case Martin F. Scheinholtz v. Corte Bella Country Club Association (No. 13F-H1313001-BFS). The dispute centered on whether the Corte Bella Board of Directors violated Arizona’s Open Meeting Law (A.R.S. § 33-1804) by appointing a new director to fill a vacancy during a meeting where the appointment was not explicitly listed on the written agenda.

The Petitioner, Martin F. Scheinholtz, alleged that four board members reached a secret agreement prior to the December 11, 2012, meeting to appoint William Blake, thereby bypassing proper open board discussion and homeowner notice. The Respondent, Corte Bella Country Club Association, argued that the appointment was a valid exercise of board authority under their Bylaws and that the meeting complied with statutory requirements by allowing member comments before the vote.

The Administrative Law Judge (ALJ) concluded that the Petitioner failed to prove a violation of law or association bylaws. The ruling found no evidence of a secret quorum meeting and determined that the Board acted within its rights to introduce the appointment as "new business." The decision was certified as final on July 29, 2013.

Detailed Analysis of Key Themes

1. Agenda Specificity vs. "New Business"

A central theme of the case was the level of detail required in a board meeting agenda. The Petitioner argued that significant issues, such as the composition of the Board, must be explicitly listed to allow members to decide whether to attend. However, the Association demonstrated that it was common practice to introduce motions not listed on the agenda under the "new business" portion of meetings. The ALJ found that the lack of specific notice regarding the appointment did not invalidate the action, as the Board followed the procedure of allowing member comments before taking a formal vote.

2. Pre-Meeting Communications and Quorum Rules

The Petitioner alleged that a quorum of the Board (four members) had met or decided the issue privately before the open meeting. Under A.R.S. § 33-1804(D)(4), any quorum of the board meeting informally to discuss association business must comply with open meeting provisions.

  • The Evidence: Testimony revealed that only three members (Ray Valle, Walt Kearns, and Vin Petrella) were aware the motion would likely be made.
  • The Legal Finding: Because three members do not constitute a quorum for this six-member board, their private discussions did not trigger a violation of the Open Meeting Law.
3. Statutory Interpretation of A.R.S. § 33-1804

The case scrutinized the state policy regarding planned communities. A.R.S. § 33-1804(E) mandates that notices and agendas provide "reasonably necessary" information to inform members and ensure they have the ability to speak. The ALJ interpreted this in favor of the Association because:

  • Members present at the meeting were permitted to speak.
  • The Board had the legal authority under Bylaw Section 3.6 to fill vacancies.
  • The statutory requirement for specific notice for "special meetings" (A.R.S. § 33-1804(B))—which includes the "proposal to remove a director"—does not explicitly mandate the same level of granular detail for appointing a director during a regular meeting.
4. Member Recourse and Post-Action Validation

The Association highlighted that homeowners had a mechanism for recourse: the recall process. Following William Blake’s appointment, a recall petition was filed. The members of the association voted on this petition, and it failed, effectively ratifying the Board's choice. The ALJ noted this as part of the context in which the Board’s actions remained within the bounds of community governance.

Important Quotes and Context

Speaker Quote Context
Vincent James Petrella "[I] orchestrated the appointment… politics at its best." Written by Petrella on a community blog, admitting he planned the surprise motion to appoint Mr. Blake.
Regina Shanney-Saborsky "Board members were expected to act in the highest fiduciary manner." Testifying as a board member who opposed the vote, arguing that notice should have been provided.
Martin F. Scheinholtz "I saw nothing of significance in the written agenda… if I had been aware… I would have certainly attended." Explaining his grievance that the omission of the appointment from the agenda effectively excluded him.
Ray Valle "The Board had ‘every right’ to rescind the motion made during the August 29, 2012 meeting." Defending the Board’s decision to change its previous plan (to wait for an election) and instead appoint a director immediately.
Administrative Law Judge "There was no credible evidence that any of the other three members of the Board had any knowledge of the expected motion." The finding that cleared the Board of the "secret quorum" allegation.

Legal Provisions Summary

Association Bylaws: Article III, Section 3.6

The Board is empowered to declare a vacancy and appoint a successor to fill that vacancy for the remainder of the director's term in the event of a death, disability, or resignation.

Arizona Revised Statutes: A.R.S. § 33-1804
  • Open Meetings: All board meetings must be open to members.
  • Right to Speak: Members must be permitted to speak after the board discusses an item but before a formal vote is taken.
  • Agenda Access: The agenda must be available to all members attending the meeting.
  • Policy of Openness: Any interpretation of the law should be construed in favor of open meetings.

Actionable Insights

For Homeowners' Association Boards
  • Agenda Best Practices: While "new business" motions are legally permissible, omitting significant items (like board appointments) can lead to litigation and community distrust. Listing major items on the agenda is a safeguard against allegations of transparency violations.
  • Quorum Awareness: Board members must be cautious when discussing association business in small groups. If a quorum is reached in private—even via phone or email—it may constitute an illegal "informal" meeting.
  • Member Participation: Always ensure a clear opportunity for member comment after board discussion but before the vote to satisfy A.R.S. § 33-1804(A).
For Homeowners
  • Burden of Proof: In administrative hearings, the petitioner bears the burden of proving a violation by a "preponderance of the evidence" (showing it is more likely true than not).
  • Attendance Matters: If an agenda includes a "new business" or "member comments" section, homeowners should be aware that significant motions can be introduced unexpectedly.
  • Recall Mechanism: The legal system views the recall process as a primary tool for members to challenge board appointments they disagree with. If a recall fails, it serves as evidence of the community's acceptance of the board's action.

Study Guide: Martin F. Scheinholtz v. Corte Bella Country Club Association

This study guide provides a comprehensive overview of the administrative law case Martin F. Scheinholtz v. Corte Bella Country Club Association (No. 13F-H1313001-BFS). It examines the intersection of Arizona statutory law, homeowners' association (HOA) bylaws, and the transparency requirements of open meeting laws.

I. Key Concepts and Case Background

1. Legal Framework: A.R.S. § 33-1804

The central legal issue revolves around Arizona Revised Statute § 33-1804, which governs open meetings for planned communities.

  • Open Meetings: All meetings of the association and the board of directors must be open to all members or their designated representatives.
  • Member Participation: Members must be allowed to speak at an appropriate time during deliberations. Specifically, they must be permitted to speak at least once after the board discusses an item but before a formal vote is taken.
  • Agenda Availability: For meetings held after the termination of declarant control, an agenda must be made available to all members attending the meeting.
  • State Policy: Arizona law favors open meetings. Agendas and notices should contain information reasonably necessary to inform members of matters to be discussed or decided.
2. The Dispute

Petitioner Martin F. Scheinholtz alleged that the Corte Bella Country Club Association violated open meeting laws during a December 11, 2012, board meeting. The board voted 4-2 to appoint William Blake to a vacant director position. This item was not explicitly listed on the written agenda but was introduced as "new business."

3. Fiduciary Duties and Association Bylaws
  • Fiduciary Duty: Board members are expected to act in the highest fiduciary manner regarding the association's interests.
  • Bylaws (Section 3.6): The Corte Bella Bylaws explicitly authorize the board to declare a vacancy and appoint a successor to fill that vacancy for the remainder of a director's term (in cases of death, disability, or resignation).
4. Quorum and Pre-Meeting Discussions

A quorum refers to the minimum number of board members required to make proceedings valid. Under A.R.S. § 33-1804(D)(4), if a quorum meets informally to discuss association business, they must comply with open meeting and notice provisions, regardless of whether a formal vote is taken. In this case, only three members were aware the motion would be made, which did not constitute a quorum.

II. Short-Answer Practice Questions

1. Who was the Administrative Law Judge (ALJ) who presided over this case? Answer: M. Douglas.

2. What specific action did the Petitioner claim was a violation of the law? Answer: The board voted on a significant issue (appointing a new director) that was not placed on the meeting agenda, thereby preventing proper open discussion and notice to homeowners.

3. According to the Corte Bella Bylaws, what is the board's power regarding vacancies? Answer: Under Section 3.6, the board has the power to declare a vacancy (due to death, disability, or resignation) and appoint a successor to fill the remainder of the term.

4. Did the association allow members to speak before the vote on Mr. Blake's appointment? Answer: Yes. Testimony indicated that homeowners were permitted to make comments after the motion was made but before the formal vote was taken.

5. What was the outcome of the recall petition filed against William Blake after his appointment? Answer: The recall petition failed, and the majority of homeowners voted to retain Mr. Blake as a member of the board.

6. How many hours in advance must a board meeting notice be given to members under A.R.S. § 33-1804(C)? Answer: At least forty-eight hours in advance.

7. Why did the Petitioner state he did not attend the December 11, 2012, meeting? Answer: He saw nothing of significance on the written agenda and felt that major issues like board composition should have been listed to allow members to decide whether to attend.

8. What was the final ruling of the Administrative Law Judge? Answer: The ALJ concluded that the Petitioner failed to meet the burden of proof and dismissed the petition, deeming Corte Bella the prevailing party.

III. Essay Prompts for Deeper Exploration

1. The Tension Between Procedural Flexibility and Transparency Analyze the conflict between the board's right to introduce "new business" and the statutory requirement that agendas provide information "reasonably necessary" to inform members. Should a board be allowed to vote on the appointment of a new director if it is not on the agenda, even if bylaws allow the board to fill vacancies? Support your argument using the findings of fact from the case.

2. The Definition of a Meeting and Quorum Ethics Discuss the legal and ethical implications of board members discussing potential motions in small groups prior to an open meeting. At what point does a series of private conversations between board members constitute an informal meeting that violates A.R.S. § 33-1804(D)(4)? Reference the testimony of Mr. Valle and Mr. Petrella regarding their "orchestration" of the vote.

3. The Role of the Membership in Overruling Board Actions Examine the significance of the failed recall election mentioned in the testimony. To what extent does a subsequent member vote (like a recall) validate or invalidate a board's previous procedural choices? Does the failure of a recall suggest that the board's decision was ultimately aligned with the community's will, regardless of the agenda omission?

IV. Glossary of Important Terms

Term Definition
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 makes findings of fact and conclusions of law.
Burden of Proof The obligation of a party (in this case, the Petitioner) to provide enough evidence to support their claim.
Declarant Control The period during which the developer (declarant) controls the homeowners' association before handing it over to the members.
Fiduciary Duty A legal obligation to act in the best interest of another party (e.g., board members acting for the association).
Motion A formal proposal by a member of a deliberative body that the body take certain action.
Preponderance of the Evidence The standard of proof in civil cases, meaning the proposition is "more likely true than not."
Proxy An authorization given by one person to allow another to act or vote on their behalf.
Quorum The minimum number of members of an assembly or society that must be present at any of its meetings to make the proceedings of that meeting valid.
Recall Petition A formal process by which members of an association can vote to remove an elected or appointed official from office.
Rescind To revoke, cancel, or repeal a previous action or motion.

Behind the Boardroom Door: Lessons in Transparency from Scheinholtz v. Corte Bella

1. Introduction: The Surprise Agenda Item

Imagine reviewing your Homeowners Association (HOA) meeting agenda and seeing only routine administrative items. You decide to stay home, assuming nothing of consequence will occur. The next day, you discover that during that same meeting, the Board of Directors performed a procedural about-face: they rescinded a previous commitment to hold an election and instead appointed a new member to a vacant seat—a decision that set the community’s leadership for the next 15 months.

This scenario is the basis of the legal dispute in Martin F. Scheinholtz vs. Corte Bella Country Club Association (No. 13F-H1313001-BFS). The case brings a pivotal question to the forefront of community governance: Does an HOA board have the legal right to vote on a major appointment if it is not explicitly listed on the meeting agenda?

2. The Conflict: A Seat at the Table

The Petitioner, Martin F. Scheinholtz, challenged the actions taken by the Corte Bella Board during their December 11, 2012, meeting. He alleged that the board had pre-planned a major leadership change behind closed doors, effectively bypassing the community's right to a transparent process.

"On or before 11/30/12 a meeting was conducted by four Board members as evidenced by Kearns proxy to Petrella to vote on specific issues not placed on the 12/11/12 board meeting agenda. Said actions were unknown to home owners, to other board members and did not allow for proper open board discussion."

Mr. Scheinholtz's claim of a "secret meeting" rested on a proxy from board member Walter Kearns, which indicated that at least some members knew the motion was coming. However, the legal threshold for an illegal meeting is a quorum—which, for this seven-member board, required four directors. While the proxy proved that three members (Kearns, Valle, and Petrella) had discussed the matter, it did not prove that a fourth member had joined them in secret.

The Petitioner testified that he felt systematically excluded. Because the agenda was not descriptive, he chose not to attend the meeting. Had the vacancy appointment—a term running from December 2012 through March 2014—been listed, he stated he "certainly would have attended" to participate in the discussion.

3. The Board’s Defense: Bylaws and "New Business"

The Board's defense highlighted a sophisticated understanding of procedural law. A critical, yet often overlooked, detail of this case is that the Board had to undo its own previous decisions. On August 29, 2012, the Board had passed a motion to fill the vacancy with the "fifth highest vote-getter" from the upcoming 2013 election. To appoint William Blake on December 11, they first had to move to rescind that previous motion during the "new business" portion of the meeting.

The following table compares the Petitioner’s expectations of transparency against the Board’s reliance on their governing documents:

Petitioner's Perspective (Transparency/Notice) Board’s Perspective (Legal Authority/Bylaws)
Major issues like Board composition must be on the written agenda so members can decide whether to attend. Bylaws § 3.6 expressly grant the Board power to declare a vacancy and appoint a successor without a community vote.
The "unknown" nature of the motion and the rescission of the previous election plan prevented open discussion. Board members have the right to introduce motions under "new business" even if they are not on the pre-printed agenda.
The lack of notice was an "orchestrated" attempt to exclude members from a "huge" leadership issue. Because members present were allowed to speak before the vote, the "open meeting" requirement was satisfied. (Bylaws § 3.6)

Vincent James Petrella, who admitted to "orchestrating" the appointment, even referred to the maneuver in a community blog as "politics at its best." Despite this admission of political strategy, the Board argued that their technical compliance with the law superseded the Petitioner's desire for better notice.

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

To understand why the Board’s actions held up in court, we must look at the specific nuances of Arizona Revised Statute § 33-1804. As a legal expert, I must point out a vital distinction: the law treats Board Meetings and Special Meetings of the Membership differently. While notice for a special membership meeting must explicitly state a purpose like "removing a director," the rules for regular board meetings are more flexible.

Key provisions of A.R.S. § 33-1804 include:

  • The Right to Speak: The board is legally required to permit a member to speak once after the board has discussed a specific item but before the board takes a formal vote on that item.
  • Information Standards: Agendas must be available to those attending and should contain information "reasonably necessary" to inform members of the matters to be discussed.
  • The Policy of Openness: Arizona law directs that these statutes be construed in favor of open meetings. However, the ALJ noted that "reasonably necessary" does not strictly forbid a board from raising new business that wasn't anticipated when the agenda was posted.
  • Bylaw Seniority: Section 3.6 of the Corte Bella Bylaws specifically empowered the board to fill vacancies, providing a clear legal track for their actions independent of the state's general preference for elections.
5. The Verdict: Why the Petition Was Dismissed

The Administrative Law Judge (ALJ) applied the "Preponderance of the Evidence" standard. In the HOA context, this means the burden of proof is on the homeowner. Mr. Scheinholtz had to prove it was "more likely than not" that a violation occurred. His feeling of being excluded, while understandable, was not enough to overcome the Board’s technical adherence to the law.

The ALJ’s dismissal was based on three primary findings:

  1. No Illegal Quorum: There was no evidence that four or more members met secretly. The "orchestration" by three members did not constitute a "meeting" under the law.
  2. The "Right to Speak" Was Honored: Despite the item not being on the agenda, two homeowners who were present were allowed to comment on the motion before the vote was taken. This single act satisfied the statutory requirement for an open meeting.
  3. Community Resolution: The ALJ noted that the community later attempted to recall the appointee, Mr. Blake. That recall petition failed, and the majority of homeowners voted to retain him, suggesting a level of finality to the Board’s controversial but legal action.
6. Critical Takeaways for Homeowners and HOA Boards

The Scheinholtz case offers three vital lessons for anyone involved in community governance:

  1. The Power of Bylaws (The "Election" Myth): Homeowners often assume that major leadership changes must involve a community-wide election. However, Bylaws (like Corte Bella’s § 3.6) often grant boards the absolute authority to fill vacancies by appointment. The written Bylaws are the final authority.
  2. The "New Business" Loophole: While state policy encourages detailed agendas, boards are legally permitted to introduce and vote on significant motions during "new business" without prior notice. As long as a quorum didn't decide the matter in a secret meeting beforehand, "pre-planning" by a minority of the board is legally permissible.
  3. The Importance of the "Right to Speak": For a Board, allowing public comment after a motion is made but before the vote is a powerful legal shield. It transforms a potentially "closed-door" maneuver into a legally compliant "open meeting" action, even if the public is surprised by the topic.
7. Conclusion: The Balance of Power

Ultimately, the petition was dismissed, and the Board’s actions were deemed legal. Scheinholtz v. Corte Bella demonstrates that "politics at its best" is not necessarily "governance at its worst" in the eyes of the law. While the Board's decision to rescind their election plan and appoint a member via a non-agenda motion was controversial, it stayed within the bounds of Arizona law and the Association’s Bylaws.

For homeowners, the lesson is clear: to have a voice, you must be present. Because "New Business" can change the course of a community in minutes, staying informed requires reading the fine print of both State Law and your Association Bylaws. Understanding these rules is the only way to ensure the "Boardroom Door" remains open to everyone.

Case Participants

Petitioner Side

  • Martin F. Scheinholtz (petitioner)
    Corte Bella Country Club Association (Member)
    Homeowner alleging violation of open meeting laws
  • Yvette D. Ansel (attorney)
    Hymson Goldstein & Pantiliat, PLLC

Respondent Side

  • Troy B. Stratman (attorney)
    Mack Watson & Stratman, P.L.C.
  • Regina Shanney-Saborsky (witness)
    Corte Bella Country Club Association
    Board Member; testified she voted against the appointment
  • William Blake (board member)
    Corte Bella Country Club Association
    Appointed to fill vacant director position
  • Robert Moberly (witness)
    Corte Bella Country Club Association
    Board Member
  • Ray Valle (witness)
    Corte Bella Country Club Association
    Former Board Member; testified regarding the motion to appoint Blake
  • Walter E. Kearns (board member)
    Corte Bella Country Club Association
    Mentioned in testimony/proxy
  • Vincent James Petrella (witness)
    Corte Bella Country Club Association
    Former Board Member; admitted to 'orchestrating' the appointment
  • Robert Rosenberg (board member)
    Corte Bella Country Club Association
    Mentioned in testimony as not being aware of the motion beforehand
  • James R. Williams (witness)
    Corte Bella Country Club Association
    Board President

Neutral Parties

  • M. Douglas (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge
  • Gene Palma (agency director)
    Department of Fire, Building and Life Safety
  • Cliff J. Vanell (director)
    Office of Administrative Hearings
    Certified the ALJ decision
  • Joni Cage (recipient)
    Department of Fire, Building and Life Safety
    c/o for Gene Palma
  • Rosella J. Rodriguez (clerk)
    Office of Administrative Hearings
    Mailed/faxed the certification

Sellers, John & Debborah vs. Crossings at Willow Creek Property

Posted on by

Case Summary

Case ID 12F-H1212002-BFS, 12F-H1212009-BFS
Agency Department of Fire, Building and Life Safety
Tribunal OAH
Decision Date 2013-01-17
Administrative Law Judge M. Douglas
Outcome The ALJ dismissed both petitions (consolidated). The judge ruled that the Architectural Review Committee meetings were not regularly scheduled and thus not subject to open meeting notice requirements. Additionally, the judge ruled that the records requested by Petitioners were properly withheld under attorney-client privilege.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John and Debborah Sellers Counsel —
Respondent Crossings at Willow Creek Property Owners Association Counsel Joshua M. Bolen

Alleged Violations

A.R.S. § 33-1804
A.R.S. § 33-1805

Outcome Summary

The ALJ dismissed both petitions (consolidated). The judge ruled that the Architectural Review Committee meetings were not regularly scheduled and thus not subject to open meeting notice requirements. Additionally, the judge ruled that the records requested by Petitioners were properly withheld under attorney-client privilege.

Why this result: Petitioners failed to prove by a preponderance of the evidence that the HOA violated statutes or governing documents; specific exceptions for non-regularly scheduled meetings and privileged records applied.

Key Issues & Findings

Failure to notice and conduct publicly ARC Meetings

Petitioners alleged that the ARC failed to notice and conduct meetings publicly. The HOA argued ARC meetings are not regularly scheduled and occur only as necessary, thus not requiring notice.

Orders: Petition dismissed; no action required.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Failure to provide requested HOA records

Petitioners requested attorney invoices and communications. The HOA denied the request based on attorney-client privilege.

Orders: Petition dismissed; no action required.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Video Overview

Audio Overview

Decision Documents

12F-H1212002-BFS Decision – 321619.pdf

Uploaded 2026-04-24T10:39:42 (126.6 KB)

12F-H1212002-BFS Decision – 327760.pdf

Uploaded 2026-04-24T10:39:45 (58.9 KB)

12F-H1212002-BFS Decision – 321619.pdf

Uploaded 2026-01-25T15:26:16 (129.8 KB)

12F-H1212002-BFS Decision – 327760.pdf

Uploaded 2026-01-25T15:26:16 (58.9 KB)

Briefing Document: Sellers v. Crossings at Willow Creek Property Owners Association

Executive Summary

This briefing document summarizes the administrative litigation (Case Nos. 12F-H1212002-BFS and 12F-H1212009-BFS) involving John and Debborah Sellers (Petitioners) and the Crossings at Willow Creek Property Owners Association (Respondent). The disputes, heard by the Arizona Office of Administrative Hearings, centered on two primary allegations: the Association’s failure to notice and conduct public Architectural Review Committee (ARC) meetings, and the Association’s refusal to provide specific records, including attorney invoices and third-party communications.

Following hearings held on September 26, 2012, and January 4, 2013, Administrative Law Judge (ALJ) M. Douglas issued a decision on January 17, 2013, dismissing both petitions. The ALJ concluded that the ARC meetings were not "regularly scheduled" and therefore not subject to statutory notice requirements. Furthermore, the ALJ ruled that the records withheld by the Association were protected under attorney-client privilege and pending litigation exceptions. This decision was officially certified as the final administrative decision on February 28, 2013.

Detailed Analysis of Key Themes

1. The Distinction of "Regularly Scheduled" Meetings

A central theme of the litigation was the interpretation of A.R.S. § 33-1804(A), which mandates that "regularly scheduled committee meetings" be open to all members. The Petitioners argued that the ARC’s failure to notice these meetings violated both state law and community documents.

However, testimony from Association representatives established a different operational reality:

  • Ad Hoc Scheduling: ARC meetings were described as occurring "from time to time as necessary" or "on demand," depending entirely on the submission of architectural applications.
  • Bylaw Compliance: The Association’s Bylaws (Article XI Section 3) explicitly state the ARC shall meet "from time to time as necessary."
  • Informal Venue: Testimony revealed that meetings often took place at committee members' residences and, while not formally noticed, had never been closed to a member who specifically requested to attend.

The ALJ determined that because the meetings were irregular and demand-driven rather than "regularly scheduled," the Association was not legally obligated to provide public notice.

2. Statutory Records Disclosure vs. Legal Privilege

The second major theme involved the balance between a homeowner's right to examine Association records (A.R.S. § 33-1805) and the Association's right to protect sensitive legal information. The Petitioners sought invoices from the Association’s attorneys and communications with third parties, arguing these did not constitute privileged material.

The Association successfully defended its refusal to disclose these documents by citing:

  • Pending Litigation: The City of Prescott was involved in civil litigation with the Association at the time of the hearing.
  • Attorney-Client Privilege: The Association argued that the withheld documents related to legal advice or pending/contemplated litigation.
  • Statutory Exceptions: A.R.S. § 33-1805(B) explicitly allows associations to withhold records related to privileged communications and pending litigation.

The ALJ found that the Association’s refusal was consistent with these statutory protections, and the Petitioners failed to prove that the refusal violated the law or community documents.

3. Burden of Proof in Administrative Proceedings

The case highlights the procedural requirement that the party asserting a claim—in this case, the Petitioners—bears the "burden of proof." Under Arizona Administrative Code R2-19-119, the standard of proof is a "preponderance of the evidence," meaning the petitioner must prove their claims are "more likely true than not." The ALJ repeatedly noted that the Petitioners failed to meet this threshold for both the meeting notice and the records disclosure claims.

Important Quotes and Context

Regarding ARC Meeting Frequency

"The Architectural Review Committee shall meet from time to time as necessary to perform its duties hereunder… The Committee shall keep and maintain a written record of all actions taken by it at such meetings or otherwise."

— Crossings’ Bylaws, Article XI Section 3 (Context: This provision was used to establish that the ARC was not required to have a regular, predictable schedule).

"ARC meetings are not noticed but are open to all members… the committee has never denied access to any member to attend an ARC meeting… the committee has never received a request from an owner to attend an ARC meeting."

— Brenda Doziar, Board and ARC Member (Context: Testimony provided to show the Association did not intentionally exclude members, but rather operated informally based on submission volume).

Regarding Open Meeting Statutes

"Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members' association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association…"

— A.R.S. § 33-1804(A) (Context: The legal baseline for the Petitioners’ argument, which ultimately failed because the ARC meetings were deemed not "regularly scheduled").

Regarding Records Exceptions

"Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to any of the following: 1. Privileged communication between an attorney for the association and the association. 2. Pending litigation."

— A.R.S. § 33-1805(B) (Context: The legal justification used by the Association to deny the Petitioners' request for attorney invoices and third-party correspondence).

Actionable Insights

Based on the findings and conclusions of the Administrative Law Judge, the following insights can be derived regarding Association governance and member rights:

  • Definition of Committee Schedules: Associations can avoid the statutory requirement for public meeting notices if committees (like the ARC) meet on an "as-needed" basis rather than on a "regularly scheduled" basis. If a committee meeting is not on a fixed recurring schedule, it may not trigger the notice requirements of A.R.S. § 33-1804.
  • Documentation of "As-Needed" Status: To defend against claims of secret meetings, Associations should ensure their Bylaws or CC&Rs explicitly state that committees meet "as necessary" or "from time to time," and they should maintain minutes of these meetings to document all actions taken.
  • Protection of Legal Records: Associations are within their rights to withhold attorney invoices and correspondence if they relate to pending litigation or legal advice. Homeowners seeking such records face a high bar to prove that such documents do not fall under the statutory exceptions of A.R.S. § 33-1805.
  • Member Requests for Attendance: While notice may not be required for ad hoc meetings, refusing a member's specific request to attend an open session could create legal vulnerability. In this case, the Association’s defense was strengthened by the fact that they had never denied a request for attendance.
  • Burden of Evidence: Petitioners in administrative hearings must provide concrete evidence that a violation occurred. Mere allegations of non-compliance are insufficient to meet the "preponderance of the evidence" standard required to prevail against an Association.

Study Guide: Sellers v. Crossings at Willow Creek Property Owners Association

This study guide provides a comprehensive overview of the administrative legal proceedings between John and Debborah Sellers and the Crossings at Willow Creek Property Owners Association. It examines the application of Arizona Revised Statutes (A.R.S.) regarding homeowners' association (HOA) governance, open meeting requirements, and the disclosure of association records.

1. Case Overview and Key Entities

The consolidated cases (No. 12F-H1212002-BFS and No. 12F-H1212009-BFS) involve a dispute over the transparency of committee meetings and the accessibility of specific legal and financial records within a planned community.

Key Parties and Entities
Entity Role/Description
John and Debborah Sellers Petitioners; homeowners and members of the Crossings at Willow Creek.
Crossings at Willow Creek POA Respondent; the homeowners' association (HOA) governing the community in Prescott, Arizona.
Office of Administrative Hearings The Arizona state agency responsible for conducting the hearing and issuing the decision.
Dept. of Fire, Building and Life Safety The state department authorized to receive petitions from HOA members and associations.
Architectural Review Committee (ARC) A committee within the HOA responsible for reviewing property applications and architectural guidelines.
Significant Individuals
  • M. Douglas: The Administrative Law Judge (ALJ) who presided over the hearings and issued the Findings of Fact and Conclusions of Law.
  • G. Eugene Neil: Interim City Attorney for Prescott; testified regarding public records and ongoing litigation between the City and the HOA.
  • Brenda Doziar: HOA Board member and ARC member; provided testimony on ARC meeting procedures.
  • Robert Balzano: Former statutory agent and manager of the HOA; testified regarding the lack of regularly scheduled ARC meetings.
  • Cliff J. Vanell: Director of the Office of Administrative Hearings; certified the ALJ decision as the final administrative decision.

2. Core Legal Issues and Arguments

Issue 1: ARC Meeting Transparency

The Petitioners alleged that the HOA failed to notice and conduct Architectural Review Committee (ARC) meetings publicly, in violation of A.R.S. § 33-1804 and community documents.

  • Petitioner Argument: ARC meetings should be noticed and open to the public.
  • Respondent Argument: ARC meetings are not "regularly scheduled" but occur "on demand" based on submissions; therefore, statutory notice requirements for regularly scheduled meetings do not apply.
Issue 2: Access to Records

The Petitioners alleged the HOA refused to provide specific records, specifically attorney invoices and communications between HOA attorneys and third parties.

  • Petitioner Argument: Communications with third parties are not protected by attorney-client privilege. They also sought invoices to understand the HOA's legal expenditures.
  • Respondent Argument: The withheld records were protected under attorney-client privilege and related to pending litigation, which are statutory exceptions to the disclosure requirement.

3. Statutory Framework and Bylaws

The case relies heavily on specific Arizona statutes and the HOA's internal bylaws:

A.R.S. § 33-1804: Open Meetings
  • General Rule: All meetings of the association, the board, and any regularly scheduled committee meetings are open to all members or their designated representatives.
  • Executive Session Exceptions: Meetings may be closed only for specific reasons, including legal advice, pending/contemplated litigation, personal/health/financial info of members or employees, and job performance discussions.
A.R.S. § 33-1805: Association Records
  • General Rule: Financial and other records must be made reasonably available for examination within ten business days.
  • Withholding Exceptions: Records may be withheld if they relate to privileged attorney-client communications, pending litigation, or specific personal/health/financial records of individuals.
A.R.S. § 12-2234: Attorney-Client Privilege
  • In civil actions, attorneys and their staff cannot be examined regarding communications made by the client or advice given during professional employment without the client's consent.
HOA Bylaws (Article XI, Section 3)
  • The ARC is directed to meet "from time to time as necessary."
  • The committee must maintain a written record of all actions taken.

4. Short-Answer Practice Questions

1. According to the ALJ's decision, why did the ARC meetings not require public notice? Answer: The meetings were found to be held "as necessary" or "on demand" rather than being "regularly scheduled." A.R.S. § 33-1804 only mandates notice and open access for regularly scheduled committee meetings.

2. What is the "burden of proof" in this administrative hearing, and who carries it? Answer: The burden of proof falls on the party asserting a claim (the Petitioners). The standard of proof is a "preponderance of the evidence."

3. What does "preponderance of the evidence" mean in a legal context? Answer: It means the evidence must be sufficient to persuade the finder of fact that the proposition is "more likely true than not."

4. Name two reasons an HOA board may legally close a portion of a meeting (Executive Session). Answer: Possible answers include: Legal advice from an attorney, pending or contemplated litigation, personal/financial information of a member/employee, or matters relating to employee job performance.

5. How many business days does an association have to fulfill a request for the examination of records? Answer: Ten business days.

6. Under A.R.S. § 33-1805, what is the maximum per-page fee an association can charge for copies of records? Answer: Fifteen cents per page.

5. Essay Prompts for Deeper Exploration

1. The Distinction Between "Regularly Scheduled" and "As Necessary": Analyze how the distinction between "regularly scheduled" and meetings held "from time to time" impacted the outcome of Case No. 12F-H1212002-BFS. Discuss whether this distinction creates a potential loophole for HOAs to avoid transparency, or if it serves as a practical necessity for committees with fluctuating workloads.

2. Attorney-Client Privilege in the Context of HOA Governance: The Petitioners argued that communications between HOA attorneys and third parties should not be privileged. Based on A.R.S. § 12-2234 and the ALJ's conclusions, evaluate the scope of attorney-client privilege. How does the law balance a homeowner's right to financial transparency (specifically regarding legal invoices) with the association’s right to confidential legal strategy?

3. The Role of Testimony in Establishing Facts: Examine the testimony of Brenda Doziar and Robert Balzano. How did their descriptions of the ARC's operational habits (e.g., meeting at private residences, lack of a formal schedule) influence the ALJ’s Findings of Fact? Contrast their testimony with the Petitioners' claims to show why the Petitioners failed to meet the preponderance of the evidence standard.

6. Glossary of Terms

  • Administrative Law Judge (ALJ): An official who presides over an administrative hearing, hears evidence, and makes findings of fact and legal conclusions.
  • A.R.S. (Arizona Revised Statutes): The codified laws of the State of Arizona.
  • Burden of Proof: The obligation of a party in a trial or hearing to produce the evidence that will prove the claims they have made against the other party.
  • Community Documents: The collective term for an HOA's declaration, bylaws, and other governing rules.
  • Executive Session: A portion of a meeting that is closed to the general membership to discuss sensitive or confidential matters as defined by statute.
  • Member: In the context of an HOA, a property owner who is subject to the association's governing documents and holds voting rights.
  • Preponderance of the Evidence: A legal standard where a claim is proven if it is shown to be more likely true than not (greater than 50% probability).
  • Respondent: The party against whom a petition or complaint is filed; in this case, the Crossings at Willow Creek POA.
  • Statutory Agent: An individual or entity designated to receive legal documents and service of process on behalf of a corporation or association.

HOA Transparency and Member Rights: Lessons from Sellers v. Crossings at Willow Creek

1. Introduction: The Tension Between Homeowners and Associations

Friction between homeowners and Property Owners Associations (POAs) often centers on the perceived "black box" of governance. Many homeowners feel that critical decisions—especially those regarding the aesthetic and structural integrity of the community—are made behind closed doors without proper oversight. Conversely, volunteer boards and their agents often struggle to navigate the granular requirements of state law while managing the day-to-day administrative needs of the association.

This tension is perfectly encapsulated in the consolidated cases of John and Debborah Sellers v. Crossings at Willow Creek Property Owners Association (2013). By analyzing this administrative ruling, we can gain a clearer understanding of how Arizona law distinguishes between "open meetings" and "access to records." For homeowners and board members alike, this case serves as a vital lesson in the nuances of the Arizona Revised Statutes (A.R.S.) and the high evidentiary bar required to prove a violation of member rights.

2. The Conflict Over Architectural Review Committee (ARC) Meetings

In the first petition (12F-H1212002-BFS), the Sellers alleged that the Crossings at Willow Creek failed to provide notice for and conduct Architectural Review Committee (ARC) meetings in a public forum. They contended that the lack of formal notice violated A.R.S. § 33-1804 and the community’s governing documents.

The Association’s defense relied on the operational reality of the committee. Brenda Doziar, a member of both the Board and the ARC, testified that the committee’s process was not a standard deliberative assembly but a functional review of applications. Specifically, she noted that the ARC meets to review plans alongside the association’s professional architect to determine if a project should be accepted, modified, or rejected.

Robert Balzano, the former manager and statutory agent for the Association, further testified that the ARC did not follow a fixed calendar. Instead, meetings were held "on-demand" at private residences based on the volume of architectural submissions. The legal pivot point of the case was the specific language found in Arizona's open meeting law for planned communities:

"Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members' association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association…" — A.R.S. § 33-1804(A)

3. Defining "Regularly Scheduled": The Legal Turning Point

The Administrative Law Judge (ALJ) focused on the distinction between a "regularly scheduled" meeting and one that occurs intermittently. The Association’s Bylaws (Article XI, Section 3) explicitly state that the ARC shall meet "from time to time as necessary" to perform its duties. Because the meetings were contingent upon the receipt of homeowner applications rather than a set monthly or quarterly schedule, they did not fall under the statutory mandate for public notice.

The ALJ dismissed the complaint regarding meeting notices based on these factors:

  • Contingent Nature of Meetings: Evidence showed that meetings depended entirely on architectural submissions; in some months, the committee met multiple times, while in others, it did not meet at all.
  • Adherence to Bylaws: The Association followed its own governing documents, which authorized the committee to act "from time to time as necessary" rather than on a regular schedule.
  • Professional Consultation: Testimony established that the meetings involved technical reviews with an architect, a process that is functionally different from a standard board meeting.
  • Accessibility Without Formal Notice: The committee never denied a member’s request to attend, and the specific applicant was always invited to the meeting where their plans were discussed.

4. The Records Dispute: What Can Homeowners Actually See?

The second petition (12F-H1212009-BFS) concerned the Sellers' demand for records, specifically invoices from the association’s legal counsel—the firm of Carpenter, Hazlewood, Delgado & Bolen, PLC—and communications between those attorneys and third parties. The Sellers argued that third-party communications, by definition, cannot be protected by attorney-client privilege.

The Association successfully countered this by invoking A.R.S. § 33-1805, which governs association records, and A.R.S. § 12-2234, which protects attorney-client communications. The sensitivity of these records was heightened by a pending Declaratory Action—a legal proceeding initiated by the City of Prescott against the association members to determine the legal rights and obligations of the parties involved.

The case established a clear hierarchy of record accessibility:

  • Public Records: The City of Prescott provided the Petitioners with ninety pages of documents via subpoena. As these were public records held by a municipality, they were fully accessible.
  • Privileged Association Records: Internal documents, including attorney invoices and correspondence with the insurance agent, Larry Harding, were protected. Mr. Harding testified that such correspondence typically relates to potential insurance claims, which are sensitive legal matters. Under A.R.S. § 33-1805(B), the Association is permitted to withhold records that "tip its hand" regarding pending litigation or privileged legal advice.

5. Final Verdict: The ALJ Decision

On January 17, 2013, ALJ M. Douglas issued a decision dismissing both petitions, a ruling later certified by Director Cliff J. Vanell. The decision was rooted in the burden of proof established by the Arizona Administrative Code (A.A.C.) R2-19-119, which requires the party asserting a claim to prove their case by a "Preponderance of the Evidence."

In simple terms, the Sellers were required to prove that their allegations were "more likely true than not." The ALJ concluded they failed to meet this burden. The Association proved that its ARC meetings were not "regularly scheduled" and that the withheld legal records fell squarely within the statutory exceptions for attorney-client privilege and pending litigation.

6. Key Takeaways for HOA Members and Boards

The Sellers v. Crossings at Willow Creek case serves as a definitive guide for interpreting A.R.S. Title 33. Homeowners and board members should internalize the following lessons:

  1. The "Regularly Scheduled" Threshold: Under A.R.S. § 33-1804(A), only committee meetings that occur on a set, recurring basis require formal notice to the membership. "On-demand" or "as-necessary" meetings are legally distinct and do not carry the same notice requirements.
  2. Statutory Symmetry in Confidentiality: There is a direct parallel between the reasons a board may close a meeting under A.R.S. § 33-1804(A)(1-5) and the reasons it may withhold records under A.R.S. § 33-1805(B). Legal advice and pending litigation are strictly protected in both contexts to preserve the association's legal position.
  3. The Importance of Precise Bylaws: The phrase "from time to time as necessary" in the Crossings' Bylaws was a primary factor in the Association's victory. Boards must ensure their governing documents are aligned with state statutes to provide maximum operational flexibility.
  4. The Burden of Proof is on the Accuser: Per A.A.C. R2-19-119, the association is not required to prove it followed the law; rather, the homeowner must provide credible evidence that a violation occurred. Mere disagreement with a board's administrative style does not constitute a legal violation.

As a homeowner, you have a right to transparency, but that right is not unlimited. As a board member, you have a duty to be open, but you also have a duty to protect the association’s legal interests. Review your community’s bylaws and A.R.S. Title 33 immediately. Understanding these boundaries is the only way to ensure your community remains governed by law rather than by conflict.

Case Participants

Petitioner Side

  • John Sellers (petitioner)
    Homeowner
    appeared through John Sellers
  • Debborah Sellers (petitioner)
    Homeowner
    Testified; interior designer

Respondent Side

  • Joshua M. Bolen (attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC
    Attorney for Crossings at Willow Creek Property Owners Association
  • Brenda Doziar (board member)
    Crossings at Willow Creek Property Owners Association
    ARC member
  • Robert Balzano (witness)
    Former statutory agent and manager of Crossings
  • Kenneth Burnett (board member)
    Crossings at Willow Creek Property Owners Association

Neutral Parties

  • M. Douglas (ALJ)
    Office of Administrative Hearings
  • G. Eugene Neil (witness)
    City of Prescott
    Interim City Attorney
  • Larry Harding (witness)
    Commercial insurance agent for Crossings
  • Gene Palma (agency director)
    Department of Fire, Building and Life Safety
  • Cliff J. Vanell (agency director)
    Office of Administrative Hearings
    Director who certified the decision
  • Joni Cage (agency staff)
    Department of Fire, Building and Life Safety
    Recipient of decision copy

Sellers, John & Debborah vs. Crossings at Willow Creek Property Owners Association

Posted on by

Case Summary

Case ID 12F-H1212002-BFS; 12F-H1212009-BFS
Agency Department of Fire, Building and Life Safety
Tribunal Office of Administrative Hearings
Decision Date 2013-01-17
Administrative Law Judge M. Douglas
Outcome The ALJ dismissed both petitions. Regarding the ARC meetings, the judge ruled they were not regularly scheduled and thus notice was not required. Regarding the records request, the judge ruled the withheld documents were protected by attorney-client privilege.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John and Debborah Sellers Counsel —
Respondent Crossings at Willow Creek Property Owners Association Counsel Joshua M. Bolen

Alleged Violations

A.R.S. § 33-1804
A.R.S. § 33-1805

Outcome Summary

The ALJ dismissed both petitions. Regarding the ARC meetings, the judge ruled they were not regularly scheduled and thus notice was not required. Regarding the records request, the judge ruled the withheld documents were protected by attorney-client privilege.

Why this result: Petitioners failed to prove by a preponderance of the evidence that the HOA violated statutes or CC&Rs; applicable laws provide exceptions for irregular meetings and privileged records.

Key Issues & Findings

Failure to notice and conduct publicly ARC Meetings

Petitioners alleged the HOA failed to notice and conduct publicly Architectural Review Committee (ARC) meetings. The ALJ found that ARC meetings were held 'as necessary' and were not 'regularly scheduled,' and therefore did not require notice under the statute or Bylaws.

Orders: Petition dismissed; no action required.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1804

Failure to provide requested HOA records

Petitioners requested attorney invoices and communications. The HOA refused based on attorney-client privilege. The ALJ found the refusal was justified under statutory exceptions for privileged communication.

Orders: Petition dismissed; no action required.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1805
  • A.R.S. § 12-2234

Video Overview

Audio Overview

Decision Documents

12F-H1212009-BFS Decision – 321619.pdf

Uploaded 2026-04-24T10:41:28 (129.8 KB)

12F-H1212009-BFS Decision – 327760.pdf

Uploaded 2026-04-24T10:41:32 (58.9 KB)

12F-H1212009-BFS Decision – 321619.pdf

Uploaded 2026-01-25T15:27:15 (129.8 KB)

12F-H1212009-BFS Decision – 327760.pdf

Uploaded 2026-01-25T15:27:15 (58.9 KB)

Briefing Document: Administrative Law Decision Regarding Sellers v. Crossings at Willow Creek Property Owners Association

Executive Summary

This briefing document summarizes the administrative legal proceedings and final decision in the consolidated cases of John and Debborah Sellers (Petitioners) vs. Crossings at Willow Creek Property Owners Association (Respondent), docket numbers 12F-H1212002-BFS and 12F-H1212009-BFS.

The disputes originated from two primary grievances filed by the homeowners: first, that the Association’s Architectural Review Committee (ARC) failed to notice and conduct public meetings; and second, that the Association improperly withheld specific records, including attorney invoices and third-party communications.

Following hearings held on September 26, 2012, and January 4, 2013, Administrative Law Judge (ALJ) M. Douglas ruled in favor of the Association on all counts. The ALJ found that the Petitioners failed to meet the burden of proof required to show that the Association violated Arizona Revised Statutes (A.R.S.) or its own governing documents. This decision was certified as the final administrative action by the Department of Fire, Building and Life Safety on February 28, 2013.

Detailed Analysis of Key Themes

1. Architectural Review Committee (ARC) Transparency and Notice

A central theme of the first petition was the requirement for public notice and open attendance at ARC meetings. The Petitioners alleged that the Association violated A.R.S. § 33-1804 and Community Documents by not noticing these meetings.

  • Statutory Interpretation: Under A.R.S. § 33-1804(A), meetings of the board of directors and "any regularly scheduled committee meetings" must be open to all members.
  • "Regularly Scheduled" vs. "As Necessary": The Association’s defense rested on the distinction between "regularly scheduled" and "as necessary." Testimony from Board members and the former manager established that the ARC met only when applications were submitted.
  • Bylaw Compliance: The Association’s Bylaws (Article XI, Section 3) explicitly state that the ARC shall meet "from time to time as necessary."
  • Outcome: Because the meetings were determined to be "on demand" rather than "regularly scheduled," the ALJ concluded that formal public notice was not statutory required. Furthermore, testimony indicated that while meetings weren't noticed, they were never closed to members who requested to attend.
2. Access to Association Records and Attorney-Client Privilege

The second petition focused on the Association’s refusal to provide certain documents, specifically attorney invoices and communications with third parties.

  • Records Request Scope: Petitioners sought invoices from the Association’s legal counsel (Carpenter Hazlewood) and correspondence with third parties, arguing these should not be protected by privilege.
  • Statutory Exceptions: A.R.S. § 33-1805(B) allows an association to withhold records relating to privileged communications between an attorney and the association, as well as records concerning pending litigation.
  • Legal Basis for Refusal: The ALJ found that the Association’s refusal was grounded in protected legal exceptions. A.R.S. § 12-2234 protects communications made by a client to an attorney for the purpose of obtaining legal advice.
  • Outcome: The ALJ determined that the Petitioners failed to prove that the withheld documents were outside the scope of legally protected privileged material or pending litigation exceptions.
3. Evidentiary Standards and Burden of Proof

The case underscores the high bar for Petitioners in administrative hearings regarding planned communities.

  • Preponderance of the Evidence: The standard of proof required the Petitioners to show that their claims were "more likely true than not."
  • Failure of Proof: In both petitions, the ALJ found the Petitioners' evidence insufficient to demonstrate a violation of the law or the Association’s CC&Rs (Covenants, Conditions, and Restrictions).

Important Quotes with Context

Quote Source/Context Significance
"The Architectural Review Committee shall meet from time to time as necessary to perform its duties hereunder." Association Bylaws, Article XI, Section 3 This provided the legal basis for the Association to conduct ARC meetings without a fixed, regular schedule.
"ARC meetings are not noticed but are open to all members… the committee has never denied access to any member to attend an ARC meeting." Brenda Doziar (Board/ARC Member) Established that although notice was absent, the committee was not operating in a "closed" manner that violated the spirit of open meetings.
"The committee meetings take place at one of the committee member’s residence." Brenda Doziar (Board/ARC Member) Clarified the informal and variable nature of the "as necessary" meetings.
"Credible testimony and evidence established that Crossings’ refusal to release the requested documents was based upon the exceptions provided by applicable statute for attorney/client privileged material." ALJ Conclusions of Law Validated the Association's right to protect sensitive legal information under A.R.S. § 33-1805.
"Petitioners failed to prove by a preponderance of the evidence that Crossings violated the provisions of A.R.S. § 33-1804 and/or Crossings’ CC&Rs." ALJ Findings The core justification for the dismissal of the petitions.

Actionable Insights

For Association Governance
  • Define Meeting Schedules Clearly: Associations should distinguish between "regularly scheduled" committee meetings and "as needed" meetings in their governing documents. If a committee meets on a fixed schedule (e.g., the first Monday of every month), it must follow formal notice procedures under Arizona law.
  • Maintain Records of Inquiries: The Association’s defense was bolstered by testimony that they had never denied a request to attend a meeting. Keeping logs of member requests to attend meetings or view records can provide a defense against claims of non-transparency.
  • Consistency in Bylaws: Ensure that internal practices (like ARC meetings) align exactly with the language in the Bylaws (e.g., meeting "as necessary").
For Records Management
  • Understand Privilege Boundaries: Associations are entitled to withhold documents related to legal advice and pending litigation. However, they must be prepared to justify these withholdings based on A.R.S. § 33-1805 and § 12-2234.
  • Transparency of Non-Privileged Records: To avoid litigation, associations should ensure that all non-exempt records (general financial records, minutes of open meetings) are made available within the statutory ten-business-day window.
For Dispute Resolution
  • Burden of Proof: Parties initiating a petition must recognize that the "preponderance of the evidence" standard requires more than just allegations; it requires concrete proof that a specific statute or community document was violated.
  • Administrative Finality: Decisions by an ALJ become final if no action is taken by the Director of the Department of Fire, Building and Life Safety within the statutory timeframe (in this case, approximately 30 days post-decision). Overturning such a decision requires a timely request for rehearing or a petition to the Superior Court.

Study Guide: Sellers v. Crossings at Willow Creek Property Owners Association

This study guide provides a comprehensive overview of the consolidated administrative cases John and Debborah Sellers vs. Crossings at Willow Creek Property Owners Association (Nos. 12F-H1212002-BFS and 12F-H1212009-BFS). It covers the legal standards for Arizona homeowners' associations, requirements for open meetings, and the limits of record disclosure.

I. Case Overview and Core Themes

Central Dispute

The cases involve disputes between homeowners (the Sellers) and their homeowners' association (Crossings at Willow Creek). The primary issues centered on whether the association’s Architectural Review Committee (ARC) was required to provide public notice for its meetings and whether the association was legally obligated to produce specific attorney-related financial records and communications.

Key Entities
  • Petitioners: John and Debborah Sellers, members of the Crossings at Willow Creek Property Owners Association.
  • Respondent: Crossings at Willow Creek Property Owners Association ("Crossings").
  • Adjudicating Body: The Office of Administrative Hearings, acting on behalf of the Department of Fire, Building and Life Safety.
  • Architectural Review Committee (ARC): A committee within the association responsible for reviewing and making determinations on property applications based on architectural guidelines.

II. Key Concepts and Legal Principles

1. Open Meeting Requirements (A.R.S. § 33-1804)

Under Arizona law, all meetings of a members' association and the board of directors must be open to all members. However, the law distinguishes between different types of committee meetings:

  • Regularly Scheduled Committee Meetings: These are required to be open to all members or their designated representatives.
  • On-Demand/Irregular Meetings: Meetings that occur "as necessary" or "on-demand" (based on submissions) do not carry the same statutory requirement for formal notice if they are not "regularly scheduled."
2. Record Examination and Disclosure (A.R.S. § 33-1805)

While associations are generally required to make financial and other records reasonably available for examination, there are five specific statutory exceptions where records may be withheld:

  1. Privileged communication between the association and its attorney.
  2. Pending litigation.
  3. Meeting minutes from executive sessions (closed meetings).
  4. Personal, health, or financial records of an individual member or employee.
  5. Records relating to job performance or specific complaints against employees.
3. Attorney-Client Privilege (A.R.S. § 12-2234)

In civil actions, an attorney cannot be examined regarding communications made by the client or advice given during professional employment without the client’s consent. This privilege extends to communications between an attorney and the agents or members of an entity (like an HOA) if the purpose is to provide or obtain legal advice.

4. Administrative Burden of Proof

In these proceedings, the burden of proof rests with the party asserting the claim (the Petitioners). The standard used is a preponderance of the evidence, meaning the finder of fact must be persuaded that the claim is "more likely true than not."

III. Short-Answer Practice Questions

  1. Who is authorized by statute to receive Petitions for Hearings from Arizona homeowners' association members?
  2. What were the two specific categories of records the Sellers claimed Crossings refused to provide?
  3. According to the testimony of Brenda Doziar, where do the ARC meetings typically take place?
  4. What determines when an ARC meeting is scheduled at Crossings?
  5. How much can an association charge per page for making copies of records requested by a member?
  6. How many business days does an association have to fulfill a request for the examination of records?
  7. Why did the Administrative Law Judge (ALJ) determine that Crossings did not violate notice requirements for ARC meetings?
  8. What happened when the Department of Fire, Building and Life Safety failed to take action on the ALJ’s decision by February 26, 2013?
  9. According to A.R.S. § 33-1804(A), what are the five circumstances under which a portion of an HOA meeting may be closed?
  10. Does the failure of a member to receive actual notice of a meeting affect the validity of action taken at that meeting, according to A.R.S. § 33-1804(B)?

IV. Essay Prompts for Deeper Exploration

  1. The Intersection of Transparency and Efficiency: Analyze the conflict between a homeowner's right to attend committee meetings and an HOA's right to hold meetings "as necessary." Based on the evidence in this case, evaluate whether the "on-demand" nature of the ARC meetings successfully circumvented or complied with the intent of A.R.S. § 33-1804.
  2. Statutory Protection of Legal Counsel: Discuss the importance of attorney-client privilege within the context of HOA management as outlined in A.R.S. § 12-2234 and A.R.S. § 33-1805. How does the law balance a member's right to view financial records (such as attorney invoices) with the association’s need for confidential legal strategy?
  3. The Role of the Administrative Law Judge (ALJ): Examine the ALJ’s findings regarding the "preponderance of the evidence." Why did the Petitioners fail to meet this burden in both consolidated cases, and what specific testimony or lack of evidence led to the dismissal of their petitions?

V. Glossary of Important Terms

  • A.R.S. (Arizona Revised Statutes): The codified laws of the state of Arizona.
  • ARC (Architectural Review Committee): A committee appointed to review property changes and ensure they comply with community architectural guidelines.
  • Attorney-Client Privilege: A legal principle that protects communications between an attorney and their client from being disclosed to third parties.
  • Bylaws: The internal rules and regulations that govern the administration of an association.
  • Community Documents: The collective term for an association’s declaration, bylaws, and other governing papers.
  • Executive Session: A portion of a meeting that is closed to the general membership to discuss sensitive matters like legal advice or personnel issues.
  • Preponderance of the Evidence: A legal standard of proof where a claim is proven if it is shown to be more probable than not.
  • Prevailing Party: The party in a lawsuit that wins on the main issues and is often entitled to specific relief or the dismissal of the opponent's claims.
  • Statutory Agent: An individual or entity designated to receive legal service of process and official documents on behalf of a corporation or association.
  • Subpoena: A legal document ordering a person to attend a court proceeding or produce specific documents.

HOA Transparency vs. Legal Reality: Lessons from the Sellers Case

1. Introduction: The Conflict at Willow Creek

For many homeowners, the relationship with their Property Owners Association (POA) is a delicate equilibrium between individual property rights and the necessity of community governance. Tensions frequently escalate when residents perceive themselves as being excluded from the decision-making process or find their access to association records blocked by administrative gatekeeping.

This friction was the catalyst for a significant administrative hearing: John and Debborah Sellers vs. Crossings at Willow Creek Property Owners Association. The Petitioners, John and Debborah Sellers, filed two separate petitions against the Association, alleging a lack of transparency in committee meetings and the improper withholding of financial and legal records. Through an analysis of these proceedings, we can examine how Arizona law navigates the boundary between a member's right to know and an association's right to functional, private governance.

2. The "Open Meeting" Debate: When is Notice Required?

The threshold question in the first matter (No. 12F-H1212002-BFS) was whether the Architectural Review Committee (ARC) had violated state law by failing to provide public notice of its meetings. The Petitioners contended that the ARC conducted association business "behind closed doors," circumventing the open meeting requirements established by statute.

The defense centered on the distinction between "regularly scheduled" and "as needed" meetings. Testimony from Brenda Doziar, a Board and ARC member, and Robert Balzano, the Association’s former manager and Statutory Agent, revealed a highly informal process. The ARC did not follow a fixed calendar; rather, meetings were triggered solely by the volume of architectural submissions. These sessions often took place at a committee member’s private residence, a detail that—while contributing to homeowner suspicion—underscored the irregular nature of the gatherings.

Arizona law is specific regarding which committee meetings must be open to the membership:

A.R.S. § 33-1804(A): "Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members' association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association…"

The Administrative Law Judge (ALJ) concluded that because the ARC met only "on demand" to review specific plans with the Association’s architect, the meetings did not constitute "regularly scheduled" sessions. Consequently, the Association was under no statutory or contractual obligation to post public notices for these irregular meetings.

3. The Battle for Records: Transparency vs. Privilege

The gravamen of the second petition (No. 12F-H1212009-BFS) was the Association’s refusal to produce attorney invoices and communications with third parties. This was not a mere fishing expedition; the Sellers were specifically concerned about a Declaratory Action involving the City of Prescott. In that litigation, the City was the plaintiff and all HOA members were named as defendants. The Sellers sought the records to ensure the Association was not "tipping its hand" during negotiations or compromising the members' positions.

The Association, supported by testimony from interim City Attorney G. Eugene Neil, argued that the requested documents were protected from disclosure. Under A.R.S. § 33-1805(B), an HOA is legally permitted to withhold records that relate to:

  • Privileged communications between an attorney for the association and the association.
  • Pending litigation.
  • Meeting minutes or records of a board session that is not required to be open (executive sessions).
  • Personal, health, or financial records of an individual member, employee of the association, or employee of a contractor.
  • Records relating to job performance, compensation, health records, or specific complaints regarding an individual employee of the association or a contractor.

The ALJ found that the Association’s refusal was properly grounded in Categories 1 and 2: privileged communications and pending litigation. Because the invoices and third-party correspondence related to active legal matters, they were exempt from member inspection.

4. The Verdict: Why the Petitions Were Dismissed

The ALJ ultimately dismissed both petitions, ruling that the Crossings at Willow Creek Property Owners Association was not required to take any corrective action. A primary factor in this outcome was the "Preponderance of the Evidence" standard.

In administrative proceedings, the burden of proof rests with the party asserting the claim. According to A.A.C. R2-19-119, the Petitioners were required to prove that their allegations were "more likely true than not." As established in In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994), this requires persuading the finder of fact of the proposition's probability.

The ALJ determined the Sellers were not the "prevailing party," as they failed to prove a violation of either the Arizona Revised Statutes or the community’s governing documents. The decision was subsequently certified as final, affirming the Association's right to maintain its current meeting and record-keeping protocols.

5. Key Takeaways for Homeowners and Boards

The Sellers case serves as a vital case study for community leaders and residents alike. We can distill the following insights:

  1. Understand the "Regularly Scheduled" Clause: Statutory notice requirements are not universal. If a committee’s meeting frequency is dictated by workload (such as architecture submissions) rather than a set calendar, the legal obligation for public notice may not apply.
  2. The Limits of Record Requests: Transparency is a fundamental principle, but attorney-client privilege is a robust and necessary protection. When an Association is involved in active litigation, it has a duty to protect strategic communications from disclosure, even to its own members.
  3. The Burden of Proof: Asserting a grievance is not the same as proving a violation. Petitioners must provide a preponderance of evidence to prevail in an administrative hearing. Without specific proof of a statutory breach, the ALJ will defer to the Association’s established practices.
  4. Review Your Bylaws: Internal documents are the first line of defense. In this case, Article XI Section 3 of the Crossings’ Bylaws explicitly stated the ARC should "meet from time to time as necessary," a phrase that provided the legal flexibility needed to withstand the Petitioners' challenge.
6. Compelling Conclusion

The dispute at Willow Creek underscores the necessity of a deep familiarity with A.R.S. §§ 33-1804 and 33-1805. These statutes are the bedrock of HOA governance in Arizona, designed to balance the membership's right to information with the Association's need for executive privacy and legal protection. While the impulse for total transparency is a hallmark of an engaged membership, the law recognizes that effective governance requires boundaries. For Boards, the lesson is clear: ensure your Bylaws are precisely worded. For homeowners, the takeaway is equally sharp: a legal challenge requires more than a sense of unfairness—it requires a preponderance of proof.

Case Participants

Petitioner Side

  • John Sellers (petitioner)
    Appeared at hearing
  • Debborah Sellers (petitioner)
    Testified regarding ARC service

Respondent Side

  • Joshua M. Bolen (respondent attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC
  • Brenda Doziar (witness)
    Crossings at Willow Creek Property Owners Association
    Board member and ARC member
  • Robert Balzano (witness)
    Crossings at Willow Creek Property Owners Association
    Former statutory agent and manager
  • Kenneth Burnett (witness)
    Crossings at Willow Creek Property Owners Association
    Board member

Neutral Parties

  • M. Douglas (ALJ)
    Office of Administrative Hearings
  • G. Eugene Neil (witness)
    City of Prescott
    Interim City Attorney; provided public records
  • Larry Harding (witness)
    Crossings at Willow Creek Property Owners Association
    Commercial insurance agent for Respondent
  • Gene Palma (Director)
    Department of Fire Building and Life Safety
    Named as Director for transmittal
  • Cliff J. Vanell (Director)
    Office of Administrative Hearings
    Certified the decision
  • Joni Cage (agency staff)
    Department of Fire Building and Life Safety
    Copy recipient

James, Lon vs. Corte Bella Country Club Association

Posted on by

Case Summary

Case ID 08F-H089001-BFS
Agency DFBLS
Tribunal OAH
Decision Date 2008-09-25
Administrative Law Judge Lewis D. Kowal
Outcome The Petition was dismissed. The claim regarding the Bylaws was precluded by mandatory ADR provisions in the CC&Rs. The claim regarding the open meeting statute was dismissed because an in camera review proved the closed meeting fell within valid statutory exceptions (personnel matters).
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Lon James Counsel —
Respondent Corte Bella Country Club Association Counsel Angela Potts

Alleged Violations

Section 3.14
A.R.S. § 33-1804

Outcome Summary

The Petition was dismissed. The claim regarding the Bylaws was precluded by mandatory ADR provisions in the CC&Rs. The claim regarding the open meeting statute was dismissed because an in camera review proved the closed meeting fell within valid statutory exceptions (personnel matters).

Why this result: Mandatory ADR clause in governing documents and statutory exceptions for closed meetings applied.

Key Issues & Findings

Allegation of Violation of Sec 3.14 of Bylaws

Petitioner alleged that the Board held a closed meeting to discuss and vote on a proposal to realign the Board, refusing homeowner permission to attend.

Orders: Dismissed based on requirement of Article XVII of CC&Rs that requires such disputes be resolved by alternative dispute resolution.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • Bylaws Section 3.14
  • CC&Rs Article XVII

Violation of A.R.S. § 33-1804 (open meeting)

Petitioner alleged the May 5, 2008 closed meeting violated open meeting statutes.

Orders: Dismissed; the meeting fell within statutory exceptions.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1804

Related election workflow tool

Many HOA election disputes start with preventable workflow problems: unclear ballot language, separate-vote issues, quorum tracking, paper/online reconciliation, proxy handling, or incomplete records. HOABallot is a separate platform built to document the voting workflow from notice through certification.

Preview HOABallot election workflows

Video Overview

Audio Overview

Decision Documents

08F-H089001-BFS Decision – 199085.pdf

Uploaded 2026-04-24T10:34:54 (96.0 KB)

08F-H089001-BFS Decision – 199085.pdf

Uploaded 2026-01-25T15:23:36 (96.0 KB)

Administrative Law Judge Decision: Lon James v. Corte Bella Country Club Association

Executive Summary

This briefing document summarizes the administrative law decision (Case No. 08F-H089001-BFS) regarding a dispute between Lon James (Petitioner) and the Corte Bella Country Club Association (Respondent). The Petitioner alleged that the Respondent violated community bylaws and Arizona state law by holding a closed Board meeting on May 5, 2008.

The Administrative Law Judge (ALJ), Lewis D. Kowal, dismissed the petition in its entirety. The ruling was based on two primary factors:

1. Jurisdictional Preclusion: Claims regarding Bylaw violations were subject to mandatory Alternative Dispute Resolution (ADR) as per the community’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs).

2. Statutory Compliance: An in camera review of evidence determined that the closed meeting held by the Board fell within the legal exceptions provided by A.R.S. § 33-1804, specifically regarding personnel matters and confidential information.

Case Overview and Procedural History

The Petitioner filed a petition with the Arizona Department of Fire, Building and Life Safety under A.R.S. 41-2198.01 (B). The Petitioner alleged that the Respondent held a closed meeting to vote on board realignment, refusing homeowner participation in violation of Community Bylaws (Section 3.14) and A.R.S. § 33-1804.

Case Detail

Information

Case Number

08F-H089001-BFS

Petitioner

Lon James

Respondent

Corte Bella Country Club Association

Hearing Date

September 16, 2008

Presiding Judge

Lewis D. Kowal

Final Action

Petition Dismissed

Analysis of Legal Issues and Rulings

1. Alleged Violation of Section 3.14 of Community Bylaws

The Petitioner argued that the Respondent failed to adhere to the open meeting requirements established in the community’s own bylaws.

• Respondent’s Defense: The Respondent moved for dismissal of this claim, citing Article XVII of the CC&Rs, which mandates that disputes relating to the interpretation or enforcement of governing documents must be resolved via ADR.

• Petitioner’s Counter-Argument: The Petitioner contended that ADR provisions only applied to the design or construction of property improvements.

• Judicial Conclusion: The ALJ found that the ADR provisions should be read in the “disjunctive.” The provisions apply not only to construction improvements but also to claims arising from the “interpretation, application or enforcement” of the Respondent’s governing documents. Consequently, the claim was precluded from the administrative hearing.

2. Alleged Violation of A.R.S. § 33-1804 (Open Meeting Law)

The core of the dispute involved a meeting held on May 5, 2008, from which homeowners were excluded.

• Legal Exceptions: Under A.R.S. § 33-1804(A), boards may hold closed meetings for specific reasons. The Respondent cited the following exceptions:

◦ A.R.S. § 33-1804(A)(2): Pending or contemplated litigation.

◦ A.R.S. § 33-1804(A)(3): Personal, health, or financial information about an individual member, employee, or contractor.

◦ A.R.S. § 33-1804(A)(4): Matters relating to job performance, compensation, or specific complaints against an individual employee or contractor.

3. Evidentiary Review and Methodology

To determine if the closed meeting was legal without disclosing confidential information to the Petitioner, the ALJ utilized an in camera review process.

• Review of Documents: The Respondent submitted eleven documents under seal. The Respondent argued that presenting this evidence in open court would force the disclosure of information they were legally required to keep confidential.

• Judicial Precedent: The ALJ cited Griffis v. Pinal County and Phoenix Newspapers, Inc. (2006) as guidance for performing an in camera review to balance the principles of public hearings against the necessity of preserving confidentiality.

• Findings: Following the review, the ALJ informed the parties that the meeting was “properly held as a closed meeting” because the purpose fell within at least one of the statutory exceptions.

• Petitioner’s Offer of Proof: The Petitioner was allowed to make an “Offer of Proof” regarding the evidence he would have presented. The ALJ noted that some of the information in the Petitioner’s own offer actually supported the conclusion that the meeting involved a personnel matter, which is a permissible reason for a closed session.

Final Determinations and Financial Rulings

Dismissal of the Petition

The ALJ issued a ruling from the bench dismissing the petition. The Petitioner was not considered the prevailing party and was therefore denied reimbursement for his filing fee.

Request for Attorneys’ Fees

In its response to the petition, the Respondent requested an award for attorneys’ fees and costs under A.R.S. § 12-341.01. The ALJ denied this request based on the following:

• Definition of “Action”: Citing Semple v. Tri-City Drywall, Inc., the ALJ noted that an administrative proceeding is not considered an “action” in the context of A.R.S. § 12-341.01.

• Governing Documents: The Respondent failed to cite any specific provision within its own governing documents that would provide for an award of fees in such a proceeding.

Final Order

The petition was dismissed. Pursuant to A.R.S. § 41-2198.04(A), this order constitutes the final administrative decision. While it is not subject to a request for rehearing, it may be appealed to the Superior Court within thirty-five days of service.

Administrative Law Study Guide: Lon James v. Corte Bella Country Club Association

This study guide provides a comprehensive review of the administrative law proceedings between Petitioner Lon James and Respondent Corte Bella Country Club Association (No. 08F-H089001-BFS). It examines the legal interpretations of association bylaws, open meeting statutes, and the procedural mechanisms used by an Administrative Law Judge (ALJ) to resolve disputes within a country club association.

Section 1: Short-Answer Quiz

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

1. What primary allegation did the Petitioner make regarding the board meeting held on May 5, 2008?

2. On what grounds did the Administrative Law Judge preclude the claim regarding the violation of Section 3.14 of the Bylaws?

3. How did the Respondent’s interpretation of Article XVII of the CC&Rs differ from the Petitioner’s interpretation?

4. What was the Respondent’s justification for requesting an “in camera review” of specific documents?

5. Which Arizona Supreme Court case did the ALJ use as guidance for conducting an in camera review, and what was that case about?

6. According to A.R.S. § 33-1804(A), what are the three specific exceptions cited by the Respondent for holding a closed meeting?

7. What is an “Offer of Proof,” and how did the Petitioner’s offer impact the ALJ’s decision?

8. Why did the ALJ determine that the Respondent was not entitled to an award for attorney’s fees?

9. What is the finality status of the Order issued by ALJ Lewis D. Kowal, and is it subject to a rehearing?

10. What are the specific requirements and timelines for a party wishing to appeal this final administrative decision?

——————————————————————————–

Section 2: Answer Key

1. The Petitioner alleged that the Respondent held a closed Board Meeting to discuss and vote on a proposal to realign the Board. He argued that refusing homeowners permission to attend or participate violated Community Bylaws 3.14 and A.R.S. § 33-1804.

2. The ALJ precluded this claim because Article XVII of the Association’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs) requires such disputes to be resolved by alternative dispute resolution (ADR). This mandatory provision barred the claim from being adjudicated in the current administrative hearing.

3. The Petitioner argued that the ADR provisions in Article XVII only related to the design or construction of property improvements. The Respondent argued the provisions should be read disjunctively, applying to any claims relating to the interpretation, application, or enforcement of the governing documents.

4. The Respondent asserted that the evidence justifying the closed meeting was inextricably intertwined with confidential information that could not be disclosed publicly. They requested an in camera review so the ALJ could verify the meeting’s legality without exposing protected data.

5. The ALJ cited Griffis v. Pinal County and Phoenix Newspapers, Inc. (2006). In that case, the Supreme Court remanded the matter for an in camera review to determine if personal emails on a government system were considered public records.

6. The exceptions included: (2) pending or contemplated litigation; (3) personal, health, or financial information about an individual member, employee, or contractor; and (4) matters relating to job performance, compensation, or specific complaints against an individual employee.

7. An Offer of Proof is a summary of testimonial and documentary evidence a party would have presented; in this case, the Petitioner’s offer actually supported the conclusion that the meeting fell under a personnel matter exception. It did not change the ALJ’s finding that the closed meeting was held in accordance with the law.

8. The ALJ ruled that an administrative proceeding is not an “action” under A.R.S. § 12-341.01, which is necessary for attorney’s fees to be awardable. Furthermore, the Respondent failed to cite any provision in its own governing documents that provided for such an award in this type of proceeding.

9. The Order is the final administrative decision and is not subject to a request for rehearing under A.R.S. § 41-2198.04(A). It is considered enforceable through contempt of court proceedings.

10. A party may appeal by filing a complaint within thirty-five days of the date the decision was served. Service is considered complete upon personal delivery or five days after the final decision is mailed to the party’s last known address.

——————————————————————————–

Section 3: Essay Questions

Instructions: Use the case details to provide in-depth analysis for the following prompts.

1. Mandatory Alternative Dispute Resolution (ADR): Analyze the significance of the ALJ’s decision to dismiss the Bylaw violation claim based on the CC&Rs. Discuss how the interpretation of “disjunctive” language in governing documents can impact a member’s right to an administrative hearing versus mandatory mediation or arbitration.

2. Transparency vs. Confidentiality: Evaluate the tension between the “open meeting” requirements of A.R.S. § 33-1804 and the exceptions allowed for board meetings. Discuss whether the in camera review process is an effective compromise for protecting individual privacy while ensuring association accountability.

3. The Role of Judicial Precedent in Administrative Law: Examine how the ALJ utilized Griffis v. Pinal County to justify procedural steps in this case. Why is it important for administrative law judges to look to Supreme Court decisions regarding public records when handling private association disputes?

4. Statutory Interpretation of “Action”: Contrast the legal definitions of an “administrative proceeding” and an “action” as they relate to the recovery of attorney’s fees under A.R.S. § 12-341.01. What are the implications for litigants who prevail in one forum versus the other?

5. Burden of Proof and the “Offer of Proof”: Discuss the procedural purpose of an Offer of Proof in a hearing. Analyze the irony in this case where the Petitioner’s own offer of proof reinforced the Respondent’s legal standing regarding the “personnel matter” exception.

——————————————————————————–

Section 4: Glossary of Key Terms

Definition

A.R.S. § 33-1804

The Arizona Revised Statute governing the requirement for open meetings within certain associations, including specific legal exceptions.

Alternative Dispute Resolution (ADR)

A process, such as mediation or arbitration, required by governing documents to resolve disputes outside of traditional court or administrative hearings.

Declaration of Covenants, Conditions, and Restrictions; the governing documents that outline the rules and regulations of a planned community or association.

In Camera Review

A private review of sensitive or confidential documents by a judge in their chambers (or “in chambers”) to determine their relevance or admissibility without disclosing them to the opposing party or the public.

Offer of Proof

A presentation made to the judge for the record when a party is not permitted to introduce certain evidence or testimony, describing what that evidence would have shown.

Petitioner

The party who initiates a petition or legal claim in an administrative hearing (in this case, Lon James).

Respondent

The party against whom a petition or legal claim is filed (in this case, Corte Bella Country Club Association).

Under Seal

Records or documents that are kept confidential and are not available for public inspection, often used during an in camera review.

Prevailing Party

The party in a legal proceeding that wins the case; here, the ALJ determined the Petitioner was not the prevailing party and thus not entitled to fee reimbursement.

Disjunctive

A grammatical or legal term indicating that items in a list (often separated by “or”) should be considered separately or as alternatives rather than collectively.

Behind Closed Doors: What a Recent Arizona HOA Ruling Reveals About Your Rights as a Homeowner

Most homeowners buy into a community under the comforting illusion that their dues purchase a front-row seat to the governance of their neighborhood. There is a common expectation that transparency is the default setting and that “open meeting” laws provide an unbreakable shield against secret governance.

In the arena of HOA law, however, transparency is often the first casualty of a well-drafted executive session. The case of Lon James vs. Corte Bella Country Club Association serves as a sobering cautionary tale of a “legal lockout.” When James challenged a closed-door meeting held to “realign the board,” he discovered that the legal framework governing HOAs often prioritizes board confidentiality over homeowner participation, leaving residents on the outside looking in.

This ruling highlights four critical takeaways that reveal just how tilted the playing field can be when a homeowner dares to challenge the association’s inner workings.

Takeaway 1: The “Open Meeting” Law Has Serious Loopholes

While A.R.S. § 33-1804 generally mandates that board meetings remain open to all members, the law provides broad exceptions that act as a legal shield for boards. In the Corte Bella case, the board met privately to discuss a proposal to “realign the board.” To a homeowner, a structural change in leadership sounds like a matter of public interest. To the law, however, it is frequently a protected personnel matter.

The ultimate irony in this case? The Petitioner’s own “Offer of Proof”—the evidence he intended to use to win—actually backfired. The Administrative Law Judge (ALJ) noted that James’s own testimony unintentionally supported the HOA’s claim that the meeting was legally closed as a personnel matter. It is a high-value lesson for any litigant: sometimes your own evidence proves the board’s right to exclude you.

Takeaway 2: The Judge Can See Evidence You Can’t (The In Camera Review)

One of the most significant tactical disadvantages a homeowner faces is the “In Camera Review.” To determine if the board’s secrecy was justified, the judge reviewed 11 sealed documents privately. James was never allowed to see the very evidence being used to dismiss his case.

This “secret” review is not an automatic right for associations; it is a hard-fought legal maneuver. In fact, the ALJ initially refused the HOA’s request for the review. It was only after a persuasive oral argument that the judge pivoted, balancing public hearing principles against the board’s need for confidentiality. Using the precedent of Griffis v. Pinal County, the court confirmed that a judge can review documents behind a “black box” to determine if they fall under public record exceptions. For the homeowner, this means fighting an opponent when the most critical evidence is invisible to you.

Takeaway 3: Your Right to Sue May Be Precluded by Your Own CC&Rs

Before you ever get to argue the merits of your case, you must survive the trapdoors buried in your own governing documents. In this case, James’s claim regarding a violation of Section 3.14 of the Bylaws was dismissed before it even reached the hearing stage.

The HOA successfully argued that Article XVII of the CC&Rs mandated Alternative Dispute Resolution (ADR). The judge applied a “disjunctive” reading of the law—meaning that because the document used the word “or,” the ADR requirement wasn’t restricted to hammers-and-nails construction issues. Instead, it applied to any claim relating to the interpretation or application of the governing documents. This is a common “ADR trap”: if your CC&Rs are written this way, your path to a standard administrative hearing is effectively blocked.

Action Item: Review your CC&Rs specifically for “disjunctive” language in your ADR or arbitration clauses. If the clause applies to construction or interpretation, you may be signing away your right to a public day in court.

Takeaway 4: Winning Doesn’t Mean Your Legal Bills Are Paid

In the administrative arena, victory often feels like a hollow financial win. In the Corte Bella ruling, even though the HOA successfully defended its actions and saw the petition dismissed, the judge denied their request for attorney’s fees.

The reasoning is a technicality that every homeowner should memorize: an administrative proceeding is not considered an “action” under Arizona law. Therefore, the statutes that typically allow a winner to recover fees in a contract-related lawsuit simply do not apply. This creates an administrative dead-end where both sides typically bear their own costs regardless of the outcome, making these battles a “lose-lose” for the bank accounts of both the individual and the community at large.

Conclusion: The Price of Participation

The Corte Bella ruling reinforces the substantial power HOA boards wield. By utilizing statutory exceptions, securing private judicial reviews, and leaning on mandatory ADR clauses, boards can effectively shield their most critical decisions from member oversight.

This leaves us with a difficult reality regarding the price of participation. If the most significant board decisions—those involving board realignment, litigation, and personnel—are legally permitted to occur behind closed doors, how can homeowners truly ensure accountability? Understanding these legal boundaries isn’t just about winning a case; it’s about recognizing the steep climb required to see what’s happening behind the curtain.

Case Participants

Petitioner Side

  • Lon James (Petitioner)
    Appeared on his own behalf

Respondent Side

  • Angela Potts (Respondent Attorney)
    Ekmark & Ekmart, LLC
    Esq.

Neutral Parties

  • Lewis D. Kowal (Administrative Law Judge)
    Office of Administrative Hearings
  • Robert Barger (Director)
    Department of Fire, Building and Life Safety
    Listed on mailing/service list
  • Debra Blake (Agency Staff)
    Department of Fire, Building and Life Safety
    Listed on mailing/service list

Monahan, John F. and Patricia E. -v- Sycamore Hills Homeowners Association, Inc.

Posted on by

Case Summary

Case ID 08F-H088008-BFS
Agency DFBLS
Tribunal OAH
Decision Date 2008-05-22
Administrative Law Judge Michael G. Wales
Outcome The Petition was dismissed in its entirety. Claims regarding harassment, barking dogs, and committees were found to be moot, outside jurisdiction, or lacking standing. The Open Meeting Law claim was dismissed because the Board was entitled to meet in executive session to discuss threatened litigation.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John F. and Patricia E. Monahan Counsel —
Respondent Sycamore Hills Homeowners Association, Inc. Counsel Carolyn Goldschmidt

Alleged Violations

Design Guidelines Section II.I, II.M, II.N, II.B.2
CC&Rs Article IX, Section 5; Article III, Section 8a
CC&Rs Article IX, Section 6, Section 26; Design Guidelines II.C
Bylaws Articles V and IX
A.R.S. § 33-1804

Outcome Summary

The Petition was dismissed in its entirety. Claims regarding harassment, barking dogs, and committees were found to be moot, outside jurisdiction, or lacking standing. The Open Meeting Law claim was dismissed because the Board was entitled to meet in executive session to discuss threatened litigation.

Why this result: Petitioners' claims were either moot (compliance achieved/events passed), outside the tribunal's jurisdiction (harassment), lacked standing (enforcement against others), or unfounded (executive session was legal).

Key Issues & Findings

Count 1: Harassment regarding pool pump and utility trailer

Petitioners alleged the HOA harassed them by requiring screening of pool equipment and moving a trailer while not enforcing these rules against others.

Orders: Dismissed as moot because Petitioners complied prior to filing, and dismissed for lack of jurisdiction regarding harassment/selective enforcement claims.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • 5
  • 26
  • 33
  • 34

Count 2: Barking Dogs

Petitioners alleged the HOA failed to enforce animal noise restrictions against a specific neighbor.

Orders: Dismissed as moot.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • 5
  • 35
  • 36

Count 3: RV Parking

Petitioners alleged the HOA was not imposing sufficient fines or action against two lot owners keeping RVs on their lots.

Orders: Dismissed for lack of standing.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • 6
  • 37

Count 4: Nominating and Architectural Committees

Petitioners alleged the Board failed to appoint required committees prior to the annual meeting.

Orders: Dismissed as moot.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • 6
  • 39
  • 40

Count 5: Open Meeting Law

Petitioners alleged the Board violated open meeting laws by discussing and voting on construction requests in a closed session.

Orders: Dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • 7
  • 44
  • 45

Related election workflow tool

Many HOA election disputes start with preventable workflow problems: unclear ballot language, separate-vote issues, quorum tracking, paper/online reconciliation, proxy handling, or incomplete records. HOABallot is a separate platform built to document the voting workflow from notice through certification.

Preview HOABallot election workflows

Video Overview

Audio Overview

Decision Documents

08F-H088008-BFS Decision – 191406.pdf

Uploaded 2026-04-24T10:33:47 (153.4 KB)

08F-H088008-BFS Decision – 191406.pdf

Uploaded 2026-01-25T15:22:40 (153.4 KB)

Administrative Law Judge Decision: Monahan v. Sycamore Hills Homeowners Association, Inc.

Executive Summary

This briefing document analyzes the administrative law decision in Case No. 08F-H088008-BFS, involving John and Patricia Monahan (Petitioners) and the Sycamore Hills Homeowners Association, Inc. (Respondent). The Petitioners alleged multiple violations of the Association’s governing documents and Arizona state statutes, specifically concerning harassment, nuisance control, parking enforcement, committee formation, and open meeting laws.

Administrative Law Judge (ALJ) Michael G. Wales dismissed the petition in its entirety. The ruling was primarily based on three factors:

1. Lack of Jurisdiction and Standing: The tribunal lacks authority to adjudicate claims of “harassment” or “selective enforcement” and cannot hear disputes between neighbors where the Association is not a primary party.

2. Mootness: Several issues were resolved or corrected prior to the hearing, leaving no active controversy for the court to remedy.

3. Legal Justification for Executive Sessions: The Association demonstrated that its closed-door meetings were legally permissible under Arizona law to discuss pending or contemplated litigation.

——————————————————————————–

Detailed Analysis of Claims and Evidence

Count 1: Harassment and Selective Enforcement

The Petitioners alleged that the Association targeted them regarding pool pump screening and a utility trailer while failing to enforce the same rules against other residents.

• Evidence and Testimony: The Petitioners received notices to screen pool equipment and move a utility trailer. They complied with these requests. However, Petitioner John Monahan testified that other homes continued to have exposed trash receptacles and mechanical equipment.

• Respondent Defense: Property manager Sandy Sandoval testified to conducting regular monthly inspections. Board President Paul Swan noted that some minor issues, like trash can placement, were left to the “honor system” as they were deemed trivial.

• Legal Conclusion: The ALJ dismissed this count on two grounds:

◦ Jurisdiction: The Office of Administrative Hearings (OAH) is limited to Title 33, Chapter 16 of the Arizona Revised Statutes. It does not have the authority to hear claims of harassment or selective enforcement; such matters belong in Superior Court.

◦ Mootness: Because the Petitioners complied with the Association’s requests before filing the complaint, no active dispute remained.

Count 2: Barking Dogs (Nuisance Control)

Petitioners alleged the Association failed to take appropriate action against the owner of Lot 37 regarding constant barking dogs, in violation of the CC&Rs.

• Evidence and Testimony: Patricia Monahan testified that the Board failed to investigate her complaints. Board President Paul Swan testified that he personally monitored the location on six occasions and did not hear barking. A warning letter was drafted but withheld because the meeting where it was authorized had not been properly noticed.

• Resolution: Mrs. Monahan attended a Pima County Animal Noise Control hearing where the owners of Lot 37 were fined. She testified the barking had since stopped.

• Legal Conclusion: The issue was dismissed as moot. The nuisance had ceased, and the Petitioners found an alternative forum (Pima County) for resolution.

Count 3: RV Parking Enforcement

Petitioners argued that the Association was not imposing sufficient fines ($50 per month) against two lot owners who kept Recreational Vehicles (RVs) on their properties.

• Evidence and Testimony: A 2007 resolution prohibited RV parking for more than 48 hours. The Board had begun fining two owners $50 monthly. John Monahan argued this amount was lower than local storage fees, rendering the fine ineffective.

• Legal Conclusion: The ALJ ruled that Petitioners lacked standing. Under A.R.S. §41-2198.01(B), the department does not have jurisdiction over disputes between owners to which the Association is not a party. A claim regarding “lax enforcement” against a third party is legally considered a dispute between owners, not a direct dispute with the Association that the OAH can adjudicate.

Count 4: Committee Formation

Petitioners claimed the Association violated its Bylaws by failing to appoint a Nominating Committee and an Architectural Control Committee (ACC).

• Evidence and Testimony:

◦ ACC: The Board temporarily acted as the ACC after previous members resigned due to “upheaval” and “difficult personalities” in the community. By the time of the hearing, a new ACC had been appointed.

◦ Nominating Committee: The property manager testified that she sought volunteers via mail and email, but no one volunteered due to the toxic environment created by certain residents.

• Legal Conclusion: The ACC claim was dismissed as moot because a committee was currently in place. The Nominating Committee claim was dismissed because the election had already occurred, and evidence showed the Association made a good-faith effort to form the committee despite a lack of volunteers.

Count 5: Violation of Open Meeting Law

Petitioners alleged the Board held a private meeting to override an ACC decision regarding detached garages on Lots 36 and 56.

• Legal Standard (A.R.S. §33-1804): Board meetings must be open to members, but they may be closed (executive session) for specific reasons, including legal advice from an attorney or matters regarding pending/contemplated litigation.

• Evidence and Testimony: Paul Swan testified that the Board met in executive session because they had received letters from an attorney threatening litigation if the garage requests were not approved. He further testified that the final decision to approve was made by the ACC, not the Board in executive session.

• Legal Conclusion: The ALJ found the executive session was legal under A.R.S. §33-1804 as it pertained to contemplated litigation. No violation of the Open Meeting Law occurred.

——————————————————————————–

Final Legal Findings and Orders

Jurisdictional Limitations

The decision emphasizes the narrow scope of the Office of Administrative Hearings. The tribunal is only authorized to ensure compliance with specific statutes and the planned community’s documents as they apply to the Petitioner. It cannot:

• Rule on the reasonableness of an Association’s decisions regarding other owners.

• Share concurrent jurisdiction with the Superior Court on matters of harassment or arbitrary enforcement.

Attorney’s Fees and Filing Costs

• Attorney’s Fees: Although the Association prevailed, the ALJ denied their request for attorney’s fees. Under Arizona law (Semple v. Tri-City Drywall, Inc.), an administrative proceeding is not considered an “action” that triggers fee-shifting statutes like A.R.S. §12-341.01.

• Filing Fees: As the Petitioners were not the prevailing party, they were not entitled to reimbursement for filing fees.

Final Order

The Administrative Law Judge ordered the dismissal of the petition in its entirety and denied the Respondent’s request for attorney’s fees. This order constitutes the final administrative decision.

Study Guide: Monahan v. Sycamore Hills Homeowners Association, Inc.

This study guide provides a comprehensive review of the administrative law case John F. and Patricia E. Monahan v. Sycamore Hills Homeowners Association, Inc. (No. 08F-H088008-BFS). It examines the legal disputes regarding planned community governance, jurisdictional boundaries of administrative hearings, and the application of Arizona Revised Statutes.

——————————————————————————–

Part I: Quiz

Instructions: Answer the following questions in 2–3 sentences based on the source context.

1. What were the specific allegations made by the Petitioners in Count 1 of their petition?

2. Why did the Administrative Law Judge (ALJ) conclude that the tribunal lacked the authority to hear claims of “selective enforcement”?

3. According to the Findings of Fact, how did the Association address the Petitioners’ violation regarding their utility trailer?

4. What was the Petitioners’ primary grievance in Count 3 regarding the Association’s handling of RV parking violations?

5. How did the Board of Directors justify its decision to temporarily act as the Architectural Control Committee (ACC)?

6. What was the outcome of the Pima County Animal Noise Control hearing mentioned in Count 2?

7. What evidence did the Association provide to explain why a nominating committee had not been formed prior to the 2007 annual meeting?

8. Under A.R.S. § 33-1804, what is the “Open Meeting Law” requirement for board deliberations?

9. Why did the ALJ determine that the October 30, 2007, executive session did not violate the Open Meeting Law?

10. On what legal basis did the ALJ deny the Respondent Association’s request for attorney’s fees?

——————————————————————————–

Part II: Answer Key

1. Count 1 Allegations: The Petitioners alleged harassment and selective enforcement, specifically that the Association required them to enclose their pool pump and move a utility trailer while failing to hold other lot owners to the same Design Guidelines. They argued the Association violated Section II.I, II.M/N, and II.B.2 of the Community’s governing documents.

2. Jurisdiction over Selective Enforcement: The ALJ ruled that the Office of Administrative Hearings is limited by A.R.S. § 41-2198 to adjudicating specific violations of Title 33 and community documents. Claims of selective enforcement or “disputes between owners” where the association is not a direct party are outside this jurisdiction and are reserved for the Superior Court.

3. Resolution of Utility Trailer Issue: The Petitioners received a written notice on August 3, 2007, to store their trailer in a garage or behind the home so it was not visible from the street. They complied with the request and faxed proof of compliance to the Association by August 12, 2007, which later rendered the claim moot.

4. RV Parking Fines: The Petitioners argued that the $50 monthly fine imposed on owners of lots 35 and 60 was insufficient to change behavior. They claimed the fine was lower than external RV storage fees, effectively allowing owners to ignore the Association’s 2007 resolution against long-term RV parking.

5. Board Acting as ACC: Board President Paul Swan testified that the Board was forced to step in as the ACC after all members except John Monahan resigned in September 2007. The ALJ found that no governing document prohibited the Board from temporarily fulfilling these duties until new members were appointed.

6. Animal Noise Control Outcome: Patricia Monahan attended a hearing on April 21, 2008, where Pima County Animal Noise Control fined the owners of Lot 37 and warned them of additional penalties for future violations. Following this hearing, she testified that the dogs had stopped barking.

7. Lack of Nominating Committee: The Property Manager testified that obtaining volunteers for committees was “difficult, if not impossible” due to “difficult personalities” creating upheaval within the community. The ALJ accepted that these challenges rendered the creation of a nominating committee implausible at that time.

8. Open Meeting Law Requirements: A.R.S. § 33-1804(A) mandates that all meetings of the association and board of directors must be open to all members or their designated representatives. Members must be allowed to attend and speak before the board takes formal action on an issue.

9. Legality of Executive Session: The ALJ found the closed session was legal because it was held to discuss “pending or contemplated litigation” after receiving threat letters from an attorney representing the owners of lots 36 and 56. Under A.R.S. § 33-1804(A)(1) and (2), legal advice and litigation strategy are valid reasons to close a meeting.

10. Denial of Attorney’s Fees: The ALJ cited Semple v. Tri-City Drywall, Inc., stating that an administrative proceeding is not considered an “action” under A.R.S. §§ 33-1807(H) or 12-341.01. Therefore, even though the Association prevailed, attorney’s fees could not be awarded in this forum.

——————————————————————————–

Part III: Essay Questions

1. The Limits of Administrative Jurisdiction: Analyze the distinction between the jurisdiction of the Office of Administrative Hearings and the Arizona Superior Court as outlined in the decision. Why is the distinction between a “dispute between owners” and a “dispute with the Association” critical for standing?

2. Mootness in Administrative Adjudication: Evaluate how the concept of “mootness” applied to the various counts in this case (specifically Counts 1, 2, and 4). How does voluntary compliance by either party affect the ALJ’s ability to provide a remedy?

3. Governance Challenges in Planned Communities: Using the testimony regarding the Nominating and Architectural Committees, discuss the practical difficulties an HOA faces when community conflict discourages volunteerism. How should the law balance strict adherence to bylaws with the reality of limited community participation?

4. Transparency vs. Confidentiality: Discuss the balance of the Open Meeting Law (A.R.S. § 33-1804). Under what circumstances does the need for a Board to seek legal counsel or discuss litigation outweigh the members’ right to observe deliberations?

5. The Preponderance of the Evidence: Explain the burden of proof required in this administrative hearing. How did the ALJ define “preponderance of the evidence,” and how did the Petitioners’ evidence fail to meet this standard in Count 5?

——————————————————————————–

Part IV: Glossary of Key Terms

• A.R.S. § 33-1804 (Open Meeting Law): An Arizona statute requiring that meetings of a homeowners association board be open to all members, with specific, narrow exceptions for closed “executive” sessions.

• A.R.S. § 41-2198: The statute granting the Office of Administrative Hearings the authority to adjudicate disputes regarding planned community documents and Title 33, Chapter 16 of the Arizona Revised Statutes.

• Architectural Control Committee (ACC): A committee appointed by the Association to oversee and approve or deny requests for exterior improvements or structures on lots within the community.

• CC&Rs (Covenants, Conditions, Restrictions, and Easements): The recorded legal documents that establish the rules and regulations for a planned community and are binding on all property owners.

• Executive Session: A portion of a board meeting that is closed to the general membership to discuss sensitive matters such as legal advice, litigation, or personal member information.

• Jurisdiction: The legal authority of a court or administrative tribunal to hear and decide a specific type of case or dispute.

• Moot: A legal status where a dispute is no longer active or relevant because the issues have been resolved or the circumstances have changed, leaving no remedy for the court to provide.

• Planned Community: A real estate development where individual lot owners are mandatory members of an association and are subject to specific governing documents and dues.

• Preponderance of the Evidence: The standard of proof in civil and administrative cases, meaning the evidence shows that a claim is “more probably true than not.”

• Standing: The legal right of a party to bring a claim, requiring that the party is directly affected by the issue and that the tribunal has the authority to hear that specific person’s grievance.

Study Guide: Monahan v. Sycamore Hills Homeowners Association, Inc.

This study guide provides a comprehensive review of the administrative law case John F. and Patricia E. Monahan v. Sycamore Hills Homeowners Association, Inc. (No. 08F-H088008-BFS). It examines the legal disputes regarding planned community governance, jurisdictional boundaries of administrative hearings, and the application of Arizona Revised Statutes.

——————————————————————————–

Part I: Quiz

Instructions: Answer the following questions in 2–3 sentences based on the source context.

1. What were the specific allegations made by the Petitioners in Count 1 of their petition?

2. Why did the Administrative Law Judge (ALJ) conclude that the tribunal lacked the authority to hear claims of “selective enforcement”?

3. According to the Findings of Fact, how did the Association address the Petitioners’ violation regarding their utility trailer?

4. What was the Petitioners’ primary grievance in Count 3 regarding the Association’s handling of RV parking violations?

5. How did the Board of Directors justify its decision to temporarily act as the Architectural Control Committee (ACC)?

6. What was the outcome of the Pima County Animal Noise Control hearing mentioned in Count 2?

7. What evidence did the Association provide to explain why a nominating committee had not been formed prior to the 2007 annual meeting?

8. Under A.R.S. § 33-1804, what is the “Open Meeting Law” requirement for board deliberations?

9. Why did the ALJ determine that the October 30, 2007, executive session did not violate the Open Meeting Law?

10. On what legal basis did the ALJ deny the Respondent Association’s request for attorney’s fees?

——————————————————————————–

Part II: Answer Key

1. Count 1 Allegations: The Petitioners alleged harassment and selective enforcement, specifically that the Association required them to enclose their pool pump and move a utility trailer while failing to hold other lot owners to the same Design Guidelines. They argued the Association violated Section II.I, II.M/N, and II.B.2 of the Community’s governing documents.

2. Jurisdiction over Selective Enforcement: The ALJ ruled that the Office of Administrative Hearings is limited by A.R.S. § 41-2198 to adjudicating specific violations of Title 33 and community documents. Claims of selective enforcement or “disputes between owners” where the association is not a direct party are outside this jurisdiction and are reserved for the Superior Court.

3. Resolution of Utility Trailer Issue: The Petitioners received a written notice on August 3, 2007, to store their trailer in a garage or behind the home so it was not visible from the street. They complied with the request and faxed proof of compliance to the Association by August 12, 2007, which later rendered the claim moot.

4. RV Parking Fines: The Petitioners argued that the $50 monthly fine imposed on owners of lots 35 and 60 was insufficient to change behavior. They claimed the fine was lower than external RV storage fees, effectively allowing owners to ignore the Association’s 2007 resolution against long-term RV parking.

5. Board Acting as ACC: Board President Paul Swan testified that the Board was forced to step in as the ACC after all members except John Monahan resigned in September 2007. The ALJ found that no governing document prohibited the Board from temporarily fulfilling these duties until new members were appointed.

6. Animal Noise Control Outcome: Patricia Monahan attended a hearing on April 21, 2008, where Pima County Animal Noise Control fined the owners of Lot 37 and warned them of additional penalties for future violations. Following this hearing, she testified that the dogs had stopped barking.

7. Lack of Nominating Committee: The Property Manager testified that obtaining volunteers for committees was “difficult, if not impossible” due to “difficult personalities” creating upheaval within the community. The ALJ accepted that these challenges rendered the creation of a nominating committee implausible at that time.

8. Open Meeting Law Requirements: A.R.S. § 33-1804(A) mandates that all meetings of the association and board of directors must be open to all members or their designated representatives. Members must be allowed to attend and speak before the board takes formal action on an issue.

9. Legality of Executive Session: The ALJ found the closed session was legal because it was held to discuss “pending or contemplated litigation” after receiving threat letters from an attorney representing the owners of lots 36 and 56. Under A.R.S. § 33-1804(A)(1) and (2), legal advice and litigation strategy are valid reasons to close a meeting.

10. Denial of Attorney’s Fees: The ALJ cited Semple v. Tri-City Drywall, Inc., stating that an administrative proceeding is not considered an “action” under A.R.S. §§ 33-1807(H) or 12-341.01. Therefore, even though the Association prevailed, attorney’s fees could not be awarded in this forum.

——————————————————————————–

Part III: Essay Questions

1. The Limits of Administrative Jurisdiction: Analyze the distinction between the jurisdiction of the Office of Administrative Hearings and the Arizona Superior Court as outlined in the decision. Why is the distinction between a “dispute between owners” and a “dispute with the Association” critical for standing?

2. Mootness in Administrative Adjudication: Evaluate how the concept of “mootness” applied to the various counts in this case (specifically Counts 1, 2, and 4). How does voluntary compliance by either party affect the ALJ’s ability to provide a remedy?

3. Governance Challenges in Planned Communities: Using the testimony regarding the Nominating and Architectural Committees, discuss the practical difficulties an HOA faces when community conflict discourages volunteerism. How should the law balance strict adherence to bylaws with the reality of limited community participation?

4. Transparency vs. Confidentiality: Discuss the balance of the Open Meeting Law (A.R.S. § 33-1804). Under what circumstances does the need for a Board to seek legal counsel or discuss litigation outweigh the members’ right to observe deliberations?

5. The Preponderance of the Evidence: Explain the burden of proof required in this administrative hearing. How did the ALJ define “preponderance of the evidence,” and how did the Petitioners’ evidence fail to meet this standard in Count 5?

——————————————————————————–

Part IV: Glossary of Key Terms

• A.R.S. § 33-1804 (Open Meeting Law): An Arizona statute requiring that meetings of a homeowners association board be open to all members, with specific, narrow exceptions for closed “executive” sessions.

• A.R.S. § 41-2198: The statute granting the Office of Administrative Hearings the authority to adjudicate disputes regarding planned community documents and Title 33, Chapter 16 of the Arizona Revised Statutes.

• Architectural Control Committee (ACC): A committee appointed by the Association to oversee and approve or deny requests for exterior improvements or structures on lots within the community.

• CC&Rs (Covenants, Conditions, Restrictions, and Easements): The recorded legal documents that establish the rules and regulations for a planned community and are binding on all property owners.

• Executive Session: A portion of a board meeting that is closed to the general membership to discuss sensitive matters such as legal advice, litigation, or personal member information.

• Jurisdiction: The legal authority of a court or administrative tribunal to hear and decide a specific type of case or dispute.

• Moot: A legal status where a dispute is no longer active or relevant because the issues have been resolved or the circumstances have changed, leaving no remedy for the court to provide.

• Planned Community: A real estate development where individual lot owners are mandatory members of an association and are subject to specific governing documents and dues.

• Preponderance of the Evidence: The standard of proof in civil and administrative cases, meaning the evidence shows that a claim is “more probably true than not.”

• Standing: The legal right of a party to bring a claim, requiring that the party is directly affected by the issue and that the tribunal has the authority to hear that specific person’s grievance.

Case Participants

Petitioner Side

  • John F. Monahan (Petitioner)
    Lot owner
    Appeared personally; former ACC member
  • Patricia E. Monahan (Petitioner)
    Lot owner
    Appeared personally

Respondent Side

  • Carolyn Goldschmidt (Respondent Attorney)
    Goldschmidt Law Firm
  • Sandy Sandoval (Property Manager)
    Witness
  • Paul Swan (Board President)
    Sycamore Hills Homeowners Association, Inc.
    Witness

Neutral Parties

  • Michael G. Wales (ALJ)
    Office of Administrative Hearings
  • Robert Barger (Director)
    Department of Fire, Building and Life Safety
    On service list
  • Debra Blake (Agency Staff)
    Department of Fire, Building and Life Safety
    On service list

Other Participants

  • Steven Sandoval (Attorney)
    Attorney for non-party owners of lots 36 and 56; threatened litigation