Tag Archives: A.R.S. § 33-1805

Saxton, Nancy vs. The Lakes Community Association

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Case Summary

Case ID 13F-H1314007-BFS
Agency ADRE
Tribunal OAH
Decision Date 2014-06-02
Administrative Law Judge M. Douglas
Outcome false
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Nancy Saxton Counsel Steven W. Cheifetz
Respondent The Lakes Community Association Counsel Charles E. Maxwell

Alleged Violations

A.R.S. § 33-1805

Outcome Summary

The Administrative Law Judge ruled in favor of the Respondent and dismissed the case. The Judge found that the Petitioner was contractually obligated to arbitrate disputes under the Association's bylaws, that the petition was filed after the one-year statute of limitations had expired, and that the Respondent had lawfully complied with A.R.S. § 33-1805 by offering inspection of unredacted records.

Why this result: Jurisdictional bar due to mandatory arbitration clause; statute of limitations expiration; finding of compliance by Respondent.

Key Issues & Findings

Request to Review Association Records

Petitioner alleged the Respondent violated statutes by providing heavily redacted financial records and failing to provide unredacted copies for review upon demand.

Orders: The matter was dismissed. The Tribunal found the Petitioner was required to arbitrate, the claim was barred by the statute of limitations, and the Respondent had complied with the statute by making records reasonably available.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

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  • 37
  • 38
  • 41

Decision Documents

13F-H1314007-BFS Decision – 396509.pdf

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13F-H1314007-BFS Decision – 401319.pdf

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13F-H1314007-BFS Decision – 404479.pdf

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13F-H1314007-BFS Decision – 404483.pdf

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**Case Title:** *Nancy Saxton v. The Lakes Community Association*
**Case Number:** 13F-H1314007-BFS
**Forum:** Office of Administrative Hearings, State of Arizona

**Proceedings and Background**
The hearing was held on April 29, 2014, before Administrative Law Judge M. Douglas,. Petitioner Nancy Saxton, a homeowner, filed a petition alleging The Lakes Community Association (HOA) violated A.R.S. § 33-1805 regarding the inspection of financial records,. The HOA filed motions to dismiss based on jurisdiction, the statute of limitations, and prior compliance.

**Key Facts**
* **Records Request:** Saxton submitted demands to inspect the HOA's financial records in November 2012,.
* **Production:** The HOA provided approximately 3,700 pages of documents,.
* **Redactions:** The documents contained numerous redactions. The HOA claimed these were necessary to protect personal and payroll information as permitted by statute,. Saxton argued the redactions precluded a proper evaluation of the HOA’s expenditures,.
* **Offer to Inspect:** Upon receiving complaints about the redactions, the HOA offered to allow Saxton to review un-redacted documents at the HOA attorney's office. Saxton declined this offer, feeling it would be "futile" or intimidating,.

**Key Legal Arguments and Issues**
1. **Arbitration:** The HOA argued that an "Alternative Dispute Resolution" amendment to its Bylaws required binding arbitration for governance disputes, precluding administrative action,.
2. **Statute of Limitations:** The HOA contended the claim was barred by the one-year statute of limitations under A.R.S. § 12-541(5) for liabilities created by statute,.
3. **Compliance:** The HOA argued it satisfied its statutory obligation to make records "reasonably available" by providing copies and offering an in-person review of un-redacted files,.

**Administrative Law Judge Decision**
The ALJ ruled in favor of the Respondent (the HOA) on all three major points:

1. **Arbitration Clause Enforced:** The ALJ concluded that under the HOA's Bylaws and Arizona common law, Saxton was required to submit her claims to arbitration. The arbitration clause was deemed valid and enforceable.
2. **Statute of Limitations Expired:** The ALJ determined the cause of action accrued ten business days after Saxton’s November 5, 2012 demand. Because the petition was filed on November 25, 2013, it fell outside the one-year limitation period prescribed by A.R.S. § 12-541(5).
3. **Substantive Compliance:** The ALJ found that the HOA had complied with A.R.S. § 33-1805. By providing redacted copies and subsequently making un-redacted versions available for review at their attorney's office, the HOA satisfied the requirement to make records "reasonably available".

**Outcome**
The matter was dismissed, and The Lakes Community Association was deemed the prevailing party. The decision was certified as the final administrative decision on July 10

Case Participants

Petitioner Side

  • Nancy Saxton (petitioner)
    The Lakes Community Association (Member)
    Homeowner
  • Steven W. Cheifetz (attorney)
    Cheifetz, Iannitelli Marcolini, P.C.
    Listed as 'Heifetz' in mailing list

Respondent Side

  • Charles E. Maxwell (attorney)
    Maxwell & Morgan, P.C.
  • Christine Green Baldanza (community manager)
    The Lakes Community Association
    Community Manager in 2012 and early 2013

Neutral Parties

  • M. Douglas (ALJ)
    Office of Administrative Hearings
  • Cliff J. Vanell (director)
    Office of Administrative Hearings
    Signed Certification of Decision
  • Gene Palma (director)
    Department of Fire, Building and Life Safety
    Agency Director
  • Joni Cage (agency staff)
    Department of Fire, Building and Life Safety
    c/o for Gene Palma
  • Rosella J. Rodriguez (clerk)
    Office of Administrative Hearings
    Mailed/transmitted decision

Other Participants

  • Marsha Hill (witness)
    The Lakes Community Association
    CPA; Former chairman of budget and finance committee
  • Maureen Harrison (witness)
    The Lakes Community Association
    Former Board Member (1993-2000, 2011-2012)

Winter, Alexander vs. Cortina Homeowners Association

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Case Summary

Case ID 13F-H1314004-BFS
Agency DFBLS
Tribunal OAH
Decision Date 2014-03-21
Administrative Law Judge M. Douglas
Outcome no
Filing Fees Refunded $550.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Alexander Winter Counsel —
Respondent Cortina Homeowners Association Counsel Mark K. Sahl

Alleged Violations

A.R.S. § 33-1805

Outcome Summary

The ALJ found that the Petitioner failed to prove by a preponderance of the evidence that the specific requested documents (Delinquency Reports, 2007-2008 budgets, specific vendor bids) existed or were withheld. Claims regarding documents addressed in a prior hearing (Docket No. 13F-H1314001-BFS) were barred by collateral estoppel.

Why this result: The Petitioner failed to meet the burden of proof regarding the existence of records, and attempted to relitigate issues decided in a prior case.

Key Issues & Findings

Failure to provide requested records (Delinquency Reports, Budgets, Contracts)

Petitioner alleged the HOA failed to provide Delinquency Reports, Operation Budgets (2007-2008), Duford Contract/Invoice, JSJ Enterprises Contract/Bid, and C&G communications bid. Petitioner also sought records (CleanCuts and RCP contracts) previously litigated.

Orders: The matter was dismissed. Respondent was deemed the prevailing party.

Filing fee: $550.00, Fee refunded: No

Disposition: petitioner_loss

Decision Documents

13F-H1314004-BFS Decision – 387230.pdf

Uploaded 2026-01-25T15:29:23 (149.4 KB)

13F-H1314004-BFS Decision – 392642.pdf

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**Case Summary: Winter v. Cortina Homeowners Association**
**Case No.** 13F-H1314004-BFS
**Forum:** Arizona Office of Administrative Hearings
**Date of Final Action:** May 1, 2014

**Overview and Procedural History**
On August 21, 2013, Petitioner Alexander Winter filed a petition with the Arizona Department of Fire, Building and Life Safety alleging that the Respondent, Cortina Homeowners Association (HOA), violated A.R.S. § 33-1805. The Petitioner claimed the HOA failed to provide requested records within the statutory ten-day timeframe.

This hearing followed a prior administrative action between the same parties (Docket No. 13F-H1314001-BFS), which had resulted in an order requiring the HOA to provide redacted documents.

**Key Facts and Arguments**
The Petitioner sought various records, including delinquency reports, operating budgets (2007–2013), and specific contracts and invoices (Duford, JSJ Enterprises, C&G Communication, CleanCuts, and Renaissance Community Partners).

* **Petitioner’s Position:** Mr. Winter argued that the HOA failed to fulfill his requests within ten business days. He asserted that certain records, such as delinquency reports and vendor bids, "should exist" and challenged the HOA's claim that they did not possess them. He acknowledged that issues regarding CleanCuts and Renaissance Community Partners (RCP) were addressed in the prior hearing but claimed his current requests were distinct.
* **Respondent’s Defense:** The HOA argued that it had complied with the order from the previous hearing by providing approximately 3,200 pages of documents. Regarding the new allegations, the HOA testified that the specific delinquency reports, older budgets (2007–2008), and certain vendor contracts (Duford, JSJ, C&G) simply did not exist or were not in their possession. They argued that the requests regarding CleanCuts and RCP were barred by the previous litigation.

**Main Legal Issues**
1. **Existence of Records:** Whether the Petitioner could prove the existence of documents the HOA claimed it did not possess.
2. **Collateral Estoppel:** Whether the claims regarding CleanCuts and RCP contracts were precluded because they were already adjudicated in the prior administrative hearing.

**Findings and Conclusions**
The Administrative Law Judge (ALJ) ruled in favor of the Respondent on all counts:

* **Burden of Proof regarding Existence of Records:** The ALJ found the evidence insufficient to prove that the requested delinquency reports, Duford contract, JSJ contract/bid, and C&G bid actually existed. The ALJ ruled that the HOA cannot be held responsible for producing documents it does not possess and noted there was no credible evidence that the HOA withheld existing documents.
* **Collateral Estoppel:** The ALJ determined that the requests concerning CleanCuts and RCP documents were specifically addressed in the prior order (Docket No. 13F-H1314001-BFS). The ALJ applied the doctrine of collateral estoppel, which precludes relitigating facts or issues previously

Case Participants

Petitioner Side

  • Alexander Winter (Petitioner)
    Cortina Homeowners Association member
    Appeared on his own behalf

Respondent Side

  • Mark K. Sahl (Attorney)
    Carpenter, Hazlewood, Delgado & Bolen, P.L.C.
    Represented Respondent at the hearing
  • Kevin H. Bishop (Witness)
    Renaissance Community Partners (RCP)
    President of RCP; Community Manager and Statutory Agent for Cortina
  • Christopher Scott Puckett (Witness)
    Cortina Homeowners Association
    President of the Board of Directors

Neutral Parties

  • M. Douglas (Administrative Law Judge)
    Office of Administrative Hearings
    Presided over the hearing and issued the decision
  • Tammy L. Eigenheer (Administrative Law Judge)
    Office of Administrative Hearings
    Presided over the prior administrative hearing (Docket No. 13F-H1314001-BFS)
  • Gene Palma (Agency Director)
    Department of Fire, Building and Life Safety
    Recipient of the transmitted decision
  • Cliff J. Vanell (OAH Director)
    Office of Administrative Hearings
    Certified the ALJ decision
  • Joni Cage (Agency Staff)
    Department of Fire, Building and Life Safety
    Listed in mailing address for Gene Palma
  • Rosella J. Rodriguez (Clerk/Staff)
    Office of Administrative Hearings
    Signed the mailing certificate

Winter, Alexander vs. Cortina Homeowners Association

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Case Summary

Case ID 13F-H1314001-BFS
Agency DFBLS
Tribunal OAH
Decision Date 2013-12-12
Administrative Law Judge Tammy L. Eigenheer
Outcome yes
Filing Fees Refunded $550.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Alexander Winter Counsel —
Respondent Cortina Homeowners Association Counsel Augustus H. Shaw, IV

Alleged Violations

A.R.S. § 33-1805

Outcome Summary

Petitioner established that Respondent violated A.R.S. § 33-1805 by failing to provide redacted invoices and failing to make contracts available for review within 10 business days. Respondent was ordered to comply and refund the filing fee.

Key Issues & Findings

Failure to provide records

Petitioner alleged Respondent failed to provide requested invoices and contracts within 10 business days. Respondent claimed invoices contained personal info and contracts contained trade secrets.

Orders: Respondent ordered to provide copies of documents (redacted as provided in statute) within 10 days and refund $550 filing fee.

Filing fee: $550.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1805
  • A.R.S. § 44-401

Decision Documents

13F-H1314001-BFS Decision – 374343.pdf

Uploaded 2026-01-25T15:29:01 (114.2 KB)

13F-H1314001-BFS Decision – 378997.pdf

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**Case Summary: 13F-H1314001-BFS**

**Case Title:** *Alexander Winter v. Cortina Homeowners Association*
**Forum:** Office of Administrative Hearings, State of Arizona
**Decision Date:** December 12, 2013 (Certified Final on January 17, 2014)

**Proceedings**
On November 22, 2013, Administrative Law Judge Tammy L. Eigenheer presided over a hearing regarding a dispute between homeowner Alexander Winter (Petitioner) and the Cortina Homeowners Association (Respondent). The Petitioner alleged the Respondent violated A.R.S. § 33-1805 by failing to provide access to requested Association records within the statutory timeframe.

**Key Facts**
* On June 12, 2013, the Petitioner submitted a written request to inspect and copy various records, including budgets, general ledgers, and specific vendor contracts and invoices ("Clean Cuts" and "Renaissance Community Partners").
* On June 21, 2013, the Respondent’s manager, Kevin Bishop, replied via email. He agreed to provide some documents but refused to provide copies of Renaissance invoices, claiming they contained protected financial information of individual members.
* Regarding the contracts, Bishop stated they were viewable for inspection only (no copies) but deferred the inspection until after his return from vacation on July 7, 2013—a date beyond the statutory 10-business-day requirement.
* The Petitioner filed a complaint with the Department of Fire, Building and Life Safety on July 3, 2013, after being unable to access the records.

**Key Arguments**
* **Petitioner:** Argued he was entitled to the records to understand the Association's financial standing. He contended that if invoices contained personal data, he should have received redacted copies rather than a total denial. He further argued he was denied the opportunity to view contracts within the required 10 business days.
* **Respondent:** Argued that the Renaissance invoices contained detailed assessments and late fees related to individual members, making them protected under A.R.S. § 33-1805(B)(4). The Respondent also claimed vendor contracts contained "trade secrets" and that their policy was to allow inspection but not copying.

**Legal Analysis and Findings**
The Administrative Law Judge ruled in favor of the Petitioner, establishing a violation of A.R.S. § 33-1805 based on the following:

1. **Withheld Invoices:** The ALJ acknowledged that A.R.S. § 33-1805(B)(4) protects personal member financial records. However, the Respondent had a statutory obligation to provide *redacted* copies of the invoices rather than withholding the documents entirely.
2. **Delayed Inspection:** Although the Petitioner initially acknowledged that contracts were for inspection only, the Respondent failed to make them available within the statutory 10-business-day window. The manager's vacation caused a delay of 18 business days, constituting a violation of A.R.S. § 33-1805(A).
3. **Available Documents:** For other documents that were copied and made available but not picked up by the Petitioner, no violation was found.

**Outcome and Order**
* The Petition was granted.
* **Order:** The Respondent was ordered to comply with A.R.S. § 33-1805 by providing the Petitioner with copies of the requested documents (appropriately redacted) within ten days.
* **Costs:** The Respondent was

Case Participants

Petitioner Side

  • Alexander Winter (Petitioner)
    Homeowner; owns a landscaping management company

Respondent Side

  • Augustus H. Shaw, IV (HOA attorney)
    Shaw & Lines, LLC
    Represented Cortina Homeowners Association
  • Kevin Bishop (property manager)
    Renaissance Community Partners
    Statutory agent and Manager for Respondent; provided testimony

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
    Presiding Administrative Law Judge
  • Gene Palma (Director)
    Department of Fire, Building and Life Safety
    Agency Director listed on distribution
  • Cliff J. Vanell (Director)
    Office of Administrative Hearings
    Certified the ALJ decision
  • Joni Cage (Agency Staff)
    Department of Fire, Building and Life Safety
    Listed on distribution for Gene Palma
  • Rosella J. Rodriguez (Clerk)
    Office of Administrative Hearings
    Signed mailing certification

Knight, Edmund R. vs. Springfield Community Association

Posted on by

Case Summary

Case ID 12F-H1213008-BFS
Agency Department of Fire, Building and Life Safety
Tribunal OAH
Decision Date 2013-01-31
Administrative Law Judge Tammy L. Eigenheer
Outcome no
Filing Fees Refunded $550.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Edmund R. Knight Counsel —
Respondent Springfield Community Association Counsel Chad Miesen

Alleged Violations

A.R.S. § 33-1805

Outcome Summary

The Administrative Law Judge ruled that the Respondent did not violate A.R.S. § 33-1805 because the statute permits the redaction of individual employee compensation from association records.

Why this result: The requested record fell under a statutory exception (A.R.S. § 33-1805(B)(5)) protecting employee compensation data.

Key Issues & Findings

Failure to provide complete employment contract

Petitioner requested a copy of the manager's employment contract. Respondent provided a redacted copy with compensation details removed. Petitioner argued he was entitled to full financial records.

Orders: Petition dismissed; no action required of Respondent.

Filing fee: $550.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • 2
  • 3
  • 4
  • 5
  • 10
  • 11

Decision Documents

12F-H1213008-BFS Decision – 323297.pdf

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12F-H1213008-BFS Decision – 329618.pdf

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**Case Summary: *Edmund R. Knight v. Springfield Community Association***
**Case No.** 12F-H1213008-BFS

**Procedural History**
This matter was heard before Administrative Law Judge Tammy L. Eigenheer on January 15, 2013, at the Office of Administrative Hearings in Phoenix, Arizona,. The Petitioner, Edmund R. Knight, appeared on his own behalf, while the Respondent, Springfield Community Association, was represented by legal counsel.

**Facts and Main Issues**
The dispute arose from a records request made by the Petitioner on May 14, 2012, seeking a copy of the employment contract for the Respondent's property manager. The Respondent provided a copy of the contract but redacted the sections detailing the manager’s compensation,.

The Petitioner subsequently filed a petition alleging that the Respondent violated A.R.S. § 33-1805 by failing to provide the complete, unredacted contract,. The Petitioner argued that as a homeowner, he was entitled to "all financial" records to understand the association's financial standing.

The central legal issue was whether the association was statutorily authorized to withhold specific compensation details regarding an employee under the exceptions provided in A.R.S. § 33-1805.

**Key Legal Arguments and Analysis**
The Administrative Law Judge (ALJ) analyzed the relevant statute, A.R.S. § 33-1805. While subsection (A) generally mandates that financial and other records be made reasonably available to members, subsection (B) lists specific exceptions.

The ALJ highlighted A.R.S. § 33-1805(B)(5), which explicitly states that records may be withheld if they relate to the "compensation of… an individual employee of the association". The Judge found that the property manager was an employee of the association. Consequently, the Respondent was legally entitled to redact the compensation information from the document provided to the Petitioner.

**Final Decision and Outcome**
The ALJ concluded that the Petitioner failed to meet the burden of proof to establish a violation of the statute,. The Judge recommended that the petition be dismissed, ruling that no action was required of the Respondent.

On March 13, 2013, the Director of the Office of Administrative Hearings certified the ALJ's decision as the final administrative decision of the Department of Fire, Building and Life Safety, as the Department had taken no action to reject or modify the decision within the statutory review period.

Case Participants

Petitioner Side

  • Edmund R. Knight (Petitioner)
    Homeowner
    Appeared on his own behalf
  • J. Roger Wood (attorney)
    Sent a request on behalf of Petitioner on June 8, 2012

Respondent Side

  • Chad Miesen (attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC
    Represented Springfield Community Association

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
    Presided over the hearing and issued the decision
  • Gene Palma (Director)
    Department of Fire, Building and Life Safety
    Agency Director to whom the decision was transmitted
  • Cliff J. Vanell (Director)
    Office of Administrative Hearings
    Certified the ALJ decision as final
  • Joni Cage (staff)
    Department of Fire, Building and Life Safety
    Listed in mailing address for Gene Palma

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

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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 no
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

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

Alleged Violations

A.R.S. § 33-1804
A.R.S. § 33-1805

Outcome Summary

The ALJ dismissed both petitions (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

Decision Documents

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)

**Case Summary: Sellers v. Crossings at Willow Creek Property Owners Association**
**Case Nos:** 12F-H1212002-BFS and 12F-H1212009-BFS (Consolidated)
**Forum:** Office of Administrative Hearings, State of Arizona
**Administrative Law Judge:** M. Douglas

**Overview**
Petitioners John and Debborah Sellers filed two petitions against the Crossings at Willow Creek Property Owners Association ("Crossings"). The matters were consolidated for hearings held on September 26, 2012, and January 4, 2013,. The proceedings addressed allegations regarding the conduct of Architectural Review Committee (ARC) meetings and the withholding of association records.

**Main Issues and Arguments**

**1. Public Conduct of ARC Meetings (Case No. 12F-H1212002-BFS)**
* **Petitioner Allegation:** The Petitioners alleged that Crossings failed to notice and conduct ARC meetings publicly, violating A.R.S. § 33-1804 and community documents.
* **Respondent Defense:** Crossings argued that it complied with state law and bylaws. Witnesses testified that the ARC did not hold "regularly scheduled" meetings. Instead, meetings occurred "on demand" or "as necessary" depending on when architectural applications were submitted,.
* **Key Legal Point:** A.R.S. § 33-1804(A) mandates that "regularly scheduled committee meetings" be open to members.
* **Finding:** The Administrative Law Judge (ALJ) found that credible testimony established ARC meetings were not regularly scheduled. Consequently, the notice requirements for regularly scheduled meetings under the statute and Crossings’ CC&Rs did not apply to these irregular occurrences.

**2. Production of Records (Case No. 12F-H1212009-BFS)**
* **Petitioner Allegation:** The Petitioners claimed Crossings failed to provide requested records, specifically invoices from the HOA’s attorneys and communications between the attorneys and third parties.
* **Respondent Defense:** Crossings denied the allegations, asserting that the refusal to release documents was based on privilege. Testimony indicated the association was involved in civil litigation with the City of Prescott and that communications often related to potential insurance claims or legal advice,.
* **Key Legal Point:** A.R.S. § 33-1805(B) permits an association to withhold

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 no
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

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

Alleged Violations

A.R.S. § 33-1804
A.R.S. § 33-1805

Outcome Summary

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

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

Key Issues & Findings

Failure to notice and conduct publicly ARC Meetings

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

Orders: Petition dismissed; no action required.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

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

Decision Documents

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)

**Case Summary: Sellers v. Crossings at Willow Creek Property Owners Association**
**Case No:** 12F-H1212009-BFS (Consolidated with 12F-H1212002-BFS)

**Overview**
This hearing concerned a dispute between homeowners John and Debborah Sellers (Petitioners) and the Crossings at Willow Creek Property Owners Association (Respondent). The matter was heard by Administrative Law Judge M. Douglas on September 26, 2012, and January 4, 2013. The two cases were consolidated for the hearing.

**Key Issues**
1. **Refusal to Provide Records (Case 12F-H1212009-BFS):** The Petitioners alleged the Association failed to provide requested records, specifically invoices from the HOA’s attorneys and communications between the attorneys and third parties (including settlement correspondence). Petitioners argued these did not constitute attorney-client privileged communications.
2. **Failure to Conduct Public Meetings (Case 12F-H1212002-BFS):** The Petitioners alleged the Architectural Review Committee (ARC) failed to notice and conduct its meetings publicly, violating A.R.S. § 33-1804 and community documents.

**Legal Arguments and Testimony**
* **Records:** The Respondent denied the allegations, asserting the refusal was based on statutory privilege. Relevant statutes A.R.S. § 33-1805(B) and A.R.S. § 12-2234 allow an association to withhold records related to privileged attorney-client communications and pending litigation.
* **Meetings:** Testimony established that the ARC did not hold "regularly scheduled" meetings; instead, meetings occurred "on demand" or "as necessary" based on architectural submissions. The Association's Bylaws mandate the ARC meet "from time to time as necessary" rather than on a fixed schedule. A.R.S. § 33-1804(A) requires that "regularly scheduled committee meetings" be open to members.

**Findings of Fact and Conclusions of Law**
The Administrative Law Judge (ALJ) placed the burden of proof on the Petitioners to show a violation by a "preponderance of the evidence".

1. **Regarding Records:** The ALJ found that the Association's refusal to release the requested documents was properly based on statutory exceptions for attorney-client privileged material. The Petitioners failed to prove that the withholding of these documents violated the statute or the CC&Rs.
2. **Regarding

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

Coon, Horace E. vs. Indian Hills Airpark Association

Posted on by

Case Summary

Case ID 08F-H089002-BFS
Agency DFBLS
Tribunal OAH
Decision Date 2008-11-17
Administrative Law Judge Brian Brendan Tully
Outcome no
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Horace E. Coon Counsel —
Respondent Indian Hills Airpark Association Counsel Jonathan Olcott

Alleged Violations

A.R.S. § 33-1805

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the Respondent Association complied with records request statutes by providing the documents in an electronic format.

Why this result: The ALJ determined that providing records on a computer disk satisfied the statutory obligation under A.R.S. § 33-1805 and A.R.S. § 44-7007. The Petitioner's insistence on paper copies was not legally supported.

Key Issues & Findings

Failure to provide requested financial/accounting records

Petitioner requested records on May 29, 2008. Respondent provided records on a computer disk on June 12, 2008. Petitioner was initially unable to access the disk due to a password error, which Respondent corrected by issuing a new disk. Petitioner contended he was entitled to paper copies. The ALJ ruled that electronic delivery satisfied the statutory requirements.

Orders: The Petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1805
  • A.R.S. § 44-7007

Decision Documents

08F-H089002-BFS Decision – 202581.pdf

Uploaded 2026-01-25T15:23:40 (92.8 KB)





Briefing Doc – 08F-H089002-BFS


Briefing on Administrative Law Judge Decision: Coon vs. Indian Hills Airpark Association

Executive Summary

This briefing summarizes the final agency action and Administrative Law Judge (ALJ) decision regarding a dispute between Horace E. Coon (Petitioner) and the Indian Hills Airpark Association (Respondent). The central conflict involved the Petitioner’s allegation that the Respondent failed to provide requested financial and accounting records in violation of state statutes and association bylaws.

The Administrative Law Judge, Brian Brendan Tully, ruled in favor of the Respondent, finding that the Indian Hills Airpark Association complied with its legal obligations by providing the requested documents in an electronic format. The decision establishes that under Arizona law, electronic records are sufficient to satisfy records requests for planned communities, and associations are not required to provide paper copies if electronic versions are available and accessible. The Petitioner’s complaint was dismissed in its entirety.

Procedural Background

The case was adjudicated by the Arizona Office of Administrative Hearings following a petition filed with the Arizona Department of Fire, Building and Life Safety.

• Case Number: 08F-H089002-BFS

• Petitioner: Horace E. Coon

• Respondent: Indian Hills Airpark Association

• Hearing Date: November 4, 2008

• Decision Date: November 17, 2008

• Jurisdiction: Under A.R.S. § 41-2198, the Office of Administrative Hearings has the authority to adjudicate complaints regarding Title 33, Chapter 16 of the Arizona Revised Statutes and planned community documents.

Core Allegations and Disputes

The Petitioner, a member of the Respondent association, filed a single-count petition on July 7, 2008. The complaint alleged that on or about June 12, 2008, the Respondent committed the following violations:

1. Failure to Provide Records: The Petitioner claimed the Respondent failed to provide requested financial and accounting records.

2. Lack of Communication: The Petitioner alleged the Respondent ignored repeated requests for association documents.

3. Statutory and Bylaw Violations: The Petitioner cited violations of A.R.S. § 33-1805 and Indian Hills Airpark Association By-laws, Article IX, Section 2.

Findings of Fact

The ALJ identified several key facts regarding the association’s records management and its response to the Petitioner’s request:

Event/Detail

Description

Request Date

May 29, 2008: Petitioner submitted a written request for records.

Record Maintenance

Respondent maintains records electronically on a treasurer’s laptop, with backups located in the association’s office.

Initial Delivery

June 12, 2008: Treasurer David Paul Miller provided the requested documents on a computer disk.

Access Issues

The Petitioner could not open the initial disk because the treasurer inadvertently protected it with a personal password.

Resolution

Upon notification of the issue, the treasurer created a new disk with a generic password, which the Petitioner was able to access.

Format Dispute

The Petitioner contended he was entitled to paper copies rather than electronic files.

Conclusions of Law

The ALJ’s decision rested on several critical legal interpretations of Arizona Revised Statutes:

• Burden of Proof: The Petitioner bore the burden of proof by a preponderance of the evidence (A.A.C. R2-19-119).

• Sufficiency of Electronic Records: The ALJ found that the Respondent complied with A.R.S. § 33-1805. Crucially, the decision cited A.R.S. § 44-7007(A) and (C), noting that electronic records supplied by the Respondent are legally compliant.

• Paper vs. Electronic Format: The ALJ explicitly ruled that the Petitioner’s claim for paper copies was not supported by statute. The Respondent’s decision to furnish documents in an electronic format was deemed “appropriate.”

• Attorney’s Fees and Costs:

◦ The Petitioner was not entitled to a filing fee reimbursement because he was not the prevailing party.

◦ The Respondent’s claim for attorney’s fees was denied, as an administrative proceeding is not considered an “action” for which such fees can be awarded under Semple v. Tri-City Drywall, Inc.

Final Order

The Petition was dismissed. Per A.R.S. § 41-2198.02(B), this decision is the final administrative decision and is not subject to a request for rehearing. The order is enforceable through contempt of court proceedings in the Superior Court.






Study Guide – 08F-H089002-BFS


Study Guide: Horace E. Coon v. Indian Hills Airpark Association

This study guide provides a comprehensive review of the administrative hearing between Horace E. Coon and the Indian Hills Airpark Association. It examines the legal framework governing Arizona homeowner associations, the responsibilities of administrative agencies, and the specific findings regarding document disclosure in planned communities.

Part I: Short-Answer Quiz

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

1. What was the specific allegation made by Horace E. Coon against the Indian Hills Airpark Association?

2. Under what statutory authority does the Arizona Department of Fire, Building and Life Safety receive petitions for HOA disputes?

3. Describe the initial technical issue the Petitioner encountered when receiving the requested records.

4. How did the Respondent’s treasurer, David Paul Miller, rectify the password issue on the data disk?

5. What was the Petitioner’s primary argument regarding the format of the documents provided by the Association?

6. Who holds the burden of proof in this administrative hearing, and what is the required standard?

7. According to the ALJ’s decision, which statutes justify the provision of records in an electronic format?

8. Why was the Petitioner denied the reimbursement of his filing fee?

9. Explain why the Respondent’s claim for attorney’s fees was denied by the ALJ.

10. What is the finality and enforcement status of the Administrative Law Judge’s decision in this case?

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Part II: Answer Key

1. Question: What was the specific allegation made by Horace E. Coon against the Indian Hills Airpark Association?

◦ Answer: The Petitioner alleged that the Respondent failed to provide requested financial and accounting records and ignored repeated requests for association documents. This was claimed to be a violation of A.R.S. § 33-1805 and Article IX, Section 2 of the association’s by-laws.

2. Question: Under what statutory authority does the Arizona Department of Fire, Building and Life Safety receive petitions for HOA disputes?

◦ Answer: Pursuant to A.R.S. § 41-2198.01(B), the Department is authorized to receive petitions regarding disputes between homeowner associations and their members. These petitions are then forwarded to the Office of Administrative Hearings for a formal hearing.

3. Question: Describe the initial technical issue the Petitioner encountered when receiving the requested records.

◦ Answer: After making a written request, the Petitioner received a computer disk from the Respondent’s treasurer on June 12, 2008. However, the Petitioner was unable to open the disk because the treasurer had inadvertently protected it with a personal password.

4. Question: How did the Respondent’s treasurer, David Paul Miller, rectify the password issue on the data disk?

◦ Answer: Rather than disclosing his personal password, Mr. Miller created a new disk for the Petitioner. This second disk utilized a generic password, which allowed the Petitioner to access the association records.

5. Question: What was the Petitioner’s primary argument regarding the format of the documents provided by the Association?

◦ Answer: The Petitioner contended that he was legally entitled to receive paper copies of the requested association documents. He argued that the provision of records in an electronic format was insufficient and not in compliance with his request.

6. Question: Who holds the burden of proof in this administrative hearing, and what is the required standard?

◦ Answer: Pursuant to A.A.C. R2-19-119(B), the Petitioner carries the burden of proof in the matter. The legal standard required to meet this burden is the “preponderance of the evidence.”

7. Question: According to the ALJ’s decision, which statutes justify the provision of records in an electronic format?

◦ Answer: The ALJ cited A.R.S. § 44-7007(A) and (C) to establish that electronic records are legally valid. The decision concluded that providing electronic copies satisfied the requirements of the planned community records statute, A.R.S. § 33-1805.

8. Question: Why was the Petitioner denied the reimbursement of his filing fee?

◦ Answer: Under A.R.S. § 41-2198.02(B), a party is only entitled to the payment of their filing fee if they are the prevailing party. Because the Petitioner’s claims were dismissed, he did not prevail and therefore had to bear the cost of the fee.

9. Question: Explain why the Respondent’s claim for attorney’s fees was denied by the ALJ.

◦ Answer: The ALJ ruled that an administrative proceeding does not constitute an “action” for which attorney’s fees can be legally awarded. This conclusion was supported by the legal precedent set in Semple v. Tri-City Drywall, Inc.

10. Question: What is the finality and enforcement status of the Administrative Law Judge’s decision in this case?

◦ Answer: This decision is the final administrative action and is not subject to a request for rehearing. However, the Order is enforceable through contempt of court proceedings in the Superior Court.

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Part III: Essay Questions

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

1. The Role of Electronic Records in Modern Governance: Analyze how the application of A.R.S. § 44-7007 impacts the traditional expectations of document disclosure in planned communities. Discuss whether electronic delivery fulfills the intent of transparency laws compared to physical paper copies.

2. Administrative vs. Judicial Proceedings: Based on the denial of attorney’s fees in this case, evaluate the legal distinctions between an “administrative proceeding” and a standard “action.” How does this distinction affect the financial risks and strategies for parties involved in HOA disputes?

3. Evaluating the Burden of Proof: Discuss the significance of the “preponderance of evidence” standard in the context of this case. Why did the Petitioner fail to meet this burden despite the Association’s initial technical errors with the password-protected disk?

4. Due Process in HOA Disputes: Outline the procedural journey of a petition from the Arizona Department of Fire, Building and Life Safety to the Office of Administrative Hearings. Explain how this structure is intended to provide an independent forum for members and associations.

5. Statutory Interpretation of A.R.S. § 33-1805: Examine how the Administrative Law Judge balanced the requirements of planned community documents (By-laws) with state statutes. In what ways do state laws override or clarify the specific record-keeping obligations of an association?

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Part IV: Glossary of Key Terms

Definition

A.R.S. § 33-1805

The Arizona Revised Statute governing the maintenance and availability of records for planned communities.

A.R.S. § 41-2198

The statute granting the Office of Administrative Hearings the authority to adjudicate complaints regarding planned communities.

Administrative Law Judge (ALJ)

An official who presides over federal or state administrative proceedings, making findings of fact and conclusions of law.

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 another party.

Contempt of Court

A legal mechanism used to enforce a court or administrative order; in this case, the Superior Court may use these proceedings to ensure the ALJ’s order is followed.

Final Agency Action

A definitive decision by an agency that is not subject to further internal review or rehearing, often labeled “ALJFIN” in this context.

Petitioner

The party who initiates a lawsuit or petition; in this case, Horace E. Coon.

Planned Community

A real estate development which includes shared property and is governed by an association of owners, such as the Indian Hills Airpark Association.

Preponderance of the Evidence

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

Respondent

The party against whom a petition is filed and who must respond to the allegations; in this case, the Indian Hills Airpark Association.






Blog Post – 08F-H089002-BFS


Why Your HOA Doesn’t Owe You a Paper Trail: Lessons from the Digital Front Lines

1. Introduction: The HOA Transparency Trap

The relationship between homeowners and their associations often hinges on a fundamental friction point: access to information. When a member requests financial or accounting records, a conflict frequently arises regarding exactly how those records must be delivered. Does a member’s “right to records” legally equate to a “right to paper”? A 2008 legal dispute, Coon vs. Indian Hills Airpark Association, provides a definitive answer for the digital age, clarifying that associations have broad discretion in how they fulfill their transparency obligations.

2. The Digital Default: Why Bytes Equal Paper

In the Coon case, the core ruling centered on the format of the records provided. The Administrative Law Judge determined that furnishing documentation on a computer disk is legally appropriate and fully satisfies the requirements of A.R.S. § 33-1805.

This decision is built upon a “legal bridge” between property law and electronic record statutes. While A.R.S. § 33-1805 governs the inspection of HOA records, A.R.S. § 44-7007(A) and (C) establish that electronic records are legally sufficient and carry the same weight as their physical counterparts.

This effectively shifts the burden of technology onto the homeowner. If an association maintains its records electronically, a member cannot claim “I don’t own a computer” as a legal basis to demand paper. The law essentially dictates that if you want to participate in the governance of your community, you must be prepared to engage with the digital medium.

3. The “Personal Password” Pitfall

A unique complication in this case involved the association’s treasurer, David Paul Miller. From a legal tech perspective, the association demonstrated a “best practice” by maintaining digital redundancy: records were kept on Miller’s laptop and backed up to a secondary computer in the association’s office.

However, the “digital front lines” are often messy. When Miller sent a disk to the Petitioner, the member found himself locked out. Miller, who was at his home in Oregon at the time, realized he had inadvertently secured the disk with his own personal password. This incident highlights how HOA business is now geographically untethered, yet still prone to human error.

Refusing to disclose his personal password for security reasons, Miller eventually provided a new disk with a generic password. Even though the Petitioner later claimed he still “cannot access all data,” the court ruled that the association had met its burden. This serves as a vital reminder: an HOA is required to provide access, but it is not legally obligated to serve as the member’s personal IT help desk. As the ruling noted:

4. Statutory Silence: Why You Can’t Dictate the Medium

The Petitioner explicitly contended that he was entitled to paper copies of the requested documents. However, the court was clear: this demand was “not supported by the evidence or applicable statutes.”

This is a crucial takeaway for any HOA member. Homeowners do not have the legal authority to dictate the medium of the data. If the association provides a functional electronic alternative that contains the required information, they have met their statutory obligation.

The law does not require associations to incur the cost or administrative burden of printing hundreds of pages simply to satisfy a member’s preference. Once the disk is delivered, the association’s job is done, regardless of whether the member prefers the feel of physical paper.

5. The High Cost of the “Non-Action”

The financial outcome of the Coon case serves as a warning about the “lose-lose” nature of these disputes. Because the Petitioner did not prevail, his Petition was dismissed, and he was not entitled to recover his filing fee under A.R.S. § 41-2198.02(B).

The HOA, despite winning, also faced a financial hit. The association’s claim for attorney’s fees was denied based on a technical but critical legal nuance. Referencing Semple v. Tri-City Drywall, Inc., the judge explained that administrative proceedings are not considered “actions” in the specific sense that allows for fee recovery under Arizona law.

This creates a harsh reality for both parties: in these administrative hearings, you can win the legal argument and still lose the financial battle.

6. Conclusion: Navigating the Future of HOA Transparency

The shift toward electronic records is an irreversible trend in governance. As associations move away from physical filing cabinets and toward cloud storage and digital ledgers, the “paper trail” is becoming a string of bytes. Homeowners must prepare for a digital-first relationship with their associations, ensuring they have the tools and technical literacy to review electronic files.

As we move toward a fully digital default, we must confront a difficult question: does this shift toward electronic-only records effectively disenfranchise elderly or low-income members who lack the high-speed access or hardware required to exercise their right to transparency?


Case Participants

Petitioner Side

  • Horace E. Coon (Petitioner)
    Appeared personally

Respondent Side

  • Jonathan Olcott, Esq. (Respondent Attorney)
    The Brown Law Group
  • David Paul Miller (Treasurer)
    Indian Hills Airpark Association
    Prepared the computer disk containing records

Neutral Parties

  • Brian Brendan Tully (ALJ)
    Office of Administrative Hearings
  • Robert Barger (Director)
    Department of Fire Building and Life Safety
    Received copy of order
  • Debra Blake (Agency Staff)
    Department of Fire Building and Life Safety
    Received copy of order

Kayser, William W. -v- Barclay Place Homeowners Association

Posted on by

Case Summary

Case ID 08F-H088006-BFS
Agency DFBLS
Tribunal OAH
Decision Date 2008-05-30
Administrative Law Judge Lewis D. Kowal
Outcome partial
Filing Fees Refunded $2,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner William W. Kayser Counsel —
Respondent Barclay Place Homeowners Association Counsel Heather A. Fazio

Alleged Violations

Bylaws Article VII, Section 8(d)
A.R.S. § 33-1805
A.R.S. § 33-1805
Bylaws Article III, Section 3

Outcome Summary

Petitioner prevailed on claims regarding failure to conduct outside audits, failure to provide records timely, and failure to provide proper meeting notice. Petitioner lost on claims regarding assessment notices and meeting quorums. Respondent ordered to provide records and refund full filing fee.

Key Issues & Findings

Failure to accomplish annual audit of 2006

Petitioner alleged the Association failed to conduct annual audits. The ALJ found the Association violated the Bylaws requiring an annual audit by an outside firm, although it complied with statutory monthly compilation requirements.

Orders: Association ordered to comply with Bylaws regarding audits.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1810
  • Bylaws Article VII, Section 8(d)

Failure to retain and provide Association records

Petitioner requested various financial records and minutes. The Association failed to provide them within the statutory 10-day timeframe and failed to maintain complete records as required by Bylaws.

Orders: Association ordered to provide all existing requested documents at no expense to Petitioner.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1805
  • Bylaws Article VII, Section 2(a)
  • Bylaws Article X

Failure to give 30 day notice of assessment

Petitioner alleged failure to receive notice of assessment increases. Respondent provided evidence that notices were sent.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_lose

Cited:

  • CC&Rs Article IV, Section 3
  • CC&Rs Article IV, Section 6

Failure to provide proper notice for special meeting

Petitioner challenged the notice for the Nov 23, 2007 meeting. ALJ found posting at mailboxes did not satisfy Bylaw notice requirements for a special meeting of members.

Orders: Association ordered to comply with notice provisions.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • Bylaws Article III, Section 3

Decision Documents

08F-H088006-BFS Decision – 191832.pdf

Uploaded 2026-02-11T05:32:19 (113.1 KB)





Briefing Doc – 08F-H088006-BFS


Briefing Document: Kayser v. Barclay Place Homeowners Association (No. 08F-H088006-BFS)

Executive Summary

This briefing document summarizes the administrative law decision regarding a dispute between William W. Kayser (Petitioner) and the Barclay Place Homeowners Association (Respondent). The case centered on allegations of financial mismanagement, failure to provide corporate records, and violations of meeting notice and quorum procedures.

The Administrative Law Judge (ALJ) concluded that while the Petitioner did not prevail on every specific count, he succeeded on the “most substantial issues.” Specifically, the Association was found in violation of its Bylaws for failing to conduct an annual audit by an outside public accounting firm and failing to maintain and provide complete corporate records within the statutory timeframe. Consequently, the Petitioner was deemed the prevailing party and awarded a reimbursement of his $2,000.00 filing fee. The Association was ordered to provide all requested documents and comply with governing documents and state statutes moving forward.

——————————————————————————–

Procedural Context and Scope

The hearing was conducted on May 12, 2008, under the jurisdiction of the Arizona Office of Administrative Hearings. The scope of the hearing was limited by the effective date of A.R.S. § 41-2198.01 et seq., the enabling legislation for this administrative process.

• Excluded Items: Claims regarding real estate conveyances prior to the statute’s effective date and bank statements lacking specific dates were ruled outside the scope of the hearing.

• Timeframe of Focus: The analysis was limited to acts occurring on or after September 21, 2006, as well as specific events in 2007 and 2008.

• Burden of Proof: The Petitioner bore the burden of proving violations by a “preponderance of the evidence,” defined as evidence showing the fact is more probable than not.

——————————————————————————–

Analysis of Key Themes and Findings

1. Financial Accountability and Auditing Requirements

The dispute involved a distinction between internal financial management and formal auditing requirements mandated by the Association’s governing documents.

• Current Practice: R & R Management Company, which manages the Association’s records, performs monthly financial compilations. Testimony indicated that a certified public accountant reviews these records monthly.

• The Violation: The ALJ found that while the Association complied with A.R.S. § 33-1810 regarding monthly financial compilations, it violated Bylaws, Article VII, Section 8 (d). This provision requires an annual audit to be performed by an outside public accounting firm.

• Admission: The management company admitted that while they follow internal processes, they do not have annual audits performed by an independent public accounting firm.

2. Record Retention and Member Access

A central theme of the petition was the Association’s failure to provide documents requested by the Petitioner in a timely and complete manner.

Legal Requirement

Finding

Response Time

A.R.S. § 33-1805 requires records be provided within 10 business days.

Violation: Evidence established documents were not provided within the 10-day window.

Record Maintenance

Bylaws Article VII & X require a complete record of Association acts and corporate affairs.

Violation: The Association failed to maintain complete records. A Board member testified that previous documents were boxed up and could not be located.

Annual Statements

Bylaws Article VII, Section 2(a) requires a statement at annual meetings.

No Violation: Testimony established that statements were provided at the 2006 and 2007 annual meetings.

3. Governance: Meetings, Notices, and Assessments

The Petitioner challenged the validity of assessment increases and the legality of a specific meeting held on November 23, 2007.

• Assessment Increases: The Association’s Board has the authority to increase annual assessments by up to 5% without a vote from the membership. The ALJ found the 2007 and 2008 increases were within this 5% limit; therefore, no membership vote was required.

• The November 23, 2007 Meeting: This meeting was a “rescheduled” meeting due to a lack of quorum at a November 12 meeting.

◦ Nature of the Meeting: The ALJ determined this was a “special meeting of members.”

◦ Notice Violation: The Association posted notice at mailboxes. The ALJ ruled that mailbox postings do not satisfy the notice requirements for a special meeting of members as defined in Bylaws, Article III, Section 3.

◦ Quorum: Despite the notice issue, the action taken (the assessment increase) was valid because it was accomplished by a quorum of the Board of Directors, which did not require a member vote for a sub-5% increase.

——————————————————————————–

Conclusion of Law and Final Order

The ALJ reached the following conclusions regarding the prevailing party and required remedies:

Determination of Prevailing Party

Although the Association prevailed on several individual counts (such as the 30-day notice of assessment and the 5% cap on increases), the Petitioner was designated the prevailing party. The ALJ cited the Petitioner’s success on “substantial issues,” specifically:

1. The failure to perform mandatory independent annual audits.

2. The failure to provide access to records within the statutory 10-day timeframe.

3. The failure to maintain complete corporate records.

Mandatory Relief

Under A.R.S. § 41-2198.02, the Association was ordered to:

• Document Production: Provide, at no expense to the Petitioner, copies of all previously requested documents within 10 days of the order.

• Reimbursement: Pay the Petitioner $2,000.00 to reimburse his filing fee within 40 days.

• Statutory Compliance: Comply with all provisions of the CC&Rs, Bylaws, and state statutes previously found to be in violation.

Civil Penalties and Administrative Limits

The ALJ declined to impose civil penalties, stating they were not warranted by the particular facts of the case. Furthermore, the ALJ noted that specific directives requested by the Petitioner regarding how the Association should act in the future were outside the scope of the ALJ’s authority.






Study Guide – 08F-H088006-BFS


Study Guide: Administrative Law Case No. 08F-H088006-BFS

This study guide examines the administrative law proceedings and ultimate decision regarding the dispute between William W. Kayser and the Barclay Place Homeowners Association. The document focuses on the legal standards, findings of fact, and conclusions of law presented during the May 2008 hearing.

——————————————————————————–

Part 1: Short-Answer Quiz

Instructions: Answer the following questions using 2-3 sentences based on the information provided in the source text.

1. What was the primary conflict regarding the Association’s 2006 annual audit?

2. Why were Items 1 and 2 of the original Petition ruled to be outside the scope of the hearing?

3. What did the Administrative Law Judge (ALJ) conclude regarding the HOA’s obligation to provide documents within a specific timeframe?

4. How did the management company, R & R Management, define its responsibility toward non-financial Association records?

5. What was the finding regarding the 30-day notice of annual assessments for 2006 and 2007?

6. Explain the dispute regarding the meeting held on November 23, 2007, at Robb & Stucky.

7. Under what conditions can the Association’s Board of Directors increase annual assessments without a vote from the general membership?

8. Why did the ALJ determine that the posting of meeting notices at mailboxes was legally insufficient for the November 23 meeting?

9. What was the legal definition of “preponderance of the evidence” used to decide this case?

10. Despite not prevailing on every item in his petition, why was William Kayser designated the “prevailing party”?

——————————————————————————–

Part 2: Answer Key

1. While the Association conducted monthly financial reviews, the Petitioner argued that the By-Laws required an audit by an outside public accounting firm. The ALJ found that the Association violated Article VII, Section 8(d) of the By-Laws by failing to secure this external audit.

2. These items pertained to a real estate conveyance that took place before the effective date of the enabling legislation (A.R.S. § 41-2198.01 et seq.). Consequently, the ALJ did not have the statutory authority to address those specific historical claims.

3. The ALJ ruled that the Association violated A.R.S. § 33-1805 by failing to provide certain requested financial documents within ten business days. It was established that unapproved copies were eventually provided, but the delay exceeded the legal requirement.

4. R & R Management stated it was contractually obligated to maintain financial records but was not required to keep a complete set of records for all other Association activities. They provided other documents to homeowners only as a “courtesy” rather than a contractual duty.

5. The ALJ found that the Petitioner failed to prove a violation of the notice requirements. Evidence from R & R Management’s records indicated that notice was sent, and the ALJ concluded the Association had indeed provided the required 30-day notice for those years.

6. The Petitioner claimed he saw a meeting notice that later disappeared and that there was no record of a meeting at the venue; however, a Board member testified the meeting did occur with a quorum present. The ALJ eventually concluded it was a “special meeting of members” rather than an annual or regular meeting.

7. The Board of Directors has the authority to set an assessment increase as long as the amount does not exceed 5% of the previous assessment. If the increase is within this 5% threshold, no vote of the Association members is required.

8. The ALJ found that while mailboxes were used for posting, this method did not satisfy the specific notice requirements for a “special meeting of members” as dictated by Article III, Section 3 of the By-Laws. The judge noted that special meetings have stricter procedural notice standards.

9. According to Black’s Law Dictionary, as cited in the case, it is evidence that is of “greater weight or more convincing” than the opposing evidence. It effectively means the facts sought to be proved are “more probable than not.”

10. The ALJ determined that Kayser prevailed on the “most substantial issues,” including the requirement for an annual audit and the failure of the Association to maintain and provide complete records. Because these issues were central to the dispute, he was entitled to a reimbursement of his $2,000 filing fee.

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Part 3: Essay Questions

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

1. Statutory vs. Internal Governance: Analyze the differences between the Association’s violations of Arizona Revised Statutes (A.R.S.) and violations of its own By-Laws and CC&Rs. How did the ALJ distinguish between these different legal authorities in his decision?

2. The Role of Management Companies: Discuss the complexities of Association record-keeping as evidenced by the testimony of R & R Management and the “lost boxes” mentioned by the Board of Directors. What are the potential legal risks when an HOA delegates record-keeping to a third party?

3. Quorum and Notice Procedures: Evaluate the procedural confusion surrounding the November 2007 meetings. Contrast the requirements for a “regular meeting,” a “special meeting,” and a “Board of Directors meeting” as they apply to member rights and Association authority.

4. Burden of Proof in Administrative Hearings: Examine the Petitioner’s burden to prove allegations by a “preponderance of the evidence.” Which claims did the Petitioner fail to prove, and what specific evidence (or lack thereof) led to those failures?

5. Administrative Remedies and Limitations: Discuss the limits of the ALJ’s authority regarding the relief requested by the Petitioner. Why were specific directions and civil penalties denied despite the findings of certain violations?

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Part 4: Glossary of Key Terms

Definition

A.A.C.

Arizona Administrative Code; the rules governing administrative proceedings.

A.R.S.

Arizona Revised Statutes; the state laws cited as the basis for many of the legal obligations in the case.

Administrative Law Judge; the official presiding over the hearing and issuing the decision.

Annual Audit

A formal examination of the Association’s financial records, required by the By-Laws to be performed by an outside public accounting firm.

Declaration of Covenants, Conditions and Restrictions; the primary governing documents that define the rights and obligations of Community members and the Association.

Enabling Legislation

The specific statutes (A.R.S. § 41-2198.01 et seq.) that grant the Office of Administrative Hearings the power to hear HOA disputes.

Financial Compilation

The monthly process of organizing financial records, performed by R & R Management, which the ALJ distinguished from a formal annual audit.

Petitioner

The party who files the petition or complaint; in this case, William W. Kayser.

Preponderance of the Evidence

The legal standard of proof in civil and administrative cases, meaning the evidence is more convincing than the opposition’s.

Prevailing Party

The participant in a legal proceeding who “wins” on the most substantial issues and may be entitled to fee reimbursements.

Quorum

The minimum number of members or directors required to be present at a meeting to make the proceedings and decisions valid.

Respondent

The party against whom a petition or complaint is filed; in this case, Barclay Place Homeowners Association.

Special Meeting

A meeting called for a specific purpose that is not part of the regular meeting schedule, often requiring more formal notice to members.

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End of Study Guide






Blog Post – 08F-H088006-BFS


The $2,000 Paper Trail: 5 Surprising Lessons from One Homeowner’s Fight Against His HOA

Living in a Homeowners Association (HOA) often feels like navigating a shadow government where transparency is treated as a nuisance rather than a mandate. For many, the governing documents are a dense thicket of “shalls” and “musts” that only seem to apply to the residents, while the Board operates behind a veil of opacity.

The case of William Kayser vs. Barclay Place Homeowners Association serves as a definitive David-vs-Goliath narrative, proving that a single homeowner armed with the law can force an association into compliance. When Mr. Kayser challenged his HOA before the Arizona Office of Administrative Hearings, Administrative Law Judge (ALJ) Lewis D. Kowal issued a decision that pulled back the curtain on the hidden legal obligations of these organizations. Here are five surprising lessons from that $2,000 legal victory—lessons that every homeowner should memorize.

1. “Lost in Boxes” is Not a Legal Defense

One of the most persistent excuses used to dodge transparency is the claim that records have simply vanished during leadership transitions. In this case, Board member Jack Van Royen testified that a previous Association president had “boxed up documents” and the current leadership was unable to locate them.

As a matter of corporate governance, this is an unacceptable breach of fiduciary continuity. An HOA is a legal entity with a statutory mandate to maintain a historical record of its operations, regardless of who occupies the Board seats. Leadership changes do not reset the clock on these obligations. It was only after the legal pressure of a hearing that the Association suddenly promised to make a “concerted effort” to find the missing files—a clear admission that accountability only arrives when a judge is watching.

2. When an “Audit” Isn’t Actually an Audit

There is a massive distinction between internal financial “compilations” and a true independent audit. Kevin Young of R&R Management testified that his firm prepared monthly financial records and that a CPA, Andrew Carr, reviewed them. However, Young’s testimony was riddled with contradictions regarding whether Carr was an “in-house” accountant or a truly independent third party.

ALJ Kowal’s ruling sharpened the focus on Bylaws, Article VII, Section 8(d), which requires an annual audit to be performed by an “outside public accounting firm.” The Association’s attempt to blur the lines by presenting management-led compilations as a substitute for professional oversight was a failure of transparency. For homeowners, the lesson is clear: internal reviews by the very people managing the money are not a substitute for the procedural safeguards of an external audit.

3. The 10-Day Clock for Transparency

Under A.R.S. § 33-1805, Arizona associations have a strict 10-business-day window to provide requested documents to members. In this case, Mr. Kayser’s requests for bank statements and corporate records were met with delays and excuses.

Perhaps the most common stall tactic used by HOAs is the claim that financial records cannot be shared because they are “unapproved” by the Board. ALJ Kowal effectively dismantled this defense. The statutory right to inspect records is not contingent upon the Board’s final “stamp of approval.” Transparency laws are designed to grant members access to the raw data of their community’s operations, not just the sanitized versions the Board chooses to release.

4. Mailbox Postings Don’t Equal Legal Notice

A central dispute in this case involved a November 23, 2007 meeting where the Board acted to increase assessments. The Association claimed they satisfied notice requirements by posting announcements at the community mailboxes 48 hours in advance.

ALJ Kowal ruled this was legally insufficient. Because a previous meeting lacked a quorum, the November 23 gathering was classified as a “special meeting of members” under Bylaws, Article III, Section 3. This classification carries specific notice requirements that a mere mailbox posting cannot satisfy. Furthermore, the “scavenger hunt” nature of this meeting was highlighted by the fact that it was held at a Robb & Stucky conference room in Scottsdale, yet Mr. Kayser testified that the store had no record of the meeting and he saw no evidence of it occurring when he arrived. Strict adherence to notice procedures is a protection for the members, not a suggestion for the Board.

5. You Don’t Have to Win Every Count to Win the Case

The most significant takeaway for any homeowner considering legal action is the definition of a “prevailing party.” Numerically, Mr. Kayser lost a majority of his claims. For instance, the ALJ found the Association did not violate CC&R Article IV, Section 3 because the assessment increase remained under the 5% threshold that would have required a member vote.

However, ALJ Kowal ruled that winning on “substantial issues”—specifically the failure to conduct an outside audit and the failure to provide record access—outweighed the losses on minor technicalities. This is a critical distinction: you don’t need a perfect scorecard to hold your HOA accountable.

The court ordered the Association to reimburse that $2,000 fee within 40 days. This serves as a powerful deterrent against HOA non-compliance, proving that a Board’s refusal to follow its own Bylaws can be an expensive mistake.

Conclusion: The Power of Accountability

The Kayser vs. Barclay Place case proves that Bylaws and State Statutes are the bedrock of community governance, not mere “best practices” to be ignored when convenient. When a Board fails in its fiduciary duty to maintain records or follow notice procedures, it isn’t just a clerical error—it is a violation of the law.

Real accountability begins when homeowners demand the transparency they are legally owed. Your governing documents are your greatest weapon in ensuring your Association serves its members rather than its own interests.

Final Ponder Point: If you asked for your community’s last external audit tomorrow, would your board provide a report or an excuse?


Case Participants

Petitioner Side

  • William W. Kayser (Petitioner)
    Barclay Place Community
    Appeared on his own behalf

Respondent Side

  • Heather A. Fazio (Respondent Attorney)
    Doyle, Berman, Murdy, P.C.
  • Kevin Young (Property Manager/Witness)
    R & R Management Company
    Testified regarding financial records and association management
  • Denise Lehn (Accountant)
    R & R Management Company
    Oversees financials for the Association
  • Andrew Carr (CPA)
    Reviews and audits financial records monthly
  • Jack Van Royen (Board Member/Witness)
    Barclay Place Homeowners Association Board
  • Bonnie Braun (Board Member)
    Barclay Place Homeowners Association Board
    Present at Nov 23, 2007 meeting
  • Pamela Nicita (Board Member)
    Barclay Place Homeowners Association Board
    Present at Nov 23, 2007 meeting

Neutral Parties

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

Waugaman, Nancy -v- Troon Village Master Associaton

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Case Summary

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

Parties & Counsel

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

Alleged Violations

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

Outcome Summary

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

Key Issues & Findings

Failure to provide notice of executive session

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

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

Filing fee: $500.00, Fee refunded: Yes

Disposition: respondent_win

Improper subject matter for executive session

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

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

Filing fee: $500.00, Fee refunded: Yes

Disposition: respondent_win

Invalid interpretation of voting requirements

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

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

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Denial of records in workable format

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

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

Filing fee: $500.00, Fee refunded: Yes

Disposition: respondent_win

Decision Documents

07F-H067029-BFS Decision – 173903.pdf

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





Briefing Doc – 07F-H067029-BFS


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

Executive Summary

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

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

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

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Case Overview and Factual Background

Parties and Governance

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

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

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

The Disputed Board Resolution

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

Provision

Original Requirement (Section 11.02)

Board’s New Interpretation

Voting Threshold

80% of the total voting power in the Association.

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

Practical Impact

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

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

Post-Resolution Actions

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

• Elimination of “tract” voting.

• Elimination of fee assessments for “tracts.”

• Creation of staggered terms for Board members.

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Legal Analysis of Key Issues

1. Validity of the Executive Session

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

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

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

2. Authority to Interpret the Declaration

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

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

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

3. Ambiguity of Section 11.02

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

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

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

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

4. Practical Necessity vs. Contractual Reliance

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

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

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Secondary Issue: Mailing List Formats

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

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

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Final Order and Conclusions

The Administrative Law Judge issued the following orders:

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

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

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

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






Study Guide – 07F-H067029-BFS


Study Guide: Nancy Waugaman v. Troon Village Master Association

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

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Short-Answer Quiz

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

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

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

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

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

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

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

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

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

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

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

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Answer Key

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

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

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

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

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

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

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

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

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

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

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Essay Questions

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

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

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

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

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

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

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Glossary of Key Terms

Definition

A.R.S. §33-1804

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

A.R.S. §33-1805

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

Articles of Incorporation

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

Bylaws

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

Construe

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

Declaration (CC&Rs)

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

Executive Session

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

Interpret

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

Petitioner

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

Quorum

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

Respondent

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

Tract Voting

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

Vacate

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






Blog Post – 07F-H067029-BFS


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

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

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

Here are five crucial lessons from this landmark dispute.

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

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

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

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

2. The “Ambiguity” Trap and the Dictionary Shield

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

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

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

3. The Executive Session Shield: A Legal Blind Spot

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

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

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

4. Governing Documents are Contracts, Not Suggestions

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

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

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

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

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

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

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A Final Thought for the Modern Homeowner

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

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

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


Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

Deboer, Richard A. -v- Turtle Rock III Homeowners Association

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Case Summary

Case ID 07F-H067007-BFS
Agency DFBLS
Tribunal OAH
Decision Date 2007-01-23
Administrative Law Judge Daniel G. Martin
Outcome partial
Filing Fees Refunded $550.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Richard A. DeBoer Counsel —
Respondent Turtle Rock III Homeowners Association Counsel —

Alleged Violations

Declaration, Article X, Section 3
A.R.S. § 33-1805

Outcome Summary

The ALJ determined the Association properly adopted the amended Declaration with the requisite 75% vote, denying the Petitioner's challenge to the amendments. However, the ALJ ruled the Association violated A.R.S. § 33-1805 by withholding ballots and surveys, ordering their production. The Petitioner was not deemed the prevailing party for fee reimbursement purposes because he lost the more significant issue regarding the Declaration.

Why this result: Petitioner failed to prove the Association violated the Declaration or acted in bad faith regarding the amendments; the fee refund was denied because Petitioner did not prevail on the significant issue.

Key Issues & Findings

validity of amended Declaration

Petitioner alleged the Board improperly adopted amendments to the Declaration that fundamentally changed governance and operating structure.

Orders: Petition denied regarding the validity of the Declaration amendments.

Filing fee: $550.00, Fee refunded: No

Disposition: petitioner_loss

records request (ballots and surveys)

Association refused to produce ballots and surveys claiming confidentiality under A.R.S. § 16-624(A).

Orders: Association ordered to make ballots and surveys available for inspection and copying within thirty days.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_win

Audio Overview

Decision Documents

07F-H067007-BFS Decision – 160289.pdf

Uploaded 2026-01-25T15:19:21 (140.7 KB)





Briefing Doc – 07F-H067007-BFS


Administrative Law Judge Decision: DeBoer v. Turtle Rock III Homeowners Association

Executive Summary

This briefing document analyzes the administrative law decision in the matter of Richard A. DeBoer v. Turtle Rock III Homeowners Association (Case No. 07F-H067007-BFS). The case centers on a dispute regarding the amendment of a residential development’s governing documents and a member’s right to access association records.

The Administrative Law Judge (ALJ) addressed two primary allegations:

1. That the Association’s Board of Directors exceeded its authority and acted in bad faith during the adoption of a new Declaration of Covenants, Conditions, and Restrictions (the “Declaration”).

2. That the Association violated Arizona law (A.R.S. § 33-1805) by refusing to provide the petitioner with copies of ballots and survey forms related to the amendment process.

The ALJ concluded that the Association did not violate the Declaration or exceed its authority in the amendment process, as it followed the prescribed voting thresholds. However, the Association did violate state law by withholding records based on a misapplication of state election statutes. Consequently, the Association was ordered to produce the requested ballots and surveys, though the Petitioner was not deemed the prevailing party for the purpose of recovering filing fees.

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Background and Context

The Turtle Rock III subdivision, located in Phoenix, Arizona, consists of 76 lots and associated common areas. Responsibility for its maintenance is vested in the Turtle Rock III Homeowners Association (the “Association”).

In 2005, the Association’s Board formed an ad hoc committee to revise the Declaration, which was considered outdated. A primary driver for these revisions was a provision that required road repair assessments to be spent in the same year they were levied—a requirement that created financial hardship for the Association.

Timeline of Document Revision and Approval

• July–September 2005: Ad hoc committee reviews the Declaration and Association Bylaws.

• October 2005: Draft revisions are distributed to lot owners for comment via a one-page survey.

• November 2005: The Board receives 54 responses, which it characterizes as “disappointing” but sufficient to proceed with legal review.

• February–April 2006: The law firm Ekmark & Ekmark reviews and substantively modifies the drafts.

• June 9, 2006: Final documents and ballots are distributed to lot owners.

• July 2006: Voting concludes.

• August 31, 2006: The Association records the amended Declaration.

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Detailed Analysis of Core Themes

1. Validity of the Amendment Process

The Petitioner, Richard DeBoer, argued that the Board acted in bad faith and fundamentally changed the governance of the Association in its own favor. The ALJ rejected this argument, focusing on procedural compliance rather than the Petitioner’s substantive disagreements with the document’s content.

Legal Threshold for Amendment According to Article X, Section 3 of the original Declaration, amendments after the initial twenty-year period require an instrument signed by “not less than 75 percent of the lot owners.”

Voting Results The Association received 62 ballots out of a possible 76. The results were as follows:

Vote Type

Favoring Adoption

58 (one filed under protest)

Opposed

Total Ballots Received

Total Possible Lots

The ALJ determined that even after discounting the protest ballot, the 57 favoring votes met the 75% threshold required for passage. The Board was found to have kept owners apprised of activities and provided a full and fair opportunity for document review.

2. Access to Association Records

A significant portion of the dispute involved the Association’s refusal to provide the Petitioner with the actual ballots and surveys from the vote.

The Association’s Defense The Association withheld the documents on the grounds of confidentiality, specifically citing A.R.S. § 16-624(A). This statute requires that ballots from state and federal elections be kept unopened in a secure facility and eventually destroyed.

The ALJ’s Finding The ALJ ruled that the Association’s reliance on A.R.S. § 16-624(A) was misplaced. That statute applies only to elections conducted by the state or its political subdivisions, not to private balloting by a homeowners association. Instead, the Association was bound by A.R.S. § 33-1805, which states:

The ALJ found no legal authority supporting the Association’s decision to withhold the ballots and surveys.

3. Petitioner’s Substantive Concerns

While the ALJ ultimately ruled that the Petitioner’s concerns with the substance of the amendments were irrelevant to the legality of their adoption, the document records specific areas of disagreement. Mr. DeBoer “vehemently” disagreed with provisions including, but not limited to:

• The definitions of “common area,” “front landscape,” and “multiuse easement.”

• The Board’s authority to adopt rules, right of entry, and enforcement powers.

• Third-party rights to ingress and egress.

• Assessments for road repairs and architectural control.

• Restrictions on motorized vehicles, noise, and ownership.

The ALJ noted that while enforcement of these provisions might present future challenges, those challenges do not render the adoption process invalid.

——————————————————————————–

Conclusions of Law and Order

Legal Conclusions

1. Burden of Proof: The Petitioner bore the burden of proving violations by a preponderance of the evidence.

2. No Violation of Declaration: The Board followed Article X, Section 3 by obtaining the necessary 75% approval. The ALJ found no evidence of bad faith or exceeded authority.

3. Violation of A.R.S. § 33-1805: The Association unlawfully withheld records. Private HOA ballots are not exempt from member inspection under state election laws.

4. Prevailing Party Status: Under A.R.S. § 41-2198.02, a prevailing petitioner is entitled to a refund of the filing fee ($550.00). However, the ALJ determined that because the Petitioner lost on the “more significant” issue (the validity of the Declaration itself), he was not the prevailing party.

Final Order

The Administrative Law Judge issued the following orders:

• The Petitioner’s challenge to the validity of the amended Declaration was denied.

• The Petitioner’s challenge regarding the production of records was granted.

• Mandate: The Association was ordered to make the ballots and surveys from the vote available to the Petitioner for inspection and copying within thirty days of the order’s effective date (January 23, 2007).






Study Guide – 07F-H067007-BFS


Study Guide: DeBoer v. Turtle Rock III Homeowners Association

This study guide provides a comprehensive overview of the administrative hearing between Richard A. DeBoer and the Turtle Rock III Homeowners Association. It explores the legal disputes surrounding the amendment of community governing documents and the transparency requirements for association records.

Part I: Short-Answer Quiz

Instructions: Answer the following questions in 2–3 sentences, based strictly on the provided case text.

1. What primary issue led the Association’s Board of Directors to form an ad hoc committee to revise the Declaration in 2005? The Board formed the committee because the existing Declaration was outdated, specifically regarding road repair assessments. Under the original terms, assessments for road repairs had to be spent in the same year they were levied, which created a financial hardship due to the high cost of such repairs.

2. According to Article X, Section 3 of the Declaration, what is the specific requirement for amending the document after the first twenty-year period? After the initial twenty-year period, the Declaration may be amended by an instrument signed by no less than 75 percent of the lot owners. Additionally, any such amendment must be recorded with the county to be effective.

3. What were the three specific types of documents Mr. DeBoer requested from the Association in his October 19, 2006, letter? Mr. DeBoer requested copies of all ballots and retractions submitted for the approval of the Amended and Restated Declaration. He also requested all survey sheets submitted by members in response to the October 2005 Board letter and a copy of the current, approved Association Bylaws.

4. On what legal grounds did the Association initially refuse to produce the ballots and surveys to Mr. DeBoer? The Association argued that the ballots and surveys were confidential, relying on A.R.S. § 16-624(A), a state election statute. This statute requires election officers to keep ballot packages secure and unopened for a set period before destroying them.

5. Why did the Administrative Law Judge (ALJ) determine that A.R.S. § 16-624(A) was not applicable to this case? The ALJ found that the statute applies only to elections conducted by the state or its political subdivisions. It has no legal application to private balloting processes conducted by a homeowners association.

6. How did the ALJ address Mr. DeBoer’s concerns regarding the substance of the new amendments to the Declaration? The ALJ ruled that Mr. DeBoer’s disagreements with the content of the amendments were irrelevant to the legal determination of the case. The hearing’s purpose was to evaluate the validity of the adoption process, not the merits of the specific rules or definitions established by the amendments.

7. What was the role of the law firm Ekmark & Ekmark in the amendment process? The firm was hired to review the draft revisions to the Declaration, Bylaws, and Articles of Incorporation between February and April 2006. They recommended substantive modifications based on changes in law and phrasing, and later provided a legal opinion that the Association had acted lawfully during the voting process.

8. How did the Association inadvertently waive its attorney-client privilege regarding the August 17, 2006, letter from its legal counsel? Although the letter was marked “Attorney-Client Privileged,” the Association offered the document into evidence during the hearing. By voluntarily introducing the letter as evidence, the Association was deemed to have waived the privilege.

9. Why was Mr. DeBoer denied the reimbursement of his $550.00 filing fee despite winning one of the issues in his petition? The ALJ concluded that Mr. DeBoer was not the “prevailing party” because he did not succeed on the most significant issue: the challenge to the validity of the Declaration’s adoption. Because the Board’s authority and the amendment process were upheld, the Petitioner did not meet the statutory requirement for fee recovery.

10. What was the final order regarding the production of documents? The ALJ ordered the Association to make the ballots and surveys from the Declaration vote available to Mr. DeBoer for inspection and copying. The Association was given thirty days from the effective date of the Order to comply.

——————————————————————————–

Part II: Answer Key

1. Committee Formation: The Board addressed outdated provisions, specifically a hardship caused by the requirement that road repair assessments be spent in the same year they were collected.

2. Amendment Requirement: Amendments require signatures from at least 75 percent of the lot owners after the first 20 years and must be recorded.

3. Requested Documents: 1) Ballots/retractions for the 2006 Declaration; 2) Survey sheets from October 2005; 3) Current Association Bylaws.

4. Refusal Grounds: The Board claimed confidentiality under A.R.S. § 16-624(A), which governs the handling of state and local election ballots.

5. Statute Inapplicability: The ALJ found that the cited election statute is restricted to public political subdivisions and does not apply to private entities like an HOA.

6. Substance vs. Process: The ALJ determined that personal disagreement with the rules is irrelevant as long as the process of adoption followed the Declaration’s legal requirements.

7. Ekmark & Ekmark’s Role: They provided legal review, recommended changes based on current law, and later issued an opinion affirming the legality of the Board’s actions.

8. Waiver of Privilege: The Association waived the privilege by choosing to offer the confidential legal letter as evidence during the hearing.

9. Filing Fee: Fee reimbursement is reserved for the prevailing party; the ALJ ruled that losing the challenge to the Declaration’s adoption meant DeBoer did not prevail on the primary issue.

10. Final Order: The Association must allow Mr. DeBoer to inspect and copy the requested ballots and surveys within thirty days.

——————————————————————————–

Part III: Essay Questions

1. The Ethics of Transparency: Analyze the conflict between the Board’s claim of confidentiality and the requirements of A.R.S. § 33-1805. Discuss why the law prioritizes member access to records like ballots and surveys in the context of a self-governing community.

2. The Amendment Process: Detail the steps taken by the Turtle Rock III Board from 2005 to 2006 to amend the Declaration. Evaluate whether the Board’s efforts to solicit feedback and provide drafts met the standards of “good faith” as discussed in the ALJ’s findings.

3. Legal Interpretation of Statutes: Compare the Association’s interpretation of A.R.S. § 16-624(A) with the ALJ’s interpretation. Explain the importance of statutory context and how misapplying a public election law to a private association can impact member rights.

4. The Burden of Proof: In administrative hearings, the petitioner bears the burden of proof by a “preponderance of the evidence.” Using the DeBoer case as an example, explain what this standard means and why the Petitioner failed to meet it regarding the validity of the Declaration.

5. Authority and Governance: Discuss the ALJ’s assertion that “disagreement… does not render invalid the manner in which [amendments] were adopted.” How does this distinguish between the legislative power of an HOA Board and the judicial review of their procedures?

——————————————————————————–

Part IV: Glossary of Key Terms

Definition

A.R.S. § 33-1805

The Arizona statute requiring homeowners associations to make financial and other records reasonably available for examination by members.

Ad Hoc Committee

A temporary committee formed for a specific purpose; in this case, to study and suggest revisions to the subdivision’s Declaration.

Administrative Law Judge (ALJ)

An official who presides over hearings and renders decisions for independent state agencies, such as the Office of Administrative Hearings.

Articles of Incorporation

The legal document that establishes the existence of a corporation—in this case, the Homeowners Association.

Bylaws

The internal rules and regulations that govern the administration and management of the Homeowners Association.

Declaration (CC&Rs)

The Declaration of Covenants, Conditions and Restrictions; the primary governing document that outlines the rights and obligations of property owners within a subdivision.

Gravamen

The essence or most serious part of a legal complaint or accusation.

Instrument

A formal legal document, such as a signed ballot or a recorded amendment.

Preponderance of the Evidence

A legal standard of proof meaning that a contention is “more probably true than not.”

Prevailing Party

The party in a lawsuit that wins on the main issues, often entitling them to certain legal remedies or fee reimbursements.

Subdivision

A tract of land divided into individual lots; here referring to the seventy-six lots of Turtle Rock III.






Blog Post – 07F-H067007-BFS


Study Guide: DeBoer v. Turtle Rock III Homeowners Association

This study guide provides a comprehensive overview of the administrative hearing between Richard A. DeBoer and the Turtle Rock III Homeowners Association. It explores the legal disputes surrounding the amendment of community governing documents and the transparency requirements for association records.

Part I: Short-Answer Quiz

Instructions: Answer the following questions in 2–3 sentences, based strictly on the provided case text.

1. What primary issue led the Association’s Board of Directors to form an ad hoc committee to revise the Declaration in 2005? The Board formed the committee because the existing Declaration was outdated, specifically regarding road repair assessments. Under the original terms, assessments for road repairs had to be spent in the same year they were levied, which created a financial hardship due to the high cost of such repairs.

2. According to Article X, Section 3 of the Declaration, what is the specific requirement for amending the document after the first twenty-year period? After the initial twenty-year period, the Declaration may be amended by an instrument signed by no less than 75 percent of the lot owners. Additionally, any such amendment must be recorded with the county to be effective.

3. What were the three specific types of documents Mr. DeBoer requested from the Association in his October 19, 2006, letter? Mr. DeBoer requested copies of all ballots and retractions submitted for the approval of the Amended and Restated Declaration. He also requested all survey sheets submitted by members in response to the October 2005 Board letter and a copy of the current, approved Association Bylaws.

4. On what legal grounds did the Association initially refuse to produce the ballots and surveys to Mr. DeBoer? The Association argued that the ballots and surveys were confidential, relying on A.R.S. § 16-624(A), a state election statute. This statute requires election officers to keep ballot packages secure and unopened for a set period before destroying them.

5. Why did the Administrative Law Judge (ALJ) determine that A.R.S. § 16-624(A) was not applicable to this case? The ALJ found that the statute applies only to elections conducted by the state or its political subdivisions. It has no legal application to private balloting processes conducted by a homeowners association.

6. How did the ALJ address Mr. DeBoer’s concerns regarding the substance of the new amendments to the Declaration? The ALJ ruled that Mr. DeBoer’s disagreements with the content of the amendments were irrelevant to the legal determination of the case. The hearing’s purpose was to evaluate the validity of the adoption process, not the merits of the specific rules or definitions established by the amendments.

7. What was the role of the law firm Ekmark & Ekmark in the amendment process? The firm was hired to review the draft revisions to the Declaration, Bylaws, and Articles of Incorporation between February and April 2006. They recommended substantive modifications based on changes in law and phrasing, and later provided a legal opinion that the Association had acted lawfully during the voting process.

8. How did the Association inadvertently waive its attorney-client privilege regarding the August 17, 2006, letter from its legal counsel? Although the letter was marked “Attorney-Client Privileged,” the Association offered the document into evidence during the hearing. By voluntarily introducing the letter as evidence, the Association was deemed to have waived the privilege.

9. Why was Mr. DeBoer denied the reimbursement of his $550.00 filing fee despite winning one of the issues in his petition? The ALJ concluded that Mr. DeBoer was not the “prevailing party” because he did not succeed on the most significant issue: the challenge to the validity of the Declaration’s adoption. Because the Board’s authority and the amendment process were upheld, the Petitioner did not meet the statutory requirement for fee recovery.

10. What was the final order regarding the production of documents? The ALJ ordered the Association to make the ballots and surveys from the Declaration vote available to Mr. DeBoer for inspection and copying. The Association was given thirty days from the effective date of the Order to comply.

——————————————————————————–

Part II: Answer Key

1. Committee Formation: The Board addressed outdated provisions, specifically a hardship caused by the requirement that road repair assessments be spent in the same year they were collected.

2. Amendment Requirement: Amendments require signatures from at least 75 percent of the lot owners after the first 20 years and must be recorded.

3. Requested Documents: 1) Ballots/retractions for the 2006 Declaration; 2) Survey sheets from October 2005; 3) Current Association Bylaws.

4. Refusal Grounds: The Board claimed confidentiality under A.R.S. § 16-624(A), which governs the handling of state and local election ballots.

5. Statute Inapplicability: The ALJ found that the cited election statute is restricted to public political subdivisions and does not apply to private entities like an HOA.

6. Substance vs. Process: The ALJ determined that personal disagreement with the rules is irrelevant as long as the process of adoption followed the Declaration’s legal requirements.

7. Ekmark & Ekmark’s Role: They provided legal review, recommended changes based on current law, and later issued an opinion affirming the legality of the Board’s actions.

8. Waiver of Privilege: The Association waived the privilege by choosing to offer the confidential legal letter as evidence during the hearing.

9. Filing Fee: Fee reimbursement is reserved for the prevailing party; the ALJ ruled that losing the challenge to the Declaration’s adoption meant DeBoer did not prevail on the primary issue.

10. Final Order: The Association must allow Mr. DeBoer to inspect and copy the requested ballots and surveys within thirty days.

——————————————————————————–

Part III: Essay Questions

1. The Ethics of Transparency: Analyze the conflict between the Board’s claim of confidentiality and the requirements of A.R.S. § 33-1805. Discuss why the law prioritizes member access to records like ballots and surveys in the context of a self-governing community.

2. The Amendment Process: Detail the steps taken by the Turtle Rock III Board from 2005 to 2006 to amend the Declaration. Evaluate whether the Board’s efforts to solicit feedback and provide drafts met the standards of “good faith” as discussed in the ALJ’s findings.

3. Legal Interpretation of Statutes: Compare the Association’s interpretation of A.R.S. § 16-624(A) with the ALJ’s interpretation. Explain the importance of statutory context and how misapplying a public election law to a private association can impact member rights.

4. The Burden of Proof: In administrative hearings, the petitioner bears the burden of proof by a “preponderance of the evidence.” Using the DeBoer case as an example, explain what this standard means and why the Petitioner failed to meet it regarding the validity of the Declaration.

5. Authority and Governance: Discuss the ALJ’s assertion that “disagreement… does not render invalid the manner in which [amendments] were adopted.” How does this distinguish between the legislative power of an HOA Board and the judicial review of their procedures?

——————————————————————————–

Part IV: Glossary of Key Terms

Definition

A.R.S. § 33-1805

The Arizona statute requiring homeowners associations to make financial and other records reasonably available for examination by members.

Ad Hoc Committee

A temporary committee formed for a specific purpose; in this case, to study and suggest revisions to the subdivision’s Declaration.

Administrative Law Judge (ALJ)

An official who presides over hearings and renders decisions for independent state agencies, such as the Office of Administrative Hearings.

Articles of Incorporation

The legal document that establishes the existence of a corporation—in this case, the Homeowners Association.

Bylaws

The internal rules and regulations that govern the administration and management of the Homeowners Association.

Declaration (CC&Rs)

The Declaration of Covenants, Conditions and Restrictions; the primary governing document that outlines the rights and obligations of property owners within a subdivision.

Gravamen

The essence or most serious part of a legal complaint or accusation.

Instrument

A formal legal document, such as a signed ballot or a recorded amendment.

Preponderance of the Evidence

A legal standard of proof meaning that a contention is “more probably true than not.”

Prevailing Party

The party in a lawsuit that wins on the main issues, often entitling them to certain legal remedies or fee reimbursements.

Subdivision

A tract of land divided into individual lots; here referring to the seventy-six lots of Turtle Rock III.


Case Participants

Petitioner Side

  • Richard A. DeBoer (Petitioner)
    Lot 31 Owner
    Appeared on his own behalf

Respondent Side

  • Lynne Gustafson (Board member)
    Turtle Rock III Homeowners Association
    Corporate Secretary; appeared on behalf of Respondent; ad hoc committee member
  • Jim Scott (Board member)
    Turtle Rock III Homeowners Association
    Association President; ad hoc committee member
  • Ida Rouget (Board member)
    Turtle Rock III Homeowners Association
    Member At-Large; ad hoc committee member
  • Mert Force (Committee member)
    Turtle Rock III Homeowners Association
    Resident; ad hoc committee member
  • Herman Krehbiel (Committee member)
    Turtle Rock III Homeowners Association
    Resident; ad hoc committee member
  • Rose Magnifico (Committee member)
    Turtle Rock III Homeowners Association
    Resident; ad hoc committee member

Neutral Parties

  • Daniel G. Martin (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge
  • Robert Barger (Agency official)
    Department of Fire, Building and Life Safety
    Recipient of original decision transmission
  • Joyce Kesterman (Agency official)
    Department of Fire, Building and Life Safety
    Recipient of original decision transmission