Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
19F-H1918037-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2019-09-12
Administrative Law Judge
Jenna Clark
Outcome
full
Filing Fees Refunded
$500.00
Civil Penalties
$500.00
Parties & Counsel
Petitioner
Tom Barrs
Counsel
Jonathan A. Dessaules
Respondent
Desert Ranch Homeowners Association
Counsel
B. Austin Baillio
Alleged Violations
A.R.S. § 33-1805
Outcome Summary
The Administrative Law Judge concluded that the HOA violated ARIZ. REV. STAT. § 33-1805 by failing to provide the full requested documentation relating to EDC actions and communications. The Petitioner's request for relief was granted, resulting in the reimbursement of the $500 filing fee and the imposition of a $500 civil penalty against the HOA.
Key Issues & Findings
Whether Desert Ranch Homeowners Association (Respondent) violated A.R.S. § 33-1805 by failing to fulfill a records request.
The Association violated A.R.S. § 33-1805 by failing to fully comply with Petitioner's specific request for EDC records (submissions, requests, and approvals) by providing only a summary table instead of the totality of requested communications within the statutory deadline.
Orders: Petitioner's petition granted. Respondent ordered to reimburse Petitioner's $500.00 filing fee (ARIZ. REV. STAT. § 32-2199.01) and tender a $500.00 civil penalty to the Department (ARIZ. REV. STAT. § 32-2199.02(A)).
Briefing on Barrs v. Desert Ranch Homeowners Association
Executive Summary
This briefing synthesizes the legal proceedings and outcomes of case number 19F-H1918037-REL, a dispute between homeowner Tom Barrs (“Petitioner”) and the Desert Ranch Homeowners Association (“Respondent”). The core issue was the Association’s alleged violation of Arizona Revised Statutes (A.R.S.) § 33-1805 for failing to completely fulfill a records request submitted by the Petitioner on November 1, 2018.
An initial hearing on March 21, 2019, resulted in a decision in favor of the Association. Administrative Law Judge Jenna Clark found that the Petitioner had failed to properly submit his request to all members of the Association’s Board, and therefore the Association’s provision of a summary table did not constitute a statutory violation.
Following an appeal by the Petitioner, a rehearing was held on August 27, 2019. New evidence was introduced demonstrating that the Petitioner had previously been expressly instructed by the Association’s President to direct records requests specifically to the Environmental Design Committee (EDC) Chairman, Brian Schoeffler, a directive the Petitioner followed. Consequently, Judge Clark reversed the initial decision, concluding that the request was properly submitted and the Association’s failure to provide the full records—offering only a summary table—was a clear violation of A.R.S. § 33-1805. The final order granted the Petitioner’s petition, ordered the reimbursement of his $500 filing fee, and levied a $500 civil penalty against the Association.
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Case Overview
Parties Involved
Name/Entity
Key Individuals
Tom Barrs
Petitioner, Homeowner
Represented himself initially; later by Jonathan Dessaules, Esq.
Desert Ranch Homeowners Assoc.
Respondent, HOA
Governed by CC&Rs and a Board of Directors.
Brian Schoeffler
Witness for Respondent
Chairman of the Environmental Design Committee (EDC).
Jenna Clark
Administrative Law Judge
Presided over both the initial hearing and the rehearing.
Catherine Overby
Association President
Appointed Schoeffler as Petitioner’s primary records contact.
Lori Loch-Lee
VP, Associated Asset Management (AAM)
Recipient of records request; AAM acted as the Association’s accounting firm.
Core Legal Issue
The central question adjudicated was whether the Desert Ranch Homeowners Association violated A.R.S. § 33-1805 by failing to fulfill a records request. This statute requires that an association’s records be made “reasonably available for examination” and that a request for copies be fulfilled within ten business days.
Timeline of Key Events
July 19, 2017
Association President Catherine Overby appoints EDC Director Brian Schoeffler as Petitioner’s primary records contact.
November 1, 2018
Petitioner emails a records request to Schoeffler, Overby, and Lori Loch-Lee.
November 18, 2018
The Association provides a summary table of EDC actions, not the full records requested.
December 17, 2018
Petitioner files a formal petition against the Association with the Arizona Department of Real Estate.
March 6, 2019
Petitioner follows up via email, specifying the exact communications and documents he is seeking.
March 11, 2019
Schoeffler responds, asserting the request was fulfilled and directing Petitioner to submit a new one.
March 21, 2019
The first evidentiary hearing is held at the Office of Administrative Hearings (OAH).
April 10, 2019
The initial ALJ Decision is issued, denying the petition.
June 10, 2019
Petitioner submits a successful appeal to the Department.
August 27, 2019
A rehearing is held at the OAH.
September 12, 2019
The final ALJ Decision is issued, reversing the prior decision and ruling in favor of the Petitioner.
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Initial Hearing and Decision (No. 19F-H1918037-REL)
Petitioner’s Position (Tom Barrs)
• On November 1, 2018, Barrs requested “a copy of all EDC actions, written requests, and written approvals from October 2017 through October 2018.”
• The Association’s response on November 18, 2018, was a “summary table listing of some, not all, EDC actions,” which did not include the totality of communications requested.
• Barrs argued the Association willfully failed to comply, citing a similar previous dispute that required OAH adjudication.
• The dispute was clarified to be about the completeness of the response, not its timeliness.
Respondent’s Position (Desert Ranch HOA)
• Represented by Brian Schoeffler, the HOA argued it had fully, though untimelily, complied with the request.
• The core of the defense was that the request was improperly submitted because Barrs only sent it to two of the four Board members.
• Schoeffler reasoned that the Association’s response was guided by a prior OAH decision in a similar case that had been returned in the Association’s favor.
• Schoeffler also stated that fulfilling the more detailed request from March 6, 2019, could be interpreted as an “admission of guilt,” which is why he asked for a new request.
Initial Findings and Order (April 10, 2019)
• Key Finding: The Administrative Law Judge (ALJ) concluded that the Petitioner failed to properly submit his records request to all members of the Association’s Board.
• Legal Conclusion: “Because the credible evidence of record reflects that Petitioner failed to properly submit his records request to the Board, Petitioner has failed established by a preponderance of the evidence that the Association was in violation of ARIZ. REV. STAT. § 33-1805 for providing him with a summary table on November 18, 2018.”
• Order: The Petitioner’s petition was denied. His request for a civil penalty and reimbursement of his filing fee was also denied.
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Rehearing and Final Decision (No. 19F-H1918037-REL-RHG)
Basis for Rehearing
The Petitioner successfully appealed the initial decision, leading the Department of Real Estate to refer the matter back to the OAH for a new evidentiary hearing on the same issue.
New Evidence and Revised Testimony
• Petitioner’s New Evidence: Crucially, the Petitioner introduced evidence (Petitioner Exhibit 11) showing that on July 19, 2017, Association President Catherine Overby had appointed Brian Schoeffler as the Petitioner’s primary records request contact.
• Respondent’s Concession: The Association conceded that its governing documents do not require all Board members to be copied on records requests. It also conceded that its own bylaws regarding the submission of forms for records requests were not adhered to or enforced.
• Persistent Failure to Comply: It was established that as of the date of the rehearing (August 27, 2019), the Petitioner had still not received all of the documentation requested on November 1, 2018.
Final Findings and Order (September 12, 2019)
• Revised Key Finding: The ALJ found that the Petitioner’s request was not required to be sent to all Board members. Instead, the Petitioner had “expressly been instructed to only send his records requests to the Association’s EDC Chairman, Mr. Schoeffler, which he did.”
• Final Legal Conclusion: “Petitioner is correct that the Association did not fully comply with his specific request, and has established by a preponderance of the evidence that the summary table provided by the Association was a violation of ARIZ. REV. STAT. § 33-1805.”
• Final Order:
1. The Petitioner’s petition was granted.
2. The Respondent was ordered to reimburse the Petitioner’s $500.00 filing fee.
3. A civil penalty of $500.00 was levied against the Respondent, payable to the Department of Real Estate.
Key Judicial Quotes
On the Improper Submission Argument (First Decision): “Because the credible evidence of record reflects that Petitioner failed to properly submit his records request to the Board, Petitioner has failed established by a preponderance of the evidence that the Association was in violation of ARIZ. REV. STAT. § 33-1805…”
On the Proper Submission Argument (Final Decision): “Petitioner’s November 01, 2018, records request was not required to be sent to all members of the Association’s Board, as Petitioner had expressly been instructed to only send his records requests to the Association’s EDC Chairman, Mr. Schoeffler, which he did.”
On the Violation (Final Decision): “Petitioner is correct that the Association did not fully comply with his specific request, and has established by a preponderance of the evidence that the summary table provided by the Association was a violation of ARIZ. REV. STAT. § 33-1805.”
Study Guide – 19F-H1918037-REL-RHG
Study Guide: Barrs v. Desert Ranch Homeowners Association
This study guide provides a comprehensive review of the administrative legal case Tom Barrs v. Desert Ranch Homeowners Association, Docket No. 19F-H1918037-REL. It covers the initial hearing, the subsequent rehearing, the key arguments, the relevant statutes, and the final outcome of the dispute. The case centers on a homeowner’s records request and the association’s legal obligations under Arizona state law.
Short-Answer Quiz
Instructions: Answer the following questions in two to three sentences, drawing all information from the provided case documents.
1. Who are the Petitioner and Respondent in this case, and what is their relationship?
2. What was the central legal issue presented for adjudication at the Office of Administrative Hearings?
3. What specific records did the Petitioner, Tom Barrs, request from the Association on November 1, 2018?
4. What was the Association’s initial response to the Petitioner’s records request, and when was it provided?
5. What was the outcome of the first hearing on March 21, 2019, as detailed in the decision issued on April 10, 2019?
6. Why did the Administrative Law Judge initially rule in favor of the Respondent?
7. What new evidence presented at the rehearing on August 27, 2019, proved critical to reversing the initial decision?
8. According to Arizona Revised Statute § 33-1805, what is the time frame for an association to fulfill a request for examination or copies of records?
9. What was the final outcome of the case after the rehearing, as ordered on September 12, 2019?
10. What specific penalties and reimbursements were levied against the Respondent in the final order?
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Answer Key
1. The Petitioner is Tom Barrs, a property owner in the Desert Ranch subdivision and a member of its homeowners’ association. The Respondent is the Desert Ranch Homeowners Association (“the Association”), the governing body for the subdivision.
2. The central issue was whether the Desert Ranch Homeowners Association violated Arizona Revised Statute (A.R.S.) § 33-1805 by failing to properly and completely fulfill a records request submitted by the Petitioner.
3. The Petitioner requested a copy of all Environmental Design Committee (EDC) actions, written requests, and written approvals from October 2017 through October 2018. He later clarified this included communications like letters, emails, and application forms related to specific EDC decisions.
4. On November 18, 2018, the Association provided the Petitioner with a summary table listing some EDC actions. This response did not include the full scope of communications and underlying documents that the Petitioner had requested.
5. Following the first hearing, the Administrative Law Judge denied the Petitioner’s petition. The judge ruled that the Association’s conduct did not violate A.R.S. § 33-1805, denied the request for a civil penalty, and ordered that the Association did not have to reimburse the Petitioner’s filing fee.
6. The judge initially ruled for the Respondent because the evidence suggested the Petitioner had failed to properly submit his request to all members of the Association’s Board. This procedural error was seen as the reason the Association’s response (the summary table) was not a violation of the statute.
7. At the rehearing, evidence was introduced showing that on July 19, 2017, the Association’s President had explicitly appointed Brian Schoeffler, the EDC Chairman, as the Petitioner’s primary records request contact. This demonstrated that the Petitioner was not required to send his request to all Board members and had followed prior instructions correctly.
8. A.R.S. § 33-1805 states that an association has ten business days to fulfill a request for examination of records. It also specifies that the association has ten business days to provide copies of requested records upon request.
9. After the rehearing, the Administrative Law Judge granted the Petitioner’s petition. The judge concluded that the Association’s conduct did violate A.R.S. § 33-1805 by providing only a summary table instead of the full records requested.
10. In the final order, the Respondent was ordered to reimburse the Petitioner’s $500.00 filing fee. Additionally, a civil penalty of $500.00 was levied against the Respondent, payable to the Arizona Department of Real Estate.
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Essay Questions
Instructions: The following questions are designed to test a deeper, more analytical understanding of the case. Formulate a detailed response for each, synthesizing facts and arguments presented in the source documents.
1. Compare and contrast the findings of fact and conclusions of law from the first hearing (April 10, 2019 decision) with those from the rehearing (September 12, 2019 decision). What specific evidence or legal reasoning led to the reversal of the initial order?
2. Analyze the arguments presented by both the Petitioner, Tom Barrs, and the Respondent’s representative, Brian Schoeffler. Discuss the strengths and weaknesses of each party’s position across both hearings.
3. Explain the role and significance of Arizona Revised Statute § 33-1805 in this case. How did the interpretation of the Association’s obligations under this statute differ between the initial ruling and the final ruling?
4. Trace the timeline of events from the initial records request on November 1, 2018, to the final order on September 12, 2019. Highlight the key communications and procedural steps that influenced the case’s progression and ultimate outcome.
5. Discuss the legal standard of “preponderance of the evidence” as it is defined in the case documents. How did the Petitioner successfully meet this burden of proof in the rehearing after failing to do so in the initial hearing?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings, reviews evidence, makes findings of fact and conclusions of law, and issues orders. In this case, the ALJ was Jenna Clark.
A.R.S. § 33-1805
The section of the Arizona Revised Statutes that governs the rights of homeowners’ association members to access association records. It mandates that records be made “reasonably available for examination” and establishes a ten-business-day deadline for associations to fulfill such requests.
Associated Asset Management (AAM)
The management company that served as the Association’s accounting firm. Petitioner was at one point instructed to direct requests to an AAM representative.
Board of Directors (the Board)
The group that oversees the Desert Ranch Homeowners Association. The dispute involved questions about whether a records request needed to be sent to all members of the Board.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing documents for the Desert Ranch Homeowners Association.
Environmental Design Committee (EDC)
A committee within the Desert Ranch Homeowners Association, chaired by Brian Schoeffler. The records requested by the Petitioner pertained to the actions and decisions of this committee.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona responsible for conducting evidentiary hearings for disputes referred by other state agencies, such as the Department of Real Estate.
Petitioner
The party who files a petition initiating a legal action. In this case, Tom Barrs.
Preponderance of the evidence
The burden of proof in this case. It is defined as “proof as convinces the trier of fact that the contention is more probably true than not” and represents the “greater weight of the evidence.”
Respondent
The party against whom a petition is filed. In this case, the Desert Ranch Homeowners Association.
Blog Post – 19F-H1918037-REL-RHG
He Fought His HOA Over Public Records and Lost. Then One Old Email Changed Everything.
1.0 Introduction: The Familiar Frustration of Fighting the System
Almost everyone has a story about the maddening frustration of dealing with a bureaucratic organization. The rules can seem arbitrary, the answers vague, and the entire process engineered to make you give up. For homeowners, that organization is often their Homeowners Association (HOA). This was precisely the situation for Tom Barrs, a homeowner in Scottsdale, Arizona, when he made what seemed like a simple request for records from his HOA, the Desert Ranch Homeowners Association. His straightforward request ignited a surprising legal battle, where an initial, demoralizing defeat in court was ultimately overturned by a single, crucial piece of evidence exhumed from the past.
2.0 Takeaway 1: The First Verdict Isn’t Always the Final Word
The dispute began with a formal records request. In November 2018, Tom Barrs asked to see documents related to the HOA’s Environmental Design Committee (EDC). His request was clear, specific, and cited the relevant state law:
“Pursuant to ARS 33-1805, I am requesting a copy of all EDC actions, written requests, and written approvals from October 2017 through October 2018. Soft copies via return email are preferable; otherwise, please let me know when hard copies are available for pickup.”
The HOA refused to provide the records, and the case went before Administrative Law Judge Jenna Clark on March 21, 2019. The judge denied Mr. Barrs’s petition. The ruling was based on what seemed to be a fatal procedural error: the judge concluded that Mr. Barrs had failed to properly submit his request because he did not email it to all members of the Association’s Board.
Adding a potent dose of irony, the HOA’s representative at the hearing—Brian Schoeffler, the very EDC Chairman to whom Barrs had sent the request—successfully argued that a prior case meant Barrs “knew or should have known the requirements.” For many people, this initial loss, buttressed by the HOA weaponizing their past behavior against them, would have been the end of the road. But for Mr. Barrs, it was only the first chapter.
3.0 Takeaway 2: The Paper Trail is Your Most Powerful Weapon
Unwilling to accept the verdict, Mr. Barrs appealed and was granted a rehearing. The case was heard again before the very same judge, Jenna Clark. This time, however, Mr. Barrs had a new piece of evidence—a single, forgotten email that would force the judge to re-evaluate her own initial conclusion.
The case hinged on a communication from sixteen months prior. In July 2017, the Association’s President, Catherine Overby, had sent an email specifically appointing EDC Chairman Brian Schoeffler as Mr. Barrs’s “primary records request contact.”
This single document completely dismantled the HOA’s central argument. It proved that a specific, documented protocol existed that superseded any unwritten procedure the HOA later tried to enforce. Based on this prior instruction, Judge Clark’s new conclusion was decisive: Mr. Barrs was not required to send his request to the entire board. He had, in fact, followed the HOA’s own explicit directive perfectly. The HOA’s argument, built on chastising Mr. Barrs for not knowing the rules, crumbled under the weight of a rule they themselves had established and forgotten.
4.0 Takeaway 3: A “Summary” Isn’t the Same as “The Records”
Another key issue was the HOA’s attempt to control the information it released. Instead of providing the actual letters, emails, and applications Mr. Barrs had asked for, the HOA sent him a “summary table” of the EDC’s actions.
This defense initially worked. In the first ruling, Judge Clark concluded that because the request itself was improperly submitted, the summary table was not a violation of the statute. The HOA’s failure to provide the actual records was excused on a technicality.
But once the old email proved the request was valid, that technicality vanished and the summary table argument collapsed. In her final ruling, Judge Clark determined that providing a summary was a clear violation of Arizona law (ARIZ. REV. STAT. § 33-1805). The statute is unambiguous: records must be made “reasonably available for examination,” and copies must be provided upon request. The HOA’s attempt to substitute its interpretation of the records for the records themselves was not just unhelpful—it was illegal.
5.0 Takeaway 4: Resistance Can Be More Costly Than Compliance
The final, reversed decision was issued on September 12, 2019. Mr. Barrs’s petition was granted, and the HOA faced direct financial consequences for its stonewalling. The Desert Ranch HOA was ordered to:
• Reimburse Mr. Barrs’s $500.00 filing fee.
• Pay a separate $500.00 civil penalty to the Arizona Department of Real Estate.
For the price of a few photocopies, the HOA chose instead to pay for a protracted legal battle, a public loss, and $1,000 in fees and penalties—a steep cost for refusing transparency. The outcome is a stark reminder that an organization’s attempt to obstruct access to information can be far more damaging to its finances and reputation than simple compliance.
6.0 Conclusion: The Power of a Single Fact
The story of Tom Barrs’s dispute offers powerful, practical lessons for anyone facing a similar challenge. It highlights the importance of persistence, the legal weight of true transparency, and, above all, the critical power of documentation. One old email—one documented fact—was enough to level the playing field, force a judge to reverse her own decision, and ensure the rules were applied fairly. It leaves us with a compelling question to consider.
How might meticulous record-keeping change the outcome of a dispute in your own life?
Case Participants
Petitioner Side
Tom Barrs(petitioner/witness) Appeared on his own behalf initially; appeared as witness at rehearing
Jonathan Dessaules(attorney) Dessaules Law Group Appeared on behalf of Petitioner at rehearing
Respondent Side
Desert Ranch Homeowners Association(respondent)
Brian Schoeffler(EDC chairman/witness) Desert Ranch Homeowners Association Appeared on behalf of Respondent; Chairman of the Association’s EDC
Catherine Overby(HOA president) Desert Ranch Homeowners Association Association President; records request recipient
Lori Loch-Lee(VP Client Services) Associated Asset Management (AAM) Management company contact; records request recipient
The Administrative Law Judge concluded that the HOA violated ARIZ. REV. STAT. § 33-1805 by failing to provide the full requested documentation relating to EDC actions and communications. The Petitioner's request for relief was granted, resulting in the reimbursement of the $500 filing fee and the imposition of a $500 civil penalty against the HOA.
Key Issues & Findings
Whether Desert Ranch Homeowners Association (Respondent) violated A.R.S. § 33-1805 by failing to fulfill a records request.
The Association violated A.R.S. § 33-1805 by failing to fully comply with Petitioner's specific request for EDC records (submissions, requests, and approvals) by providing only a summary table instead of the totality of requested communications within the statutory deadline.
Orders: Petitioner's petition granted. Respondent ordered to reimburse Petitioner's $500.00 filing fee (ARIZ. REV. STAT. § 32-2199.01) and tender a $500.00 civil penalty to the Department (ARIZ. REV. STAT. § 32-2199.02(A)).
Topics: Records Request, HOA Violation, Civil Penalty, Filing Fee Reimbursement
Additional Citations:
ARIZ. REV. STAT. § 33-1805
ARIZ. REV. STAT. § 32-2199.01
ARIZ. REV. STAT. § 32-2199.02(A)
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092
ARIZ. ADMIN. CODE R2-19-119
ARIZ. REV. STAT. § 1-243
ARIZ. ADMIN. CODE R2-19-107
ARIZ. REV. STAT. § 33-1804
Video Overview
Audio Overview
Decision Documents
19F-H1918037-REL Decision – 700566.pdf
Uploaded 2025-10-09T03:33:55 (149.3 KB)
Briefing Doc – 19F-H1918037-REL
Briefing Document: Barrs v. Desert Ranch Homeowners Association (Case No. 19F-H1918037-REL)
Executive Summary
This briefing document synthesizes two Administrative Law Judge (ALJ) decisions concerning a records request dispute between homeowner Tom Barrs (Petitioner) and the Desert Ranch Homeowners Association (Respondent). The core of the dispute was the Association’s failure to fully comply with a request for records under Arizona Revised Statutes (A.R.S.) § 33-1805.
The case is notable for its complete reversal upon rehearing. An initial ruling on April 10, 2019, favored the Association, finding that the Petitioner had failed to properly submit his request by not emailing all Board members. However, this decision was overturned in a final, binding order on September 12, 2019. In the rehearing, the Petitioner presented new evidence demonstrating he was following the Association’s own prior written instructions for submitting such requests.
The ALJ ultimately concluded that the Association did violate A.R.S. § 33-1805 by providing only a summary document instead of making the full records available for examination. Consequently, the final order granted the Petitioner’s petition, mandated the full reimbursement of his $500 filing fee, and levied an additional $500 civil penalty against the Association. The case underscores the critical importance of procedural compliance and the weight of documented instructions in governing interactions between homeowners and their associations.
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I. Case Overview
• Parties:
◦ Petitioner: Tom Barrs, a property owner and member of the Association.
◦ Respondent: Desert Ranch Homeowners Association (“the Association”).
• Venue: Arizona Office of Administrative Hearings (OAH).
• Presiding Judge: Administrative Law Judge (ALJ) Jenna Clark.
• Core Allegation: Whether the Desert Ranch Homeowners Association violated A.R.S. § 33-1805 by failing to fulfill a records request submitted by the Petitioner.
• Case Numbers:
◦ 19F-H1918037-REL (Initial Decision)
◦ 19F-H1918037-REL-RHG (Rehearing Decision)
II. Chronology of the Dispute
Jul. 19, 2017
Association President Catherine Overby appoints Environmental Design Committee (EDC) Director Brian Schoeffler as the Petitioner’s primary contact for records requests.
Jul. 18, 2018
Ms. Overby instructs the Petitioner to direct all requests to the Association’s management company, Associated Asset Management (AAM), specifically to Lori Lock-Lee.
Nov. 1, 2018
Petitioner submits the records request at issue via email to Catherine Overby, Brian Schoeffler, and Lori Loch-Lee.
Nov. 2, 2018
Ms. Loch-Lee acknowledges the request, states she will forward it to all Board members, and clarifies that AAM is only the Association’s accounting firm.
Nov. 18, 2018
Mr. Schoeffler responds on behalf of the Association, providing a summary table of EDC actions but not the full records. He also advises the Petitioner that all Board members must be copied on future requests.
Dec. 17, 2018
Petitioner files a single-issue petition against the Association with the Arizona Department of Real Estate, paying a $500 fee.
Mar. 6, 2019
Petitioner sends a follow-up email specifying the exact documents he is seeking, referencing items listed in the summary table he received.
Mar. 11, 2019
Mr. Schoeffler replies, asserting the request was already fulfilled and instructing the Petitioner to submit a new request for the additional items.
Mar. 17, 2019
Mr. Schoeffler emails again, claiming the original request was improperly submitted to only two of four Board members and that providing more documents could be seen as an “admission of guilt.”
Mar. 21, 2019
The first evidentiary hearing is held at the OAH.
Apr. 10, 2019
The initial ALJ Decision is issued, denying the Petitioner’s petition.
Jun. 10, 2019
Petitioner submits an appeal to the Department, which is granted.
Aug. 27, 2019
A rehearing is held at the OAH.
Sep. 12, 2019
The final ALJ Decision is issued, reversing the initial ruling and granting the Petitioner’s petition.
III. The Records Request and Response
Petitioner’s Request (November 1, 2018)
The Petitioner submitted a clear and direct request for specific records via email, citing the relevant statute:
“Pursuant to ARS 33-1805, I am requesting a copy of all EDC actions, written requests, and written approvals from October 2017 through October 2018. Soft copies via return email are preferable; otherwise, please let me know when hard copies are available for pickup.”
Association’s Response (November 18, 2018)
The Association did not provide the requested documents (e.g., letters, emails, applications). Instead, it provided a “summary table listing of some, not all, EDC actions.” As of the August 27, 2019, rehearing, the Petitioner had still not received the full documentation he originally requested.
Petitioner’s Clarification (March 6, 2019)
In an attempt to resolve the issue, the Petitioner sent a detailed follow-up email outlining the specific missing records by referencing the line items in the Association’s own summary table. This demonstrated that his request was not for a vague “list of actions” but for the underlying correspondence. This included requests for:
• Copies of violation notices and “Full Compliance” correspondence.
• Complaint correspondence from homeowners regarding shrubs and subsequent citations.
• Submittal correspondence for a project from Mr. Schoeffler himself, along with approvals.
• Original submittals and approvals for a garage remodel and septic install.
IV. Analysis of the Two Administrative Rulings
The opposite outcomes of the two hearings hinged entirely on the validity of the Petitioner’s original email submission.
A. Initial ALJ Decision (April 10, 2019) – In Favor of Respondent (HOA)
• Central Finding: The Petitioner failed to properly submit his records request because he sent it to only two Board members, not the entire Board.
• Reasoning: The ALJ concluded that because the request was improperly submitted, the Association was not obligated to fulfill it under A.R.S. § 33-1805. Therefore, its failure to provide the full records did not constitute a violation. The decision noted, “Because the credible evidence of record reflects that Petitioner failed to properly submit his records request to the Board, Petitioner has failed established by a preponderance of the evidence that the Association was in violation…”
• Outcome: The petition was denied. The Association was not required to reimburse the Petitioner’s filing fee, and his request for a civil penalty was denied.
B. Rehearing ALJ Decision (September 12, 2019) – In Favor of Petitioner (Barrs)
• Central Finding: The Petitioner did properly submit his records request by emailing the designated contacts.
• Key New Evidence: The Petitioner introduced two exhibits proving he had received explicit instructions from the Association President on where to direct his requests:
1. A July 19, 2017 communication appointing EDC Chairman Brian Schoeffler as his primary records request contact.
2. A July 18, 2018 communication instructing him to direct requests to the management company (AAM).
• Reasoning: The ALJ found this evidence dispositive, stating, “Petitioner’s November 01, 2018, records request was not required to be sent to all members of the Association’s Board, as Petitioner had expressly been instructed to only send his records requests to the Association’s EDC Chairman, Mr. Schoeffler, which he did.” With the submission deemed proper, the focus shifted to the response. The ALJ concluded that providing a summary table was not compliant with the statute’s requirement to make records “reasonably available for examination.”
• Outcome: The initial decision was reversed, and the Petitioner’s petition was granted.
V. Key Arguments and Testimonies
• Petitioner (Tom Barrs):
◦ Argued his dispute was with the adequacy of the Association’s response, not its timeliness.
◦ Alleged the Association acted in bad faith and willfully withheld records, citing a previous OAH adjudication over a similar request.
◦ Successfully demonstrated he had followed the Association’s own prior instructions for submitting requests.
• Respondent (via Brian Schoeffler):
◦ Maintained that the request was invalid because it was not sent to all four Board members, an argument that collapsed during the rehearing.
◦ Admitted the Association’s governing documents do not contain a requirement that all Board members be copied on records requests.
◦ Justified the incomplete response by stating that providing additional documents after the petition was filed could be “interpreted as an admission of guilt.”
◦ Reasoned that the Association acted as it did because a previous, similar dispute had been decided in its favor.
VI. Final Order and Penalties
The binding order issued on September 12, 2019, following the rehearing, mandated the following:
1. Petition Granted: The Petitioner’s petition was granted in its entirety.
2. Filing Fee Reimbursement: The Association was ordered to reimburse the Petitioner’s $500 filing fee.
3. Civil Penalty: The Association was ordered to pay a civil penalty of $500 to the Arizona Department of Real Estate for its violation of A.R.S. § 33-1805.
Study Guide – 19F-H1918037-REL
Study Guide: Barrs v. Desert Ranch Homeowners Association
This guide provides a comprehensive review of the administrative legal case between petitioner Tom Barrs and respondent Desert Ranch Homeowners Association, covering the initial hearing and the subsequent rehearing. It includes a quiz to test factual recall, essay questions for deeper analysis, and a glossary of key terms.
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Short-Answer Quiz
Instructions: Answer the following questions in 2-3 complete sentences based on the provided source documents.
1. Who are the primary parties in this legal dispute, and what are their respective roles?
2. What specific Arizona Revised Statute was the Desert Ranch Homeowners Association accused of violating, and what does this statute generally require?
3. What was the exact nature of the records request Tom Barrs submitted on November 1, 2018?
4. In the initial hearing, what was the key reason the Administrative Law Judge ruled in favor of the Association?
5. What was the Association’s initial response to Barrs’ records request, and why did Barrs consider it incomplete?
6. Upon what grounds was a rehearing of the case granted?
7. What crucial new evidence presented at the rehearing changed the outcome of the case?
8. How did the Association’s own bylaws and concessions during the rehearing weaken its defense?
9. What was the final ruling in the Administrative Law Judge’s decision after the rehearing?
10. What financial penalties were imposed on the Desert Ranch Homeowners Association in the final order?
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Answer Key
1. The primary parties are Tom Barrs, the Petitioner, and the Desert Ranch Homeowners Association, the Respondent. Barrs, a homeowner and member of the Association, filed a petition alleging the Association failed to comply with a records request. The Association, represented in the hearings by Brian Schoeffler, defended its actions against this claim.
2. The Association was accused of violating A.R.S. § 33-1805. This statute requires a homeowners’ association to make its financial and other records reasonably available for examination by a member within ten business days of a request. It also allows the association to charge a fee of not more than fifteen cents per page for copies.
3. On November 1, 2018, Tom Barrs requested “a copy of all EDC actions, written requests, and written approvals from October 2017 through October 2018.” He specified that electronic copies were preferable but that he was also willing to pick up hard copies.
4. In the initial hearing, the judge ruled for the Association because the evidence indicated Barrs had failed to properly submit his request to all members of the Association’s Board. This procedural error meant Barrs failed to establish by a preponderance of the evidence that the Association was in violation of the statute.
5. The Association responded on November 18, 2018, by providing Barrs with a summary table of Environmental Design Committee (EDC) actions. Barrs considered this incomplete because his request was for the underlying communications, including all written requests and approvals, not just a summary list of actions.
6. A rehearing was granted after Petitioner Tom Barrs submitted an appeal to the Arizona Department of Real Estate on June 10, 2019. The Department granted the appeal and referred the matter back to the Office of Administrative Hearings for a new evidentiary hearing.
7. The crucial new evidence showed that the Association’s President had previously appointed Brian Schoeffler as Barrs’ primary contact for records requests. This evidence demonstrated that Barrs had, in fact, followed the specific instructions given to him and was not required to send his request to all board members, directly contradicting the basis for the initial ruling.
8. The Association conceded that its governing documents do not require members to copy all Board members on records requests. It also admitted that its own bylaws regarding the submission of forms for such requests were not adhered to or enforced, which undermined its argument that Barrs had failed to follow proper procedure.
9. The final ruling, issued September 12, 2019, granted the Petitioner’s petition. The Administrative Law Judge concluded that the Association’s conduct violated A.R.S. § 33-1805 because it did not fully comply with Barrs’ specific and properly submitted request.
10. The Association was ordered to reimburse Petitioner Tom Barrs’ $500.00 filing fee. Additionally, a civil penalty of $500.00 was levied against the Association, payable to the Arizona Department of Real Estate.
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Essay Questions
Instructions: The following questions are designed for longer, essay-format answers that require critical thinking and synthesis of information from the case documents. Answers are not provided.
1. Compare and contrast the Findings of Fact and Conclusions of Law in the initial decision (April 10, 2019) with those in the rehearing decision (September 12, 2019). Analyze how specific factual clarifications led to a complete reversal of the legal conclusion.
2. Explain the legal standard of “preponderance of the evidence” as defined in the decisions. Detail why the petitioner initially failed to meet this burden and what specific evidence allowed him to successfully meet it in the rehearing.
3. Analyze the testimony and arguments presented by Brian Schoeffler on behalf of the Association across both hearings. Discuss the consistency of his defense, his reasoning based on prior OAH decisions, and his stated fear that providing more documents could be interpreted as an “admission of guilt.”
4. Trace the complete procedural timeline of case No. 19F-H1918037-REL, from the filing of the initial petition on December 17, 2018, to the final, binding order on September 12, 2019. Highlight the roles of the Arizona Department of Real Estate and the Office of Administrative Hearings (OAH).
5. Using the details of this case, write an analysis of the function and importance of A.R.S. § 33-1805 in regulating the relationship between a homeowner and a homeowners’ association. Discuss the statute’s requirements for both parties and the consequences of non-compliance.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent, impartial judge who presides over administrative hearings at government agencies like the Office of Administrative Hearings. In this case, the ALJ was Jenna Clark.
A.R.S. § 33-1805
The section of the Arizona Revised Statutes that governs a homeowner’s right to access the records of a homeowners’ association. It mandates that an association must make records available for examination within ten business days of a request.
Associated Asset Management (AAM)
The management company that served as the accounting firm for the Desert Ranch Homeowners Association. Petitioner was instructed at one point to direct requests to Lori Lock-Lee at AAM.
Board of Directors (the Board)
The governing body that oversees the operations of the Desert Ranch Homeowners Association.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing legal documents that set up the rules for a planned community or subdivision. The Desert Ranch HOA is governed by its CC&Rs.
Environmental Design Committee (EDC)
A committee within the Desert Ranch Homeowners Association responsible for reviewing and approving architectural and landscaping changes. Brian Schoeffler was the Chairman of the EDC.
Petitioner
The party who files a petition to initiate a legal proceeding. In this case, Tom Barrs is the Petitioner.
Preponderance of the evidence
The standard of proof in this civil administrative case. It is defined as evidence that is more convincing and has superior weight, inclining a fair mind to one side of the issue over the other.
Rehearing
A second hearing of a case, granted upon appeal, to re-examine the issues and evidence. The rehearing in this case took place on August 27, 2019, and resulted in the reversal of the initial decision.
Respondent
The party against whom a petition is filed. In this case, the Desert Ranch Homeowners Association is the Respondent.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona that conducts evidentiary hearings for other state agencies, providing a neutral forum for resolving disputes like the one between Barrs and the Association.
Blog Post – 19F-H1918037-REL
Briefing Document: Barrs v. Desert Ranch Homeowners Association (Case No. 19F-H1918037-REL)
Executive Summary
This briefing document synthesizes two Administrative Law Judge (ALJ) decisions concerning a records request dispute between homeowner Tom Barrs (Petitioner) and the Desert Ranch Homeowners Association (Respondent). The core of the dispute was the Association’s failure to fully comply with a request for records under Arizona Revised Statutes (A.R.S.) § 33-1805.
The case is notable for its complete reversal upon rehearing. An initial ruling on April 10, 2019, favored the Association, finding that the Petitioner had failed to properly submit his request by not emailing all Board members. However, this decision was overturned in a final, binding order on September 12, 2019. In the rehearing, the Petitioner presented new evidence demonstrating he was following the Association’s own prior written instructions for submitting such requests.
The ALJ ultimately concluded that the Association did violate A.R.S. § 33-1805 by providing only a summary document instead of making the full records available for examination. Consequently, the final order granted the Petitioner’s petition, mandated the full reimbursement of his $500 filing fee, and levied an additional $500 civil penalty against the Association. The case underscores the critical importance of procedural compliance and the weight of documented instructions in governing interactions between homeowners and their associations.
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I. Case Overview
• Parties:
◦ Petitioner: Tom Barrs, a property owner and member of the Association.
◦ Respondent: Desert Ranch Homeowners Association (“the Association”).
• Venue: Arizona Office of Administrative Hearings (OAH).
• Presiding Judge: Administrative Law Judge (ALJ) Jenna Clark.
• Core Allegation: Whether the Desert Ranch Homeowners Association violated A.R.S. § 33-1805 by failing to fulfill a records request submitted by the Petitioner.
• Case Numbers:
◦ 19F-H1918037-REL (Initial Decision)
◦ 19F-H1918037-REL-RHG (Rehearing Decision)
II. Chronology of the Dispute
Jul. 19, 2017
Association President Catherine Overby appoints Environmental Design Committee (EDC) Director Brian Schoeffler as the Petitioner’s primary contact for records requests.
Jul. 18, 2018
Ms. Overby instructs the Petitioner to direct all requests to the Association’s management company, Associated Asset Management (AAM), specifically to Lori Lock-Lee.
Nov. 1, 2018
Petitioner submits the records request at issue via email to Catherine Overby, Brian Schoeffler, and Lori Loch-Lee.
Nov. 2, 2018
Ms. Loch-Lee acknowledges the request, states she will forward it to all Board members, and clarifies that AAM is only the Association’s accounting firm.
Nov. 18, 2018
Mr. Schoeffler responds on behalf of the Association, providing a summary table of EDC actions but not the full records. He also advises the Petitioner that all Board members must be copied on future requests.
Dec. 17, 2018
Petitioner files a single-issue petition against the Association with the Arizona Department of Real Estate, paying a $500 fee.
Mar. 6, 2019
Petitioner sends a follow-up email specifying the exact documents he is seeking, referencing items listed in the summary table he received.
Mar. 11, 2019
Mr. Schoeffler replies, asserting the request was already fulfilled and instructing the Petitioner to submit a new request for the additional items.
Mar. 17, 2019
Mr. Schoeffler emails again, claiming the original request was improperly submitted to only two of four Board members and that providing more documents could be seen as an “admission of guilt.”
Mar. 21, 2019
The first evidentiary hearing is held at the OAH.
Apr. 10, 2019
The initial ALJ Decision is issued, denying the Petitioner’s petition.
Jun. 10, 2019
Petitioner submits an appeal to the Department, which is granted.
Aug. 27, 2019
A rehearing is held at the OAH.
Sep. 12, 2019
The final ALJ Decision is issued, reversing the initial ruling and granting the Petitioner’s petition.
III. The Records Request and Response
Petitioner’s Request (November 1, 2018)
The Petitioner submitted a clear and direct request for specific records via email, citing the relevant statute:
“Pursuant to ARS 33-1805, I am requesting a copy of all EDC actions, written requests, and written approvals from October 2017 through October 2018. Soft copies via return email are preferable; otherwise, please let me know when hard copies are available for pickup.”
Association’s Response (November 18, 2018)
The Association did not provide the requested documents (e.g., letters, emails, applications). Instead, it provided a “summary table listing of some, not all, EDC actions.” As of the August 27, 2019, rehearing, the Petitioner had still not received the full documentation he originally requested.
Petitioner’s Clarification (March 6, 2019)
In an attempt to resolve the issue, the Petitioner sent a detailed follow-up email outlining the specific missing records by referencing the line items in the Association’s own summary table. This demonstrated that his request was not for a vague “list of actions” but for the underlying correspondence. This included requests for:
• Copies of violation notices and “Full Compliance” correspondence.
• Complaint correspondence from homeowners regarding shrubs and subsequent citations.
• Submittal correspondence for a project from Mr. Schoeffler himself, along with approvals.
• Original submittals and approvals for a garage remodel and septic install.
IV. Analysis of the Two Administrative Rulings
The opposite outcomes of the two hearings hinged entirely on the validity of the Petitioner’s original email submission.
A. Initial ALJ Decision (April 10, 2019) – In Favor of Respondent (HOA)
• Central Finding: The Petitioner failed to properly submit his records request because he sent it to only two Board members, not the entire Board.
• Reasoning: The ALJ concluded that because the request was improperly submitted, the Association was not obligated to fulfill it under A.R.S. § 33-1805. Therefore, its failure to provide the full records did not constitute a violation. The decision noted, “Because the credible evidence of record reflects that Petitioner failed to properly submit his records request to the Board, Petitioner has failed established by a preponderance of the evidence that the Association was in violation…”
• Outcome: The petition was denied. The Association was not required to reimburse the Petitioner’s filing fee, and his request for a civil penalty was denied.
B. Rehearing ALJ Decision (September 12, 2019) – In Favor of Petitioner (Barrs)
• Central Finding: The Petitioner did properly submit his records request by emailing the designated contacts.
• Key New Evidence: The Petitioner introduced two exhibits proving he had received explicit instructions from the Association President on where to direct his requests:
1. A July 19, 2017 communication appointing EDC Chairman Brian Schoeffler as his primary records request contact.
2. A July 18, 2018 communication instructing him to direct requests to the management company (AAM).
• Reasoning: The ALJ found this evidence dispositive, stating, “Petitioner’s November 01, 2018, records request was not required to be sent to all members of the Association’s Board, as Petitioner had expressly been instructed to only send his records requests to the Association’s EDC Chairman, Mr. Schoeffler, which he did.” With the submission deemed proper, the focus shifted to the response. The ALJ concluded that providing a summary table was not compliant with the statute’s requirement to make records “reasonably available for examination.”
• Outcome: The initial decision was reversed, and the Petitioner’s petition was granted.
V. Key Arguments and Testimonies
• Petitioner (Tom Barrs):
◦ Argued his dispute was with the adequacy of the Association’s response, not its timeliness.
◦ Alleged the Association acted in bad faith and willfully withheld records, citing a previous OAH adjudication over a similar request.
◦ Successfully demonstrated he had followed the Association’s own prior instructions for submitting requests.
• Respondent (via Brian Schoeffler):
◦ Maintained that the request was invalid because it was not sent to all four Board members, an argument that collapsed during the rehearing.
◦ Admitted the Association’s governing documents do not contain a requirement that all Board members be copied on records requests.
◦ Justified the incomplete response by stating that providing additional documents after the petition was filed could be “interpreted as an admission of guilt.”
◦ Reasoned that the Association acted as it did because a previous, similar dispute had been decided in its favor.
VI. Final Order and Penalties
The binding order issued on September 12, 2019, following the rehearing, mandated the following:
1. Petition Granted: The Petitioner’s petition was granted in its entirety.
2. Filing Fee Reimbursement: The Association was ordered to reimburse the Petitioner’s $500 filing fee.
3. Civil Penalty: The Association was ordered to pay a civil penalty of $500 to the Arizona Department of Real Estate for its violation of A.R.S. § 33-1805.
Case Participants
Petitioner Side
Tom Barrs(petitioner) Appeared on his own behalf in the initial hearing; appeared as a witness in the rehearing.
Jonathan Dessaules(petitioner attorney) Dessaules Law Group Appeared on behalf of Petitioner in the rehearing.
Respondent Side
Brian Schoeffler(respondent representative / EDC chairman / witness) Desert Ranch Homeowners Association Also identified as a Board Director.
Catherine Overby(HOA president / board member) Desert Ranch Homeowners Association Appointed Mr. Schoeffler as Petitioner’s primary records request contact.
Lori Loch-Lee(property manager) Associated Asset Management (AAM) Vice President of Client Services.
Amanda Shaw(property manager) AAM LLC Contact for Respondent.
B. Austin Baillio(HOA attorney) Maxwell & Morgan, P.C. Received electronic transmission of the rehearing decision.
Neutral Parties
Jenna Clark(ALJ) OAH
Judy Lowe(Commissioner) ADRE
Dan Gardner(ADRE staff) ADRE HOA Coordinator.
Other Participants
Gerard Manieri(observer) Listed as 'G. Mangiero' in initial hearing source.
The Administrative Law Judge concluded that the HOA violated ARIZ. REV. STAT. § 33-1805 by failing to provide the full requested documentation relating to EDC actions and communications. The Petitioner's request for relief was granted, resulting in the reimbursement of the $500 filing fee and the imposition of a $500 civil penalty against the HOA.
Key Issues & Findings
Whether Desert Ranch Homeowners Association (Respondent) violated A.R.S. § 33-1805 by failing to fulfill a records request.
The Association violated A.R.S. § 33-1805 by failing to fully comply with Petitioner's specific request for EDC records (submissions, requests, and approvals) by providing only a summary table instead of the totality of requested communications within the statutory deadline.
Orders: Petitioner's petition granted. Respondent ordered to reimburse Petitioner's $500.00 filing fee (ARIZ. REV. STAT. § 32-2199.01) and tender a $500.00 civil penalty to the Department (ARIZ. REV. STAT. § 32-2199.02(A)).
Topics: Records Request, HOA Violation, Civil Penalty, Filing Fee Reimbursement
Additional Citations:
ARIZ. REV. STAT. § 33-1805
ARIZ. REV. STAT. § 32-2199.01
ARIZ. REV. STAT. § 32-2199.02(A)
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092
ARIZ. ADMIN. CODE R2-19-119
ARIZ. REV. STAT. § 1-243
ARIZ. ADMIN. CODE R2-19-107
ARIZ. REV. STAT. § 33-1804
Audio Overview
Decision Documents
19F-H1918037-REL Decision – 700566.pdf
Uploaded 2025-10-08T07:08:27 (149.3 KB)
Briefing Doc – 19F-H1918037-REL
Briefing Document: Barrs v. Desert Ranch Homeowners Association
Executive Summary
This document synthesizes the findings from two Administrative Law Judge (ALJ) Decisions concerning a records request dispute between homeowner Tom Barrs (Petitioner) and the Desert Ranch Homeowners Association (Respondent). The central issue was whether the Association violated Arizona Revised Statute (A.R.S.) § 33-1805 by failing to adequately fulfill a records request submitted by the Petitioner on November 1, 2018.
The initial hearing on March 21, 2019, resulted in an April 10, 2019, decision in favor of the Association. The ALJ concluded that the Petitioner had failed to properly submit his request to all members of the Association’s Board, and thus the Association’s partial response (a summary table) did not constitute a statutory violation.
Following a successful appeal by the Petitioner, a rehearing was held on August 27, 2019. New evidence demonstrated that the Petitioner had followed prior express instructions from the Association regarding who to contact for records requests. Consequently, the ALJ issued a new decision on September 12, 2019, reversing the original order. The final ruling found the Association in violation of A.R.S. § 33-1805. The Association was ordered to reimburse the Petitioner’s $500 filing fee and was assessed a civil penalty of $500.
Whether the Association violated A.R.S. § 33-1805 by failing to fulfill a records request for Environmental Design Committee (EDC) actions, requests, and approvals.
Initial Petition
Filed by Tom Barrs on December 17, 2018.
Initial Hearing
March 21, 2019, before ALJ Jenna Clark.
Rehearing
August 27, 2019, before ALJ Jenna Clark.
Final Outcome
Petition granted in favor of Tom Barrs. The Association was found in violation of state law, ordered to reimburse the filing fee, and fined.
Key Individuals and Entities
Role / Affiliation
Tom Barrs
Petitioner; homeowner in the Desert Ranch subdivision.
Desert Ranch HOA
Respondent; homeowners’ association.
Jenna Clark
Administrative Law Judge, Office of Administrative Hearings.
Brian Schoeffler
Chairman of the Association’s Environmental Design Committee (EDC); appeared on behalf of the Association.
Catherine Overby
President of the Association’s Board of Directors.
Lori Loch-Lee
Vice President of Client Services at Associated Asset Management (AAM), the Association’s accounting/management company.
Jonathan Dessaules, Esq.
Attorney who appeared on behalf of the Petitioner at the rehearing.
The Records Request and Subsequent Dispute
The Initial Request
On November 1, 2018, at 9:40 p.m., Petitioner submitted an electronic records request to Catherine Overby, Brian Schoeffler, and Lori Loch-Lee. The text of the request was as follows:
“Pursuant to ARS 33-1805, I am requesting a copy of all EDC actions, written requests, and written approvals from October 2017 through October 2018. Soft copies via return email are preferable; otherwise, please let me know when hard copies are available for pickup.”
The Association’s Response and Petitioner’s Follow-Up
• November 2, 2018: Lori Loch-Lee from AAM notified the Petitioner she would forward his request to all Board members, noting that AAM was only the Association’s accounting firm.
• November 18, 2018: The Petitioner received a summary table listing some EDC actions, not the complete set of communications and documents requested. At this time, he was advised by Brian Schoeffler that he “needed to copy all Board members on records requests.”
• March 6, 2019: The Petitioner sent a follow-up email, accusing the Association of willful failure and clarifying the specific records he sought beyond the summary table, including “copies of the communications (letters, emails, and application forms) relating to Environmental Design Review (EDC) submissions, requests, complaints and approvals (or denials).”
• March 11, 2019: Mr. Schoeffler replied, arguing that the request had been complied with on November 18, 2018, and directed the Petitioner to “submit a new request” for the additional information.
• March 17, 2019: Mr. Schoeffler reiterated that the original request was only sent to two of four Board members and stated that providing additional documents could be “interpreted as an admission of guilt.”
As of the rehearing date (August 27, 2019), the Petitioner had still not received all the documentation requested on November 1, 2018.
Legal Proceedings and Rulings
Initial Hearing and Decision (April 10, 2019)
In the first hearing, the dispute centered on the validity of the request submission and the adequacy of the Association’s response.
Arguments:
• Petitioner (Barrs): Argued the Association acted in bad faith and willfully failed to fulfill the request, noting a similar dispute had been previously adjudicated. He was concerned with the completeness of the response, not its timeliness.
• Respondent (HOA): Argued it had complied with the request by providing a summary table, consistent with its handling of a previous dispute with the Petitioner. Mr. Schoeffler testified that the response was untimely (provided on the 11th business day) but asserted it was otherwise sufficient.
ALJ Conclusion: The Judge ruled in favor of the Association, denying the Petitioner’s petition. The key finding was that the Petitioner had failed to properly submit his request.
“Because the credible evidence of record reflects that Petitioner failed to properly submit his records request to the Board, Petitioner has failed established by a preponderance of the evidence that the Association was in violation of ARIZ. REV. STAT. § 33-1805 for providing him with a summary table on November 18, 2018.”
The decision also noted that the statute does not legally obligate an HOA to email copies of records.
Rehearing and Final Decision (September 12, 2019)
After the Petitioner’s appeal was granted, a rehearing introduced new evidence that fundamentally changed the outcome.
New Evidence and Concessions:
• July 19, 2017 Instruction: Evidence showed Association President Catherine Overby had previously appointed Brian Schoeffler as the Petitioner’s “primary records request contact.”
• July 18, 2018 Instruction: Evidence showed Ms. Overby had also instructed the Petitioner to direct requests to the management company, AAM.
• Association Concessions: The Respondent conceded that its governing documents do not require all Board members to be copied on records requests and that its own bylaws regarding submission forms are not adhered to or enforced.
ALJ’s Reversed Conclusion: The Judge reversed the prior decision and granted the Petitioner’s petition. The new evidence proved the Petitioner had followed express instructions from the Association.
“Petitioner’s November 01, 2018, records request was not required to be sent to all members of the Association’s Board, as Petitioner had expressly been instructed to only send his records requests to the Association’s EDC Chairman, Mr. Schoeffler, which he did.”
The Judge concluded that the partial response was a clear violation of the law.
“Petitioner is correct that the Association did not fully comply with his specific request, and has established by a preponderance of the evidence that the summary table provided by the Association was a violation of ARIZ. REV. STAT. § 33-1805.”
Final Order and Penalties
The Administrative Law Judge’s Final Order on September 12, 2019, which is binding on the parties, mandated the following:
1. Petition Granted: The Petitioner’s petition was granted.
2. Filing Fee Reimbursement: The Respondent (Desert Ranch HOA) was ordered to reimburse the Petitioner’s $500.00 filing fee.
3. Civil Penalty: The Respondent was ordered to pay a civil penalty of $500.00 to the Arizona Department of Real Estate.
ARIZ. REV. STAT. § 33-1803; Bylaws Article IV, Section 6
Outcome Summary
The Administrative Law Judge denied the Petitioner's request, finding that the HOA's action to uniformly assess all CR-1 Lots (including Petitioner's two uncombined lots) adhered to the Association Bylaws, which require uniform rates, and did not violate ARS § 33-1803. The governing documents took precedence over any prior reduced assessment granted by a previous Board Order.
Why this result: Petitioner failed to prove the Association’s interpretation of the Bylaws requiring uniform assessment for all CR-1 lots was incorrect or unlawful, as her lots remained separate parcels according to the county map.
Key Issues & Findings
Whether Sin Vacas Property Owners Association (Respondent) arbitrarily and capriciously raised annual assessments for some homeowners and not others in contravention of decades of past board practice and contractual agreements.
Petitioner challenged the Association's decision to raise her assessment from 150% to 200% (full rate for two lots) based on the Association's interpretation that the Bylaws require uniform assessment rates for all CR-1 lots, arguing the new rate violated a long-standing prior Board Order (2003) granting her a reduced rate.
Orders: Petitioner’s petition is denied.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 33-1803
ARIZ. REV. STAT. § 33-1802(4)
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Bylaws Article IV, Covenant For Maintenance Assessments, Section 6
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
19F-H1918017-REL Decision – 698354.pdf
Uploaded 2025-10-09T03:33:35 (137.2 KB)
Briefing Doc – 19F-H1918017-REL
Briefing Document: Brokaw v. Sin Vacas Property Owners Association (Case No. 19F-H1918017-REL)
Executive Summary
This document synthesizes the findings of the Administrative Law Judge Decision in the case of Loraine Brokaw versus the Sin Vacas Property Owners Association (POA). The central conflict concerned the POA Board’s decision to increase Ms. Brokaw’s annual assessment from 150% to 200% for a single residence constructed across two separate lots.
The Petitioner, Ms. Brokaw, argued that this increase was unlawful and capricious, violating a nearly thirty-year practice that had been formalized by a 2003 Board decision granting her a reduced assessment. The POA contended that its action, taken on the advice of counsel, was necessary to comply with the Association’s governing documents, which mandate uniform assessments for all lots.
The Administrative Law Judge (ALJ) ultimately denied the homeowner’s petition. The decision established a critical legal precedent for the Association: the unambiguous language of the governing Covenants, Conditions, and Restrictions (CC&Rs) takes precedence over any past Board decisions, informal agreements, or long-standing practices, regardless of their duration. Because the Petitioner owns two distinct, legally unconsolidated lots, the ALJ found that the Board’s action to assess each lot at the full, uniform rate was not a violation, but rather a correct and required application of the community’s Bylaws.
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I. Case Overview
• Parties: Loraine Brokaw (Petitioner) vs. Sin Vacas Property Owners Association (Respondent).
• Jurisdiction: Office of Administrative Hearings (OAH), State of Arizona.
• Case Number: 19F-H1918017-REL.
• Presiding Judge: Administrative Law Judge Jenna Clark.
• Hearing Date: March 25, 2019.
• Decision Date: April 01, 2019.
II. Central Issue of the Dispute
The hearing was convened to address the following issue, as stated in the NOTICE OF HEARING:
“Whether Sin Vacas Property Owners Association (Respondent) arbitrarily and capriciously raised annual assessments for some homeowners and not others in contravention of decades of past board practice and contractual agreements based on utterly flawed legal theory, which, in fact, changed from attorney to attorney.”
The core of the dispute was the Association Board’s decision in 2017 to increase the annual assessment for the Petitioner’s property—a single home built across two adjacent lots—from 150% to 200% of the standard single-lot assessment rate. The Petitioner sought to compel the Board to revert to the 150% assessment schedule and reimburse her for costs associated with the petition.
III. Petitioner’s Position and Key Testimony
• Property History: The Petitioner testified that her husband first bought property in Sin Vacas in 1979. In 2003, the couple purchased an adjacent lot and constructed a new home that spanned across both properties (Lots 156 and 157).
• Claim of Lot Combination: The Petitioner claimed to have legally combined the two lots but presented no supporting documentation to the tribunal.
• Historical Assessment Practice: The Petitioner testified that as of 2003, the Association’s practice was to assess properties as follows:
◦ 100%: For a home on a single lot.
◦ 25%: For an undeveloped vacant lot.
◦ 150%: For a residence situated on two lots.
• 2003 Board Decision: On March 24, 2003, the Petitioner received written confirmation from the Board that it had voted to grant her a reduced assessment of 150%, formalizing the existing practice for her property.
• 2017 Assessment Change: On or about December 4, 2017, the Petitioner received a letter from the Association’s management company advising that the Board had decided to raise her assessment to 200%, citing “advice of counsel.”
• Rationale for Increase: The Petitioner stated she was given varying reasons for the change but was ultimately informed that the Board determined all plats needed to be assessed uniformly according to the Association’s governing documents. She was also told that to be assessed as a single lot, she would need to formally combine the lots on the county plat map, a process estimated to cost between $3,000 and $10,000 and require the permission of every other homeowner in the community.
IV. Respondent’s Position
The Sin Vacas Property Owners Association declined to present witnesses or exhibits. Its position at the hearing was that the dispute arose from differing interpretations of the language within the governing Bylaws. The Association’s counsel stated that the matter would be resolved based on the tribunal’s interpretation of the relevant governing texts.
V. Analysis of Governing Documents
The decision rested heavily on the interpretation of the Association’s Covenants, Conditions, and Restrictions (CC&Rs), recorded on April 13, 1978.
Document Section
Key Provision
Relevance to the Case
Bylaws Article I, Section 5
Defines a “Lot” as “any numbered lot shown upon any recorded subdivision map of the Sin Vacas Properties.”
This established that the Petitioner’s two properties, being separately numbered on the subdivision map, constitute two distinct lots for assessment purposes.
Bylaws Article IV, Section 6
“Special assessments must be fixed and apportioned at a uniform rate for all CR-1 lots, SR lots, and each 20,000 square feet of TR lots.”
This clause was central to the Judge’s decision. It establishes a clear mandate for uniformity in assessments across all lots of the same type (CR-1), which the 150% rate violated by treating two CR-1 lots differently from others.
Bylaws Article IV, Section 7
States the Board of Directors shall “fix the amount of the annual assessment against each Lot.”
This empowers the Board to set assessments but reinforces that they must do so on a per-lot basis, consistent with the uniformity requirement.
VI. Judge’s Findings and Conclusions of Law
The Administrative Law Judge made the following key determinations, leading to the denial of the petition:
• Failure to Meet Burden of Proof: The Petitioner failed to prove by a preponderance of the evidence that the Association violated community documents or Arizona statutes.
• Undisputed Material Facts: The Judge found it undisputed that:
1. The Petitioner owns two distinct CR-1 lots (Lot 156 and Lot 157).
2. The lots have never been legally combined or consolidated on the Pima County Assessor’s plat map.
3. The Petitioner’s residence is constructed across both lots.
• Primacy of Governing Documents: The central conclusion of the decision was that the Association’s governing documents supersede any past Board decisions or long-standing informal agreements. The Judge stated:
• Uniformity is Mandatory: The Bylaws require that the Association assess all developed CR-1 lots at a uniform rate. By assessing both of the Petitioner’s lots at the same full rate as every other developed CR-1 lot, the Association was found to be complying with the Declaration.
• Board’s Action as Corrective: The 2017 Board’s action was not a breach of contract or an unlawful act. Instead, it was an appropriate correction of the previous Board’s 2003 order, which was inconsistent with the Bylaws’ uniformity mandate. The Petitioner’s argument that the 2003 order should supersede the 2017 order was deemed inaccurate.
VII. Final Order
Based on the findings and legal conclusions, the Administrative Law Judge ordered that the Petitioner’s petition be denied.
The decision affirmed that the Sin Vacas Property Owners Association Board’s action to uniformly assess all CR-1 lots did not violate Arizona state law (ARIZ. REV. STAT. § 33-1803) or the Association’s Bylaws.
Study Guide – 19F-H1918017-REL
Study Guide: Brokaw v. Sin Vacas Property Owners Association
This guide reviews the key facts, legal arguments, and final ruling in the administrative hearing case No. 19F-H1918017-REL, Loraine Brokaw v. Sin Vacas Property Owners Association.
Short-Answer Quiz
Answer each question in 2-3 sentences, based on the provided source document.
1. Who were the primary parties involved in the hearing, and what were their respective roles?
2. What specific relief did the Petitioner request from the Office of Administrative Hearings?
3. What specific action taken by the Respondent prompted the Petitioner to file her petition?
4. Describe the assessment practice that the Sin Vacas Board had in place for the Petitioner’s property from 2003 until the change in 2017.
5. What was the Association’s stated reason for increasing the Petitioner’s assessment from 150% to 200%?
6. According to the Association’s Bylaws, what is the rule for how special assessments must be fixed and apportioned?
7. On what grounds did the Administrative Law Judge determine that the Petitioner owned two separate lots?
8. What is the legal standard of proof required in this case, and did the Petitioner successfully meet it?
9. Why did the Judge rule that the 2003 Board Order reducing the Petitioner’s assessment was not a binding contract?
10. What was the final order issued by the Administrative Law Judge in this matter?
——————————————————————————–
Answer Key
1. The primary parties were Loraine Brokaw, the Petitioner, who brought the action, and the Sin Vacas Property Owners Association, the Respondent. The case was heard by Administrative Law Judge Jenna Clark from the Office of Administrative Hearings.
2. The Petitioner requested that the Association’s Board be compelled to honor the 30-year assessment schedule and charge her the 150% assessment rate. She also requested that the Board reimburse her for the costs of bringing the petition.
3. The Petitioner filed her petition after receiving a letter on or about December 4, 2017, from the Association’s management company. This letter advised her that the Board had decided to raise her assessment from 150% to 200% based on “advice of counsel.”
4. Beginning in 2003, the Association assessed a home on a single lot at 100%, an undeveloped vacant lot at 25%, and a residence spanning two lots, like the Petitioner’s, at 150%. The Petitioner received written confirmation of her reduced 150% assessment from the Board on March 24, 2003.
5. The Association’s Board increased the assessment after determining that all plats needed to be assessed uniformly, per the Association’s Restatement. The increase was meant to bring her two lots into compliance with the governing documents.
6. Bylaws Article IV, Section 6 states that “Special assessments must be fixed and apportioned at a uniform rate for all CR-1 lots, SR lots, and each 20,000 square feet of TR lots.”
7. The Judge’s conclusion was based on the undisputed fact that the Petitioner’s two properties, Lots 156 and 157, have never been officially combined or consolidated into a single numbered lot on the Pima County Assessor’s Office plat map.
8. The required standard of proof was a “preponderance of the evidence,” which means proving a contention is more probably true than not. The Judge found that the Petitioner failed to sustain her burden of proof.
9. The Judge ruled that the 2003 Board Order was not a binding contract because the Petitioner provided no proof of consideration tendered to the Association. Therefore, the Association’s governing documents took precedence over the informal agreement.
10. The Administrative Law Judge ordered that the Petitioner’s petition be denied. The Judge concluded that the Board’s action to uniformly assess all CR-1 lots did not violate state statutes or the Association’s Bylaws.
——————————————————————————–
Essay Questions
The following questions are designed for longer, more analytical responses. No answers are provided.
1. Analyze the legal reasoning behind the Administrative Law Judge’s decision. Discuss the hierarchy of authority between the Association’s governing documents (CC&Rs) and a Board Order, as interpreted in this case.
2. Explain the concept of “burden of proof” in the context of this hearing. How did the Petitioner’s failure to meet the “preponderance of the evidence” standard lead to the denial of her petition?
3. The Petitioner’s case relied heavily on past practice and a 2003 Board decision to grant her a reduced assessment. Discuss why this argument was ultimately insufficient to overcome the explicit language of the Association’s governing documents.
4. Examine the contractual nature of a homeowners’ association’s CC&Rs as described in the Findings of Fact. How does this contractual relationship between the Association and each property owner shape the obligations and rights of both parties?
5. The Respondent (Sin Vacas POA) declined to present witnesses or exhibits, taking a passive stance at the hearing. Discuss the potential legal strategy behind this approach and how the undisputed material facts of the case made this a viable option.
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official, in this case Jenna Clark, who presides over administrative hearings, reviews evidence, makes Findings of Fact and Conclusions of Law, and issues orders.
Association
The Sin Vacas Property Owners Association, a homeowners’ association for the Sin Vacas subdivision in Tucson, Arizona, responsible for managing, maintaining, and improving the property.
Assessment
A fee levied by the Association on property owners to promote the recreation, health, safety, and welfare of residents and for the improvement and maintenance of common areas and private streets.
Bylaws
The specific articles and sections within the CC&Rs that govern the Association’s operations, including definitions, assessment rules, and voting procedures.
CC&Rs (Covenants, Conditions, and Restrictions)
The governing documents for the Association, recorded with Pima County on April 13, 1978. They form an enforceable contract between the Association and each property owner.
Department
The Arizona Department of Real Estate, which is authorized by statute to receive and decide petitions for hearings from members of homeowners’ associations.
Any numbered lot shown upon any recorded subdivision map of the Sin Vacas Properties, with the exception of the Common Area. This case deals specifically with CR-1 lots.
OAH (Office of Administrative Hearings)
An independent state agency to which the Department refers matters for evidentiary hearings. The OAH has the authority to hear and decide contested cases and interpret contracts between parties.
Petitioner
Loraine Brokaw, a property owner in the Sin Vacas subdivision and member of the Association who filed the petition against the Association.
Planned Community
A real estate development where owners of separately owned lots are mandatory members of a nonprofit association and are required to pay assessments for the purpose of managing, maintaining, or improving the property.
Preponderance of the evidence
The standard of proof required for the Petitioner to win her case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and represents the greater weight of evidence.
Respondent
The Sin Vacas Property Owners Association, the entity against whom the petition was filed.
Blog Post – 19F-H1918017-REL
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The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between Loraine Brokaw (Petitioner) and the Sin Vacas Property Owners Association (Respondent). The Petitioner challenged the Association’s decision to raise her annual assessment, arguing that the increase was arbitrary and contravened a decades-long practice of assessing her two lots at a combined 150% rate, rather than the new 200% rate. The decision outlines the Findings of Fact and Conclusions of Law, confirming that the Association is governed by its Covenants, Conditions, and Restrictions (CC&Rs) and Bylaws, which require uniform assessment rates for all developed lots. Ultimately, the Administrative Law Judge concluded that the Petitioner failed to prove the Association violated any community documents or statutes, reasoning that the governing documents take precedence over any prior informal agreement, and denied the Petitioner’s request.
What was the core legal basis for rejecting the petitioner’s assessment challenge?
How did the Association’s governing documents dictate uniform assessment requirements?
What legal implications arose from the Board’s decision to change long-standing practice?
Based on 1 source
Case Participants
Petitioner Side
Loraine Brokaw(petitioner)
Respondent Side
Jason Smith(HOA attorney) Carpenter, Hazlewood, Delgado & Bolen LLP Counsel for Sin Vacas Property Owners Association
Sean Moynihan(HOA attorney) Carpenter, Hazlewood, Delgado & Bolen LLP Counsel for Sin Vacas Property Owners Association
Neutral Parties
Jenna Clark(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
ARIZ. REV. STAT. § 33-1803; Bylaws Article IV, Section 6
Outcome Summary
The Administrative Law Judge denied the Petitioner's request, finding that the HOA's action to uniformly assess all CR-1 Lots (including Petitioner's two uncombined lots) adhered to the Association Bylaws, which require uniform rates, and did not violate ARS § 33-1803. The governing documents took precedence over any prior reduced assessment granted by a previous Board Order.
Why this result: Petitioner failed to prove the Association’s interpretation of the Bylaws requiring uniform assessment for all CR-1 lots was incorrect or unlawful, as her lots remained separate parcels according to the county map.
Key Issues & Findings
Whether Sin Vacas Property Owners Association (Respondent) arbitrarily and capriciously raised annual assessments for some homeowners and not others in contravention of decades of past board practice and contractual agreements.
Petitioner challenged the Association's decision to raise her assessment from 150% to 200% (full rate for two lots) based on the Association's interpretation that the Bylaws require uniform assessment rates for all CR-1 lots, arguing the new rate violated a long-standing prior Board Order (2003) granting her a reduced rate.
Orders: Petitioner’s petition is denied.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 33-1803
ARIZ. REV. STAT. § 33-1802(4)
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Bylaws Article IV, Covenant For Maintenance Assessments, Section 6
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
19F-H1918017-REL Decision – 698354.pdf
Uploaded 2026-01-23T17:26:53 (137.2 KB)
Briefing Doc – 19F-H1918017-REL
Briefing Document: Brokaw v. Sin Vacas Property Owners Association (Case No. 19F-H1918017-REL)
Executive Summary
This document synthesizes the findings of the Administrative Law Judge Decision in the case of Loraine Brokaw versus the Sin Vacas Property Owners Association (POA). The central conflict concerned the POA Board’s decision to increase Ms. Brokaw’s annual assessment from 150% to 200% for a single residence constructed across two separate lots.
The Petitioner, Ms. Brokaw, argued that this increase was unlawful and capricious, violating a nearly thirty-year practice that had been formalized by a 2003 Board decision granting her a reduced assessment. The POA contended that its action, taken on the advice of counsel, was necessary to comply with the Association’s governing documents, which mandate uniform assessments for all lots.
The Administrative Law Judge (ALJ) ultimately denied the homeowner’s petition. The decision established a critical legal precedent for the Association: the unambiguous language of the governing Covenants, Conditions, and Restrictions (CC&Rs) takes precedence over any past Board decisions, informal agreements, or long-standing practices, regardless of their duration. Because the Petitioner owns two distinct, legally unconsolidated lots, the ALJ found that the Board’s action to assess each lot at the full, uniform rate was not a violation, but rather a correct and required application of the community’s Bylaws.
——————————————————————————–
I. Case Overview
• Parties: Loraine Brokaw (Petitioner) vs. Sin Vacas Property Owners Association (Respondent).
• Jurisdiction: Office of Administrative Hearings (OAH), State of Arizona.
• Case Number: 19F-H1918017-REL.
• Presiding Judge: Administrative Law Judge Jenna Clark.
• Hearing Date: March 25, 2019.
• Decision Date: April 01, 2019.
II. Central Issue of the Dispute
The hearing was convened to address the following issue, as stated in the NOTICE OF HEARING:
“Whether Sin Vacas Property Owners Association (Respondent) arbitrarily and capriciously raised annual assessments for some homeowners and not others in contravention of decades of past board practice and contractual agreements based on utterly flawed legal theory, which, in fact, changed from attorney to attorney.”
The core of the dispute was the Association Board’s decision in 2017 to increase the annual assessment for the Petitioner’s property—a single home built across two adjacent lots—from 150% to 200% of the standard single-lot assessment rate. The Petitioner sought to compel the Board to revert to the 150% assessment schedule and reimburse her for costs associated with the petition.
III. Petitioner’s Position and Key Testimony
• Property History: The Petitioner testified that her husband first bought property in Sin Vacas in 1979. In 2003, the couple purchased an adjacent lot and constructed a new home that spanned across both properties (Lots 156 and 157).
• Claim of Lot Combination: The Petitioner claimed to have legally combined the two lots but presented no supporting documentation to the tribunal.
• Historical Assessment Practice: The Petitioner testified that as of 2003, the Association’s practice was to assess properties as follows:
◦ 100%: For a home on a single lot.
◦ 25%: For an undeveloped vacant lot.
◦ 150%: For a residence situated on two lots.
• 2003 Board Decision: On March 24, 2003, the Petitioner received written confirmation from the Board that it had voted to grant her a reduced assessment of 150%, formalizing the existing practice for her property.
• 2017 Assessment Change: On or about December 4, 2017, the Petitioner received a letter from the Association’s management company advising that the Board had decided to raise her assessment to 200%, citing “advice of counsel.”
• Rationale for Increase: The Petitioner stated she was given varying reasons for the change but was ultimately informed that the Board determined all plats needed to be assessed uniformly according to the Association’s governing documents. She was also told that to be assessed as a single lot, she would need to formally combine the lots on the county plat map, a process estimated to cost between $3,000 and $10,000 and require the permission of every other homeowner in the community.
IV. Respondent’s Position
The Sin Vacas Property Owners Association declined to present witnesses or exhibits. Its position at the hearing was that the dispute arose from differing interpretations of the language within the governing Bylaws. The Association’s counsel stated that the matter would be resolved based on the tribunal’s interpretation of the relevant governing texts.
V. Analysis of Governing Documents
The decision rested heavily on the interpretation of the Association’s Covenants, Conditions, and Restrictions (CC&Rs), recorded on April 13, 1978.
Document Section
Key Provision
Relevance to the Case
Bylaws Article I, Section 5
Defines a “Lot” as “any numbered lot shown upon any recorded subdivision map of the Sin Vacas Properties.”
This established that the Petitioner’s two properties, being separately numbered on the subdivision map, constitute two distinct lots for assessment purposes.
Bylaws Article IV, Section 6
“Special assessments must be fixed and apportioned at a uniform rate for all CR-1 lots, SR lots, and each 20,000 square feet of TR lots.”
This clause was central to the Judge’s decision. It establishes a clear mandate for uniformity in assessments across all lots of the same type (CR-1), which the 150% rate violated by treating two CR-1 lots differently from others.
Bylaws Article IV, Section 7
States the Board of Directors shall “fix the amount of the annual assessment against each Lot.”
This empowers the Board to set assessments but reinforces that they must do so on a per-lot basis, consistent with the uniformity requirement.
VI. Judge’s Findings and Conclusions of Law
The Administrative Law Judge made the following key determinations, leading to the denial of the petition:
• Failure to Meet Burden of Proof: The Petitioner failed to prove by a preponderance of the evidence that the Association violated community documents or Arizona statutes.
• Undisputed Material Facts: The Judge found it undisputed that:
1. The Petitioner owns two distinct CR-1 lots (Lot 156 and Lot 157).
2. The lots have never been legally combined or consolidated on the Pima County Assessor’s plat map.
3. The Petitioner’s residence is constructed across both lots.
• Primacy of Governing Documents: The central conclusion of the decision was that the Association’s governing documents supersede any past Board decisions or long-standing informal agreements. The Judge stated:
• Uniformity is Mandatory: The Bylaws require that the Association assess all developed CR-1 lots at a uniform rate. By assessing both of the Petitioner’s lots at the same full rate as every other developed CR-1 lot, the Association was found to be complying with the Declaration.
• Board’s Action as Corrective: The 2017 Board’s action was not a breach of contract or an unlawful act. Instead, it was an appropriate correction of the previous Board’s 2003 order, which was inconsistent with the Bylaws’ uniformity mandate. The Petitioner’s argument that the 2003 order should supersede the 2017 order was deemed inaccurate.
VII. Final Order
Based on the findings and legal conclusions, the Administrative Law Judge ordered that the Petitioner’s petition be denied.
The decision affirmed that the Sin Vacas Property Owners Association Board’s action to uniformly assess all CR-1 lots did not violate Arizona state law (ARIZ. REV. STAT. § 33-1803) or the Association’s Bylaws.
Study Guide – 19F-H1918017-REL
Study Guide: Brokaw v. Sin Vacas Property Owners Association
This guide reviews the key facts, legal arguments, and final ruling in the administrative hearing case No. 19F-H1918017-REL, Loraine Brokaw v. Sin Vacas Property Owners Association.
Short-Answer Quiz
Answer each question in 2-3 sentences, based on the provided source document.
1. Who were the primary parties involved in the hearing, and what were their respective roles?
2. What specific relief did the Petitioner request from the Office of Administrative Hearings?
3. What specific action taken by the Respondent prompted the Petitioner to file her petition?
4. Describe the assessment practice that the Sin Vacas Board had in place for the Petitioner’s property from 2003 until the change in 2017.
5. What was the Association’s stated reason for increasing the Petitioner’s assessment from 150% to 200%?
6. According to the Association’s Bylaws, what is the rule for how special assessments must be fixed and apportioned?
7. On what grounds did the Administrative Law Judge determine that the Petitioner owned two separate lots?
8. What is the legal standard of proof required in this case, and did the Petitioner successfully meet it?
9. Why did the Judge rule that the 2003 Board Order reducing the Petitioner’s assessment was not a binding contract?
10. What was the final order issued by the Administrative Law Judge in this matter?
——————————————————————————–
Answer Key
1. The primary parties were Loraine Brokaw, the Petitioner, who brought the action, and the Sin Vacas Property Owners Association, the Respondent. The case was heard by Administrative Law Judge Jenna Clark from the Office of Administrative Hearings.
2. The Petitioner requested that the Association’s Board be compelled to honor the 30-year assessment schedule and charge her the 150% assessment rate. She also requested that the Board reimburse her for the costs of bringing the petition.
3. The Petitioner filed her petition after receiving a letter on or about December 4, 2017, from the Association’s management company. This letter advised her that the Board had decided to raise her assessment from 150% to 200% based on “advice of counsel.”
4. Beginning in 2003, the Association assessed a home on a single lot at 100%, an undeveloped vacant lot at 25%, and a residence spanning two lots, like the Petitioner’s, at 150%. The Petitioner received written confirmation of her reduced 150% assessment from the Board on March 24, 2003.
5. The Association’s Board increased the assessment after determining that all plats needed to be assessed uniformly, per the Association’s Restatement. The increase was meant to bring her two lots into compliance with the governing documents.
6. Bylaws Article IV, Section 6 states that “Special assessments must be fixed and apportioned at a uniform rate for all CR-1 lots, SR lots, and each 20,000 square feet of TR lots.”
7. The Judge’s conclusion was based on the undisputed fact that the Petitioner’s two properties, Lots 156 and 157, have never been officially combined or consolidated into a single numbered lot on the Pima County Assessor’s Office plat map.
8. The required standard of proof was a “preponderance of the evidence,” which means proving a contention is more probably true than not. The Judge found that the Petitioner failed to sustain her burden of proof.
9. The Judge ruled that the 2003 Board Order was not a binding contract because the Petitioner provided no proof of consideration tendered to the Association. Therefore, the Association’s governing documents took precedence over the informal agreement.
10. The Administrative Law Judge ordered that the Petitioner’s petition be denied. The Judge concluded that the Board’s action to uniformly assess all CR-1 lots did not violate state statutes or the Association’s Bylaws.
——————————————————————————–
Essay Questions
The following questions are designed for longer, more analytical responses. No answers are provided.
1. Analyze the legal reasoning behind the Administrative Law Judge’s decision. Discuss the hierarchy of authority between the Association’s governing documents (CC&Rs) and a Board Order, as interpreted in this case.
2. Explain the concept of “burden of proof” in the context of this hearing. How did the Petitioner’s failure to meet the “preponderance of the evidence” standard lead to the denial of her petition?
3. The Petitioner’s case relied heavily on past practice and a 2003 Board decision to grant her a reduced assessment. Discuss why this argument was ultimately insufficient to overcome the explicit language of the Association’s governing documents.
4. Examine the contractual nature of a homeowners’ association’s CC&Rs as described in the Findings of Fact. How does this contractual relationship between the Association and each property owner shape the obligations and rights of both parties?
5. The Respondent (Sin Vacas POA) declined to present witnesses or exhibits, taking a passive stance at the hearing. Discuss the potential legal strategy behind this approach and how the undisputed material facts of the case made this a viable option.
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official, in this case Jenna Clark, who presides over administrative hearings, reviews evidence, makes Findings of Fact and Conclusions of Law, and issues orders.
Association
The Sin Vacas Property Owners Association, a homeowners’ association for the Sin Vacas subdivision in Tucson, Arizona, responsible for managing, maintaining, and improving the property.
Assessment
A fee levied by the Association on property owners to promote the recreation, health, safety, and welfare of residents and for the improvement and maintenance of common areas and private streets.
Bylaws
The specific articles and sections within the CC&Rs that govern the Association’s operations, including definitions, assessment rules, and voting procedures.
CC&Rs (Covenants, Conditions, and Restrictions)
The governing documents for the Association, recorded with Pima County on April 13, 1978. They form an enforceable contract between the Association and each property owner.
Department
The Arizona Department of Real Estate, which is authorized by statute to receive and decide petitions for hearings from members of homeowners’ associations.
Any numbered lot shown upon any recorded subdivision map of the Sin Vacas Properties, with the exception of the Common Area. This case deals specifically with CR-1 lots.
OAH (Office of Administrative Hearings)
An independent state agency to which the Department refers matters for evidentiary hearings. The OAH has the authority to hear and decide contested cases and interpret contracts between parties.
Petitioner
Loraine Brokaw, a property owner in the Sin Vacas subdivision and member of the Association who filed the petition against the Association.
Planned Community
A real estate development where owners of separately owned lots are mandatory members of a nonprofit association and are required to pay assessments for the purpose of managing, maintaining, or improving the property.
Preponderance of the evidence
The standard of proof required for the Petitioner to win her case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and represents the greater weight of evidence.
Respondent
The Sin Vacas Property Owners Association, the entity against whom the petition was filed.
Blog Post – 19F-H1918017-REL
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698354.pdf
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19F-H1918017-REL
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The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between Loraine Brokaw (Petitioner) and the Sin Vacas Property Owners Association (Respondent). The Petitioner challenged the Association’s decision to raise her annual assessment, arguing that the increase was arbitrary and contravened a decades-long practice of assessing her two lots at a combined 150% rate, rather than the new 200% rate. The decision outlines the Findings of Fact and Conclusions of Law, confirming that the Association is governed by its Covenants, Conditions, and Restrictions (CC&Rs) and Bylaws, which require uniform assessment rates for all developed lots. Ultimately, the Administrative Law Judge concluded that the Petitioner failed to prove the Association violated any community documents or statutes, reasoning that the governing documents take precedence over any prior informal agreement, and denied the Petitioner’s request.
What was the core legal basis for rejecting the petitioner’s assessment challenge?
How did the Association’s governing documents dictate uniform assessment requirements?
What legal implications arose from the Board’s decision to change long-standing practice?
Based on 1 source
Case Participants
Petitioner Side
Loraine Brokaw(petitioner)
Respondent Side
Jason Smith(HOA attorney) Carpenter, Hazlewood, Delgado & Bolen LLP Counsel for Sin Vacas Property Owners Association
Sean Moynihan(HOA attorney) Carpenter, Hazlewood, Delgado & Bolen LLP Counsel for Sin Vacas Property Owners Association
Neutral Parties
Jenna Clark(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
19F-H1918001-REL
Agency
ADRE
Tribunal
OAH
Decision Date
2019-03-25
Administrative Law Judge
Jenna Clark
Outcome
total
Filing Fees Refunded
$500.00
Civil Penalties
$250.00
Parties & Counsel
Petitioner
Jay A. Janicek
Counsel
Jake Kubert
Respondent
Sycamore Vista No. 8 Homeowners Association
Counsel
Evan Thompson
Alleged Violations
ARIZ. REV. STAT. § 33-1804(B); Association Bylaws Article III, Sections 3 & 4; Association Bylaws Article VIII, Section 1
Outcome Summary
The ALJ granted the petition, concluding that the HOA Board’s unilateral amendment of the Bylaws on November 20, 2017, was an invalid action taken without the required vote of the Association members and without statutory notice, violating ARIZ. REV. STAT. § 33-1804(B) and the Association’s governing documents. The amendment was invalidated, and the Respondent was ordered to refund the Petitioner's filing fee and pay a $250.00 civil penalty.
Key Issues & Findings
Whether Sycamore Vista No. 8 Homeowners Association (Respondent) violated Association Bylaws Article III, Sections 3 & 4 and Article VIII, Section 1 in an action taken by the board on November 20, 2017.
The Board of Directors attempted a third amendment to the Bylaws on November 20, 2017, specifically changing the requirements for the Association's financial review (audit, review, or compilation). The ALJ concluded that this action was invalid because it was taken in the absence of a quorum of Association members voting in favor of the amendment, violating both the Bylaws and statutory notice requirements.
Orders: The petition was granted. The third amendment to the Association Bylaws taken on November 20, 2017, was invalidated. Respondent was ordered to pay the Petitioner the filing fee required by ARIZ. REV. STAT. § 32-2199.01 and pay a civil penalty of $250.00 to the Planned Community Hearing Office Fund.
Briefing Document: Janicek v. Sycamore Vista No. 8 Homeowners Association
Executive Summary
This document synthesizes the findings and legal conclusions from the administrative hearings regarding a dispute between Jay A. Janicek (“Petitioner”) and the Sycamore Vista No. 8 Homeowners Association (“Respondent” or “the Association”). The central issue was whether the Association’s Board of Directors acted outside its authority by unilaterally amending the Association’s Bylaws during a Board meeting on November 20, 2017, without a vote from the general membership.
The Administrative Law Judge (ALJ) determined that the Board’s action violated both the Association’s governing documents and Arizona Revised Statutes (A.R.S. § 33-1804). The ruling emphasized that the term “members” in the Bylaws refers specifically to the body of property owners, not the Board of Directors. Consequently, the third amendment to the Bylaws was invalidated, and the Association was ordered to pay a civil penalty and refund the Petitioner’s filing fees. A rehearing in March 2019 reconfirmed these findings, underscoring the necessity of transparency and membership participation in homeowners’ association governance.
The Department of Real Estate referred the matter to the Office of Administrative Hearings (OAH) following a petition filed by Mr. Janicek on July 25, 2018. The Respondent initially declined to present witnesses or exhibits, choosing to rely on a dispute over textual interpretation. Following an initial ruling in favor of the Petitioner, the Respondent requested a rehearing, which was granted but ultimately resulted in the same conclusion.
The Core Dispute: Bylaw Amendment Authority
The conflict arose from a Board meeting held on November 20, 2017. During this meeting, the Board voted to approve a third amendment to the Association’s Bylaws.
The Specific Amendment
The Board modified Article VIII, Section 6(d). The original text required the Board to:
• “…cause an annual audit of the Association books to be made by a public accountant at the completion of each fiscal year.”
The Board replaced this with language allowing for:
• “…an annual audit, review, or compilation of the Associations financial records to be made by a public accountant within 180 days after the end of the HOA’s fiscal year.”
Conflicting Interpretations of “Members”
The primary legal dispute centered on the interpretation of Bylaws Article XIII, Section 1, which states:
“These Bylaws may be amended at a regular or special meeting of the Board of Directors of the Association by a vote of a majority of a quorum of members present in person or by proxy.” (Emphasis added).
• Petitioner’s Position: “Members” refers to the general membership of the Association (property owners), as defined in Article II, Section 7 and the Declaration. Petitioner argued that the use of “proxy” in this section further proves it refers to members, as Board Directors are not permitted to vote by proxy.
• Respondent’s Position: “Members” refers to the members of the Board of Directors. The Association argued that because the word was not capitalized in Article XIII, it authorized the Board to amend Bylaws at their own meetings, provided a quorum of Directors was present.
Legal Analysis and Evidence
Governing Statutes and Case Law
The ALJ’s decision was informed by Arizona law and established legal principles:
• A.R.S. § 33-1804 (Open Meeting Law): This statute requires that notice of any meeting where a bylaw amendment is proposed must be sent to all members 10 to 50 days in advance. It also mandates that meetings of the board and association be open to all members.
• A.R.S. § 33-1804(F): The legislative intent of the Open Meeting Law is to promote transparency. Petitioner cited a message from Governor Ducey stating that such laws “provide residents the opportunity to resolve issues as a community rather than seek government intervention.”
• Powell v. Washburn (2006): The Arizona Supreme Court held that restrictive covenants (including Bylaws) must be interpreted to give effect to the intention of the parties based on the document in its entirety.
Findings of Fact regarding Authority
The ALJ identified several factors that invalidated the Board’s unilateral action:
1. Differentiated Terminology: The Bylaws consistently use “Directors” when referring to the Board and “Members” when referring to the homeowners. Article VI, Section 3 explicitly uses “Directors” to define a quorum for the Board, while Article XIII uses “members.”
2. Absence of Express Power: Article VII, which outlines the “Powers and Duties of the Board of Directors,” does not expressly grant the Board the authority to amend Bylaws. This power is reserved for the membership.
3. Lack of Notice: No Association members were present at the November 20, 2017, meeting, and no notice was provided to the general membership regarding a proposed amendment to the Bylaws as required by A.R.S. § 33-1804(B).
Conclusions of Law
The ALJ concluded that the Petitioner sustained the burden of proof by a preponderance of the evidence. The final legal determinations were:
• Avoidance of Absurdity: Bylaws must be construed to avoid an absurdity. The ALJ stated, “The voices of few cannot speak for all, unless all have bestowed those few with the power and authority to speak on their behalf.”
• Violation of Statute: The Board’s action violated A.R.S. § 33-1804(B) due to the lack of transparency and failure to provide notice of a bylaw amendment.
• Violation of Governing Documents: The Board acted outside the authority granted to it by the Bylaws, specifically Article III and Article XIII.
Final Order and Penalties
The Administrative Law Judge issued the following orders:
1. Invalidation: The third amendment to the Association Bylaws, enacted on November 20, 2017, is null and void.
2. Restitution of Fees: The Respondent must pay the Petitioner the cost of his filing fee.
3. Civil Penalty: The Respondent was ordered to pay a sum of $250.00 to the Planned Community Hearing Office Fund as a penalty for the violations.
4. Binding Nature: Following the rehearing, the order became binding, with the only further recourse being judicial review in the Superior Court within 35 days.
Study Guide – 19F-H1918001-REL-RHG
Study Guide: Janicek v. Sycamore Vista No. 8 Homeowners Association
This study guide provides a comprehensive review of the legal proceedings between Jay A. Janicek and the Sycamore Vista No. 8 Homeowners Association. It examines the interpretation of governing documents, the application of Arizona Revised Statutes regarding homeowners’ associations, and the limits of a Board of Directors’ authority to amend bylaws.
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Part I: Short-Answer Quiz
Instructions: Answer the following questions in two to three sentences based on the provided legal documents.
1. Who are the primary parties involved in this administrative hearing, and what is their relationship?
2. What specific action taken by the Board of Directors on November 20, 2017, triggered this dispute?
3. How did the Petitioner define the term “member” according to the Association’s governing documents?
4. What was the Respondent’s primary argument regarding the interpretation of Article XIII, Section 1 of the Bylaws?
5. According to ARIZ. REV. STAT. § 33-1804(B), what must a notice of a membership meeting include if a bylaw amendment is proposed?
6. Why did the Petitioner argue that the use of the word “proxy” in the Bylaws supported his interpretation that only general members could amend the Bylaws?
7. What is the legal significance of the Covenants, Conditions, and Restrictions (CC&Rs) in the context of the relationship between an HOA and a property owner?
8. What was the “preponderance of the evidence” standard used by the Administrative Law Judge to reach a decision?
9. What specific penalties and orders were issued against the Respondent in the final decision?
10. What reason did the Administrative Law Judge give for concluding that the Board’s interpretation of the Bylaws was incorrect?
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Part II: Answer Key
1. Who are the primary parties involved in this administrative hearing, and what is their relationship? The Petitioner is Jay A. Janicek, a property owner and member of the Sycamore Vista subdivision. The Respondent is the Sycamore Vista No. 8 Homeowners Association, the entity responsible for governing the residential development where the Petitioner’s property is located.
2. What specific action taken by the Board of Directors on November 20, 2017, triggered this dispute? The Board voted to approve a third amendment to the Association’s Bylaws during a regular meeting. This amendment replaced a requirement for a full annual audit by a public accountant with a choice of an audit, review, or compilation to be completed within 180 days of the fiscal year-end.
3. How did the Petitioner define the term “member” according to the Association’s governing documents? The Petitioner asserted that “Member” refers to those persons entitled to membership as defined in the Declaration, specifically every lot owner. He argued that this definition distinguishes general property owners from the “Directors” who serve on the Board.
4. What was the Respondent’s primary argument regarding the interpretation of Article XIII, Section 1 of the Bylaws? The Respondent argued that the term “members” in Article XIII referred specifically to members of the Board of Directors rather than the general membership. They contended that since the word was not capitalized, it authorized the Board to amend Bylaws at any meeting where a quorum of directors was present.
5. According to ARIZ. REV. STAT. § 33-1804(B), what must a notice of a membership meeting include if a bylaw amendment is proposed? The statute requires that notice be sent to every owner 10 to 50 days in advance of the meeting, stating the date, time, and place. Crucially, the notice must also state the purpose of the meeting, including the general nature of any proposed amendments to the declaration or bylaws.
6. Why did the Petitioner argue that the use of the word “proxy” in the Bylaws supported his interpretation that only general members could amend the Bylaws? The Petitioner noted that the Bylaws allow for voting by “proxy,” a mechanism defined in Article III as applying to votes of the general membership. He argued that because Board members are legally prohibited from voting by proxy, the inclusion of the term in the amendment section proved the section applied to general members.
7. What is the legal significance of the Covenants, Conditions, and Restrictions (CC&Rs) in the context of the relationship between an HOA and a property owner? The CC&Rs constitute an enforceable contract between the Association and each individual property owner. By purchasing a residential unit within the development, the buyer agrees to be bound by the terms, powers, and restrictions outlined in these recorded documents.
8. What was the “preponderance of the evidence” standard used by the Administrative Law Judge to reach a decision? This standard requires the Petitioner to prove that his contention is “more probably true than not.” It is defined as the greater weight of the evidence or evidence that possesses the most convincing force, rather than the absolute removal of all doubt.
9. What specific penalties and orders were issued against the Respondent in the final decision? The Administrative Law Judge invalidated the third amendment to the Bylaws and ordered the Respondent to pay a $250.00 civil penalty to the Planned Community Hearing Office Fund. Additionally, the Respondent was ordered to reimburse the Petitioner for his initial filing fee.
10. What reason did the Administrative Law Judge give for concluding that the Board’s interpretation of the Bylaws was incorrect? The Judge ruled that bylaws must be construed to avoid “absurdity” and that the “voices of few cannot speak for all” without express authority. The governing documents clearly differentiated between “members” (owners) and “directors,” and the Board lacked the power to act where authority was reserved for the membership.
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Part III: Essay Questions
Instructions: Use the provided source context to develop comprehensive responses to the following prompts.
1. The Distinction Between “Members” and “Directors”: Analyze how the specific terminology used in the Sycamore Vista No. 8 Bylaws (Articles II, III, VI, and XIII) influenced the Administrative Law Judge’s decision. How does the consistent use of these terms throughout the document prevent the Board from claiming the powers of the general membership?
2. Statutory Compliance and Transparency: Discuss the importance of ARIZ. REV. STAT. § 33-1804 (the Open Meeting Law) as it relates to this case. Use Governor Ducey’s message regarding H.B. 2411 to explain the legislative intent behind ensuring transparency and participation in HOA governance.
3. The Role of the Office of Administrative Hearings (OAH): Explain the procedural path of this dispute, from the initial petition to the Department of Real Estate to the final rehearing. What is the scope of the OAH’s authority in interpreting contracts between homeowners and associations?
4. Contractual Interpretation and the “Powell v. Washburn” Precedent: Discuss the significance of the Arizona Supreme Court’s holding in Powell v. Washburn regarding restrictive covenants. How does the requirement to give effect to the “intention of the parties” apply to the interpretation of HOA Bylaws?
5. Limits of Board Authority: Based on the Findings of Fact and Conclusions of Law, evaluate the boundaries of a Board of Directors’ power. Under what circumstances can a Board exercise “all powers, duties, and authority” of the Association, and what serves as the definitive limit to that power?
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Part IV: Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
A presiding officer who hears evidence and issues decisions in contested cases involving state agencies.
ARIZ. REV. STAT. § 33-1804
The Arizona statute governing open meetings, notice requirements, and transparency for planned community associations.
Bylaws
The internal rules and regulations that govern the administration and management of an association.
Covenants, Conditions, and Restrictions; the recorded legal documents that establish the rules for a planned community and create a contract between owners and the HOA.
Civil Penalty
A financial fine imposed by a government agency or tribunal as a punishment for a violation of statutes or regulations.
Declarant
The original developer or entity that established the residential subdivision and its governing documents.
Declaration
The primary governing document that defines membership and property rights within a homeowners’ association.
Member
Defined in the source context as a property owner within the Sycamore Vista subdivision who is entitled to membership in the Association.
The Office of Administrative Hearings; an independent state agency that conducts evidentiary hearings for contested cases.
Petitioner
The party who initiates a legal action or petition (in this case, Jay A. Janicek).
Preponderance of the Evidence
The legal standard of proof required in this case, meaning a contention is “more probably true than not.”
A written authorization allowing one person to act or vote on behalf of another, specifically used by Association members.
Quorum
The minimum number of members or directors required to be present at a meeting to legally transact business.
Respondent
The party against whom a legal action or petition is filed (in this case, Sycamore Vista No. 8 HOA).
Restrictive Covenants
Provisions in a deed or other recorded document that limit the use of property and are interpreted to give effect to the intention of the parties.
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“case”: {
“docket_no”: “19F-H1918001-REL-RHG”,
“case_title”: “Jay A. Janicek, Petitioner, vs. Sycamore Vista No. 8 Homeowners Association (FKA New Tucson Unit No. 8 Homeowners Association, Inc.), Respondent.”,
“decision_date”: “March 25, 2019”,
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{
“name”: “Jay A. Janicek”,
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{
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{
“name”: “Dennis Legere”,
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“notes”: “Observer present at initial hearing.”
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{
“name”: “Becky Nutt”,
“role”: “observer”,
“side”: “unknown”,
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“notes”: “Observer present at initial hearing.”
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{
“name”: “Caleb Rhodes”,
“role”: “observer”,
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{
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“notes”: “Appeared on behalf of Petitioner at rehearing.”
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{
“name”: “Judy Lowe”,
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{
“name”: “Andrew F. Vizcarra”,
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“affiliation”: “Tucson Realty & Trust Co. Management”,
“notes”: “Listed as representative for service of process for Respondent HOA.”
},
{
“name”: “Maxwell T. Riddiough”,
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{ “case”: { “agency”: “ADRE”, “tribunal”: “OAH”, “docket_no”: “19F-H1918001-REL”, “case_title”: “Jay A. Janicek vs. Sycamore Vista No. 8 Homeowners Association”, “decision_date”: “2019-03-25”, “alj_name”: “Jenna Clark” }, “parties”: [ { “party_id”: “P1”, “role”: “petitioner”, “name”: “Jay A. Janicek”, “party_type”: “homeowner”, “email”: null, “phone”: null, “attorney_name”: “Jake Kubert”, “attorney_firm”: “Dessaules Law Group”, “attorney_email”: null, “attorney_phone”: null }, { “party_id”: “R1”, “role”: “respondent”, “name”: “Sycamore Vista No. 8 Homeowners Association”, “party_type”: “HOA”, “email”: null, “phone”: null, “attorney_name”: “Evan Thompson”, “attorney_firm”: “Thompson Krone, P.L.C.”, “attorney_email”: null, “attorney_phone”: null } ], “issues”: [ { “issue_id”: “ISS-001”, “type”: “statute_and_bylaws”, “citation”: “ARIZ. REV. STAT. § 33-1804(B); Association Bylaws Article III, Sections 3 & 4; Association Bylaws Article VIII, Section 1”, “caption”: “Whether Sycamore Vista No. 8 Homeowners Association (Respondent) violated Association Bylaws Article III, Sections 3 & 4 and Article VIII, Section 1 in an action taken by the board on November 20, 2017.”, “violation(s)”: “Violation of ARIZ. REV. STAT. § 33-1804(B) and Association Bylaws Article III by amending the Bylaws on November 20, 2017, without proper notice and a vote of the Association membership.”, “summary”: “The Board of Directors attempted a third amendment to the Bylaws on November 20, 2017, specifically changing the requirements for the Association’s financial review (audit, review, or compilation)12. The ALJ concluded that this action was invalid because it was taken in the absence of a quorum of Association members voting in favor of the amendment, violating both the Bylaws and statutory notice requirements34.”, “outcome”: “petitioner_win”, “filing_fee_paid”: 500.0, “filing_fee_refunded”: true, “civil_penalty_amount”: 250.0, “orders_summary”: “The petition was granted. The third amendment to the Association Bylaws taken on November 20, 2017, was invalidated. Respondent was ordered to pay the Petitioner the filing fee required by ARIZ. REV. STAT. § 32-2199.01 and pay a civil penalty of $250.00 to the Planned Community Hearing Office Fund56.”, “why_the_loss”: null, “cited”: [ “ARIZ. REV. STAT. § 33-1804(B)”, “Association Bylaws Article III” ] } ], “money_summary”: { “issues_count”: 1, “total_filing_fees_paid”: 500.0, “total_filing_fees_refunded”: 500.0, “total_civil_penalties”: 250.0 }, “outcomes”: { “petitioner_is_hoa”: false, “petitioner_win”: “total”, “summarize_judgement”: “The ALJ granted the petition, concluding that the HOA Board’s unilateral amendment of the Bylaws on November 20, 2017, was an invalid action taken without the required vote of the Association members and without statutory notice, violating ARIZ. REV. STAT. § 33-1804(B) and the Association’s governing documents47. The amendment was invalidated, and the Respondent was ordered to refund the Petitioner’s filing fee and pay a $250.00 civil penalty56.”, “why_the_loss”: null }, “analytics”: { “cited”: [ “ARIZ. REV. STAT. § 33-1804(B)”, “ARIZ. REV. STAT. § 32-2199.02(A)”, “ARIZ. REV. STAT. § 32-2199.05”, “Powell v. Washburn, 125 P.3d 373 (Ariz. 2006)”, “Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)” ], “tags”: [ “HOA Governance”, “Bylaws Amendment”, “Open Meeting Law”, “ARS 33-1804”, “Membership Vote”, “Filing Fee Refund” ] } }
{ “rehearing”:{ “is_rehearing”:true, “base_case_id”:”19F-H1918001-REL”, “original_decision_status”:”affirmed”, “original_decision_summary”:”The original ALJ decision, issued on September 25, 2018, granted the Petitioner’s request, finding that the Sycamore Vista No. 8 Homeowners Association Board violated ARIZ. REV. STAT. § 33-1804(B) and Association Bylaws by unilaterally amending the Bylaws on November 20, 2017, without first calling for a vote by the Association members1,2,3. The order invalidated the amendment, required the Respondent to refund the Petitioner’s filing fee, and imposed a civil penalty of $250.004,5.”, “rehearing_decision_summary”:”The Department granted Respondent’s request for a rehearing, which was held on March 5, 20196,7. The ALJ affirmed the original decision, concluding that the Board’s action on November 20, 2017, violated ARIZ. REV. STAT. § 33-1804(B) and Article III of the Association Bylaws because the action was taken in the absence of a quorum of Association members voting in favor of the proposed amendment8. The rehearing order re-granted the petition, invalidated the third amendment, and reaffirmed the orders for the filing fee refund and the $250.00 civil penalty8,9.”, “issues_challenged”:[ { “issue_id”: “ISS-001”, “summary”: “Whether the HOA Board violated Association Bylaws Article III, Sections 3 & 4 and Article VIII, Section 1, and ARIZ. REV. STAT. § 33-1804(B) in an action taken to amend the Bylaws on November 20, 201710.”, “outcome”: “affirmed_petitioner_win” } ] } }
The matter, Jay A. Janicek vs. Sycamore Vista No. 8 Homeowners Association (Case No. 19F-H1918001-REL-RHG), involves a dispute over the validity of a Bylaw amendment passed by the homeowners’ association (HOA) Board of Directors12. The inclusion of ‘RHG’ in the case number confirms that the final decision resulted from a rehearing requested by the Respondent Association23.
Procedural History: The initial evidentiary hearing was held on September 5, 201824. The Administrative Law Judge (ALJ) issued a decision on September 24, 2018, granting the Petitioner’s request35. The Respondent requested and was granted a rehearing by the Department of Real Estate on November 7, 201836. The rehearing was held on March 5, 2019, where no new evidence was introduced, and the parties presented legal briefs and closing arguments2….
Key Facts and Core Issue: The dispute centered on the validity of the Board’s third amendment to the Association Bylaws, approved on November 20, 2017910. This amendment changed the financial oversight requirement from an annual audit by a public accountant to an annual audit, review, or compilation of financial records1112.
The main legal issue was whether the Board had the authority to unilaterally amend the Bylaws without a vote of the general membership and whether the Board violated ARIZ. REV. STAT. § 33-1804(B), concerning notice requirements for member meetings3…. The determination hinged on the interpretation of Bylaws Article XIII, Section 1, which permits amendments “by a vote of a majority of a quorum of members present in person or by proxy”1617.
Key Arguments: Petitioner Jay Janicek argued that the term “members” in Article XIII referred exclusively to the Association owners, as supported by the Bylaws’ definition of “Member” and the use of the term “proxy” (which applies to owners, not directors)14…. Petitioner asserted that since the Board acted without calling for a member vote and without statutory notice of the proposed amendment, the action was invalid and violated A.R.S. § 33-1804(B)14….
The Association argued that, based on reading the Bylaws in their entirety, the term “members” in Article XIII referred to the Board of Directors, particularly since the amendment was to occur at a meeting of the Board of Directors24….
Rehearing Decision and Outcome: In both the original decision and the rehearing decision, the ALJ reached the same conclusion, finding that the Petitioner sustained the burden of proof2728. The ALJ determined that the Association’s governing documents clearly differentiate between “members” (the body of owners) and “directors” (the elected Board)28…. The Board lacked the power to amend the Bylaws when that authority was delegated to the membership2930.
The ALJ concluded that the Board’s action on November 20, 2017, violated ARIZ. REV. STAT. § 33-1804(B) and Article III of the Association Bylaws because the amendment was adopted in the absence of a quorum of Association members voting in favor3132.
The final outcome of the rehearing was that the Petitioner’s petition was granted32. The Board’s third amendment to the Bylaws was invalidated532. Additionally, the Respondent Association was ordered to pay the Petitioner’s filing fee and a civil penalty of $250.00 for the violation533.
Case Participants
Petitioner Side
Jay A. Janicek(petitioner) Appeared on own behalf at initial hearing; Observed at rehearing.
Jake Kubert(petitioner attorney) Dessaules Law Group
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
19F-H1918001-REL
Agency
ADRE
Tribunal
OAH
Decision Date
2019-03-25
Administrative Law Judge
Jenna Clark
Outcome
total
Filing Fees Refunded
$500.00
Civil Penalties
$250.00
Parties & Counsel
Petitioner
Jay A. Janicek
Counsel
Jake Kubert
Respondent
Sycamore Vista No. 8 Homeowners Association
Counsel
Evan Thompson
Alleged Violations
ARIZ. REV. STAT. § 33-1804(B); Association Bylaws Article III, Sections 3 & 4; Association Bylaws Article VIII, Section 1
Outcome Summary
The ALJ granted the petition, concluding that the HOA Board’s unilateral amendment of the Bylaws on November 20, 2017, was an invalid action taken without the required vote of the Association members and without statutory notice, violating ARIZ. REV. STAT. § 33-1804(B) and the Association’s governing documents. The amendment was invalidated, and the Respondent was ordered to refund the Petitioner's filing fee and pay a $250.00 civil penalty.
Key Issues & Findings
Whether Sycamore Vista No. 8 Homeowners Association (Respondent) violated Association Bylaws Article III, Sections 3 & 4 and Article VIII, Section 1 in an action taken by the board on November 20, 2017.
The Board of Directors attempted a third amendment to the Bylaws on November 20, 2017, specifically changing the requirements for the Association's financial review (audit, review, or compilation). The ALJ concluded that this action was invalid because it was taken in the absence of a quorum of Association members voting in favor of the amendment, violating both the Bylaws and statutory notice requirements.
Orders: The petition was granted. The third amendment to the Association Bylaws taken on November 20, 2017, was invalidated. Respondent was ordered to pay the Petitioner the filing fee required by ARIZ. REV. STAT. § 32-2199.01 and pay a civil penalty of $250.00 to the Planned Community Hearing Office Fund.
Briefing Document: Janicek v. Sycamore Vista No. 8 Homeowners Association
Executive Summary
This document synthesizes the findings and legal conclusions from the administrative hearings regarding a dispute between Jay A. Janicek (“Petitioner”) and the Sycamore Vista No. 8 Homeowners Association (“Respondent” or “the Association”). The central issue was whether the Association’s Board of Directors acted outside its authority by unilaterally amending the Association’s Bylaws during a Board meeting on November 20, 2017, without a vote from the general membership.
The Administrative Law Judge (ALJ) determined that the Board’s action violated both the Association’s governing documents and Arizona Revised Statutes (A.R.S. § 33-1804). The ruling emphasized that the term “members” in the Bylaws refers specifically to the body of property owners, not the Board of Directors. Consequently, the third amendment to the Bylaws was invalidated, and the Association was ordered to pay a civil penalty and refund the Petitioner’s filing fees. A rehearing in March 2019 reconfirmed these findings, underscoring the necessity of transparency and membership participation in homeowners’ association governance.
The Department of Real Estate referred the matter to the Office of Administrative Hearings (OAH) following a petition filed by Mr. Janicek on July 25, 2018. The Respondent initially declined to present witnesses or exhibits, choosing to rely on a dispute over textual interpretation. Following an initial ruling in favor of the Petitioner, the Respondent requested a rehearing, which was granted but ultimately resulted in the same conclusion.
The Core Dispute: Bylaw Amendment Authority
The conflict arose from a Board meeting held on November 20, 2017. During this meeting, the Board voted to approve a third amendment to the Association’s Bylaws.
The Specific Amendment
The Board modified Article VIII, Section 6(d). The original text required the Board to:
• “…cause an annual audit of the Association books to be made by a public accountant at the completion of each fiscal year.”
The Board replaced this with language allowing for:
• “…an annual audit, review, or compilation of the Associations financial records to be made by a public accountant within 180 days after the end of the HOA’s fiscal year.”
Conflicting Interpretations of “Members”
The primary legal dispute centered on the interpretation of Bylaws Article XIII, Section 1, which states:
“These Bylaws may be amended at a regular or special meeting of the Board of Directors of the Association by a vote of a majority of a quorum of members present in person or by proxy.” (Emphasis added).
• Petitioner’s Position: “Members” refers to the general membership of the Association (property owners), as defined in Article II, Section 7 and the Declaration. Petitioner argued that the use of “proxy” in this section further proves it refers to members, as Board Directors are not permitted to vote by proxy.
• Respondent’s Position: “Members” refers to the members of the Board of Directors. The Association argued that because the word was not capitalized in Article XIII, it authorized the Board to amend Bylaws at their own meetings, provided a quorum of Directors was present.
Legal Analysis and Evidence
Governing Statutes and Case Law
The ALJ’s decision was informed by Arizona law and established legal principles:
• A.R.S. § 33-1804 (Open Meeting Law): This statute requires that notice of any meeting where a bylaw amendment is proposed must be sent to all members 10 to 50 days in advance. It also mandates that meetings of the board and association be open to all members.
• A.R.S. § 33-1804(F): The legislative intent of the Open Meeting Law is to promote transparency. Petitioner cited a message from Governor Ducey stating that such laws “provide residents the opportunity to resolve issues as a community rather than seek government intervention.”
• Powell v. Washburn (2006): The Arizona Supreme Court held that restrictive covenants (including Bylaws) must be interpreted to give effect to the intention of the parties based on the document in its entirety.
Findings of Fact regarding Authority
The ALJ identified several factors that invalidated the Board’s unilateral action:
1. Differentiated Terminology: The Bylaws consistently use “Directors” when referring to the Board and “Members” when referring to the homeowners. Article VI, Section 3 explicitly uses “Directors” to define a quorum for the Board, while Article XIII uses “members.”
2. Absence of Express Power: Article VII, which outlines the “Powers and Duties of the Board of Directors,” does not expressly grant the Board the authority to amend Bylaws. This power is reserved for the membership.
3. Lack of Notice: No Association members were present at the November 20, 2017, meeting, and no notice was provided to the general membership regarding a proposed amendment to the Bylaws as required by A.R.S. § 33-1804(B).
Conclusions of Law
The ALJ concluded that the Petitioner sustained the burden of proof by a preponderance of the evidence. The final legal determinations were:
• Avoidance of Absurdity: Bylaws must be construed to avoid an absurdity. The ALJ stated, “The voices of few cannot speak for all, unless all have bestowed those few with the power and authority to speak on their behalf.”
• Violation of Statute: The Board’s action violated A.R.S. § 33-1804(B) due to the lack of transparency and failure to provide notice of a bylaw amendment.
• Violation of Governing Documents: The Board acted outside the authority granted to it by the Bylaws, specifically Article III and Article XIII.
Final Order and Penalties
The Administrative Law Judge issued the following orders:
1. Invalidation: The third amendment to the Association Bylaws, enacted on November 20, 2017, is null and void.
2. Restitution of Fees: The Respondent must pay the Petitioner the cost of his filing fee.
3. Civil Penalty: The Respondent was ordered to pay a sum of $250.00 to the Planned Community Hearing Office Fund as a penalty for the violations.
4. Binding Nature: Following the rehearing, the order became binding, with the only further recourse being judicial review in the Superior Court within 35 days.
Study Guide – 19F-H1918001-REL-RHG
Study Guide: Janicek v. Sycamore Vista No. 8 Homeowners Association
This study guide provides a comprehensive review of the legal proceedings between Jay A. Janicek and the Sycamore Vista No. 8 Homeowners Association. It examines the interpretation of governing documents, the application of Arizona Revised Statutes regarding homeowners’ associations, and the limits of a Board of Directors’ authority to amend bylaws.
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Part I: Short-Answer Quiz
Instructions: Answer the following questions in two to three sentences based on the provided legal documents.
1. Who are the primary parties involved in this administrative hearing, and what is their relationship?
2. What specific action taken by the Board of Directors on November 20, 2017, triggered this dispute?
3. How did the Petitioner define the term “member” according to the Association’s governing documents?
4. What was the Respondent’s primary argument regarding the interpretation of Article XIII, Section 1 of the Bylaws?
5. According to ARIZ. REV. STAT. § 33-1804(B), what must a notice of a membership meeting include if a bylaw amendment is proposed?
6. Why did the Petitioner argue that the use of the word “proxy” in the Bylaws supported his interpretation that only general members could amend the Bylaws?
7. What is the legal significance of the Covenants, Conditions, and Restrictions (CC&Rs) in the context of the relationship between an HOA and a property owner?
8. What was the “preponderance of the evidence” standard used by the Administrative Law Judge to reach a decision?
9. What specific penalties and orders were issued against the Respondent in the final decision?
10. What reason did the Administrative Law Judge give for concluding that the Board’s interpretation of the Bylaws was incorrect?
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Part II: Answer Key
1. Who are the primary parties involved in this administrative hearing, and what is their relationship? The Petitioner is Jay A. Janicek, a property owner and member of the Sycamore Vista subdivision. The Respondent is the Sycamore Vista No. 8 Homeowners Association, the entity responsible for governing the residential development where the Petitioner’s property is located.
2. What specific action taken by the Board of Directors on November 20, 2017, triggered this dispute? The Board voted to approve a third amendment to the Association’s Bylaws during a regular meeting. This amendment replaced a requirement for a full annual audit by a public accountant with a choice of an audit, review, or compilation to be completed within 180 days of the fiscal year-end.
3. How did the Petitioner define the term “member” according to the Association’s governing documents? The Petitioner asserted that “Member” refers to those persons entitled to membership as defined in the Declaration, specifically every lot owner. He argued that this definition distinguishes general property owners from the “Directors” who serve on the Board.
4. What was the Respondent’s primary argument regarding the interpretation of Article XIII, Section 1 of the Bylaws? The Respondent argued that the term “members” in Article XIII referred specifically to members of the Board of Directors rather than the general membership. They contended that since the word was not capitalized, it authorized the Board to amend Bylaws at any meeting where a quorum of directors was present.
5. According to ARIZ. REV. STAT. § 33-1804(B), what must a notice of a membership meeting include if a bylaw amendment is proposed? The statute requires that notice be sent to every owner 10 to 50 days in advance of the meeting, stating the date, time, and place. Crucially, the notice must also state the purpose of the meeting, including the general nature of any proposed amendments to the declaration or bylaws.
6. Why did the Petitioner argue that the use of the word “proxy” in the Bylaws supported his interpretation that only general members could amend the Bylaws? The Petitioner noted that the Bylaws allow for voting by “proxy,” a mechanism defined in Article III as applying to votes of the general membership. He argued that because Board members are legally prohibited from voting by proxy, the inclusion of the term in the amendment section proved the section applied to general members.
7. What is the legal significance of the Covenants, Conditions, and Restrictions (CC&Rs) in the context of the relationship between an HOA and a property owner? The CC&Rs constitute an enforceable contract between the Association and each individual property owner. By purchasing a residential unit within the development, the buyer agrees to be bound by the terms, powers, and restrictions outlined in these recorded documents.
8. What was the “preponderance of the evidence” standard used by the Administrative Law Judge to reach a decision? This standard requires the Petitioner to prove that his contention is “more probably true than not.” It is defined as the greater weight of the evidence or evidence that possesses the most convincing force, rather than the absolute removal of all doubt.
9. What specific penalties and orders were issued against the Respondent in the final decision? The Administrative Law Judge invalidated the third amendment to the Bylaws and ordered the Respondent to pay a $250.00 civil penalty to the Planned Community Hearing Office Fund. Additionally, the Respondent was ordered to reimburse the Petitioner for his initial filing fee.
10. What reason did the Administrative Law Judge give for concluding that the Board’s interpretation of the Bylaws was incorrect? The Judge ruled that bylaws must be construed to avoid “absurdity” and that the “voices of few cannot speak for all” without express authority. The governing documents clearly differentiated between “members” (owners) and “directors,” and the Board lacked the power to act where authority was reserved for the membership.
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Part III: Essay Questions
Instructions: Use the provided source context to develop comprehensive responses to the following prompts.
1. The Distinction Between “Members” and “Directors”: Analyze how the specific terminology used in the Sycamore Vista No. 8 Bylaws (Articles II, III, VI, and XIII) influenced the Administrative Law Judge’s decision. How does the consistent use of these terms throughout the document prevent the Board from claiming the powers of the general membership?
2. Statutory Compliance and Transparency: Discuss the importance of ARIZ. REV. STAT. § 33-1804 (the Open Meeting Law) as it relates to this case. Use Governor Ducey’s message regarding H.B. 2411 to explain the legislative intent behind ensuring transparency and participation in HOA governance.
3. The Role of the Office of Administrative Hearings (OAH): Explain the procedural path of this dispute, from the initial petition to the Department of Real Estate to the final rehearing. What is the scope of the OAH’s authority in interpreting contracts between homeowners and associations?
4. Contractual Interpretation and the “Powell v. Washburn” Precedent: Discuss the significance of the Arizona Supreme Court’s holding in Powell v. Washburn regarding restrictive covenants. How does the requirement to give effect to the “intention of the parties” apply to the interpretation of HOA Bylaws?
5. Limits of Board Authority: Based on the Findings of Fact and Conclusions of Law, evaluate the boundaries of a Board of Directors’ power. Under what circumstances can a Board exercise “all powers, duties, and authority” of the Association, and what serves as the definitive limit to that power?
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Part IV: Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
A presiding officer who hears evidence and issues decisions in contested cases involving state agencies.
ARIZ. REV. STAT. § 33-1804
The Arizona statute governing open meetings, notice requirements, and transparency for planned community associations.
Bylaws
The internal rules and regulations that govern the administration and management of an association.
Covenants, Conditions, and Restrictions; the recorded legal documents that establish the rules for a planned community and create a contract between owners and the HOA.
Civil Penalty
A financial fine imposed by a government agency or tribunal as a punishment for a violation of statutes or regulations.
Declarant
The original developer or entity that established the residential subdivision and its governing documents.
Declaration
The primary governing document that defines membership and property rights within a homeowners’ association.
Member
Defined in the source context as a property owner within the Sycamore Vista subdivision who is entitled to membership in the Association.
The Office of Administrative Hearings; an independent state agency that conducts evidentiary hearings for contested cases.
Petitioner
The party who initiates a legal action or petition (in this case, Jay A. Janicek).
Preponderance of the Evidence
The legal standard of proof required in this case, meaning a contention is “more probably true than not.”
A written authorization allowing one person to act or vote on behalf of another, specifically used by Association members.
Quorum
The minimum number of members or directors required to be present at a meeting to legally transact business.
Respondent
The party against whom a legal action or petition is filed (in this case, Sycamore Vista No. 8 HOA).
Restrictive Covenants
Provisions in a deed or other recorded document that limit the use of property and are interpreted to give effect to the intention of the parties.
{
“case”: {
“docket_no”: “19F-H1918001-REL-RHG”,
“case_title”: “Jay A. Janicek, Petitioner, vs. Sycamore Vista No. 8 Homeowners Association (FKA New Tucson Unit No. 8 Homeowners Association, Inc.), Respondent.”,
“decision_date”: “March 25, 2019”,
“tribunal”: “OAH”,
“agency”: “ADRE”
},
“individuals”: [
{
“name”: “Jay A. Janicek”,
“role”: “petitioner”,
“side”: “petitioner”,
“affiliation”: null,
“notes”: “Appeared on his own behalf at initial hearing; observed rehearing.”
},
{
“name”: “Jenna Clark”,
“role”: “ALJ”,
“side”: “neutral”,
“affiliation”: “OAH”,
“notes”: null
},
{
“name”: “Evan Thompson”,
“role”: “HOA attorney”,
“side”: “respondent”,
“affiliation”: “Thompson Krone, P.L.C.”,
“notes”: null
},
{
“name”: “Dennis Legere”,
“role”: “observer”,
“side”: “unknown”,
“affiliation”: null,
“notes”: “Observer present at initial hearing.”
},
{
“name”: “Becky Nutt”,
“role”: “observer”,
“side”: “unknown”,
“affiliation”: null,
“notes”: “Observer present at initial hearing.”
},
{
“name”: “Caleb Rhodes”,
“role”: “observer”,
“side”: “unknown”,
“affiliation”: null,
“notes”: “Observer present at initial hearing.”
},
{
“name”: “Jake Kubert”,
“role”: “petitioner attorney”,
“side”: “petitioner”,
“affiliation”: “Dessaules Law Group”,
“notes”: “Appeared on behalf of Petitioner at rehearing.”
},
{
“name”: “Judy Lowe”,
“role”: “Commissioner”,
“side”: “neutral”,
“affiliation”: “ADRE”,
“notes”: null
},
{
“name”: “Andrew F. Vizcarra”,
“role”: “property manager”,
“side”: “respondent”,
“affiliation”: “Tucson Realty & Trust Co. Management”,
“notes”: “Listed as representative for service of process for Respondent HOA.”
},
{
“name”: “Maxwell T. Riddiough”,
“role”: “HOA attorney”,
“side”: “respondent”,
“affiliation”: “Thompson Krone, P.L.C.”,
“notes”: null
}
]
}
{ “case”: { “agency”: “ADRE”, “tribunal”: “OAH”, “docket_no”: “19F-H1918001-REL”, “case_title”: “Jay A. Janicek vs. Sycamore Vista No. 8 Homeowners Association”, “decision_date”: “2019-03-25”, “alj_name”: “Jenna Clark” }, “parties”: [ { “party_id”: “P1”, “role”: “petitioner”, “name”: “Jay A. Janicek”, “party_type”: “homeowner”, “email”: null, “phone”: null, “attorney_name”: “Jake Kubert”, “attorney_firm”: “Dessaules Law Group”, “attorney_email”: null, “attorney_phone”: null }, { “party_id”: “R1”, “role”: “respondent”, “name”: “Sycamore Vista No. 8 Homeowners Association”, “party_type”: “HOA”, “email”: null, “phone”: null, “attorney_name”: “Evan Thompson”, “attorney_firm”: “Thompson Krone, P.L.C.”, “attorney_email”: null, “attorney_phone”: null } ], “issues”: [ { “issue_id”: “ISS-001”, “type”: “statute_and_bylaws”, “citation”: “ARIZ. REV. STAT. § 33-1804(B); Association Bylaws Article III, Sections 3 & 4; Association Bylaws Article VIII, Section 1”, “caption”: “Whether Sycamore Vista No. 8 Homeowners Association (Respondent) violated Association Bylaws Article III, Sections 3 & 4 and Article VIII, Section 1 in an action taken by the board on November 20, 2017.”, “violation(s)”: “Violation of ARIZ. REV. STAT. § 33-1804(B) and Association Bylaws Article III by amending the Bylaws on November 20, 2017, without proper notice and a vote of the Association membership.”, “summary”: “The Board of Directors attempted a third amendment to the Bylaws on November 20, 2017, specifically changing the requirements for the Association’s financial review (audit, review, or compilation)12. The ALJ concluded that this action was invalid because it was taken in the absence of a quorum of Association members voting in favor of the amendment, violating both the Bylaws and statutory notice requirements34.”, “outcome”: “petitioner_win”, “filing_fee_paid”: 500.0, “filing_fee_refunded”: true, “civil_penalty_amount”: 250.0, “orders_summary”: “The petition was granted. The third amendment to the Association Bylaws taken on November 20, 2017, was invalidated. Respondent was ordered to pay the Petitioner the filing fee required by ARIZ. REV. STAT. § 32-2199.01 and pay a civil penalty of $250.00 to the Planned Community Hearing Office Fund56.”, “why_the_loss”: null, “cited”: [ “ARIZ. REV. STAT. § 33-1804(B)”, “Association Bylaws Article III” ] } ], “money_summary”: { “issues_count”: 1, “total_filing_fees_paid”: 500.0, “total_filing_fees_refunded”: 500.0, “total_civil_penalties”: 250.0 }, “outcomes”: { “petitioner_is_hoa”: false, “petitioner_win”: “total”, “summarize_judgement”: “The ALJ granted the petition, concluding that the HOA Board’s unilateral amendment of the Bylaws on November 20, 2017, was an invalid action taken without the required vote of the Association members and without statutory notice, violating ARIZ. REV. STAT. § 33-1804(B) and the Association’s governing documents47. The amendment was invalidated, and the Respondent was ordered to refund the Petitioner’s filing fee and pay a $250.00 civil penalty56.”, “why_the_loss”: null }, “analytics”: { “cited”: [ “ARIZ. REV. STAT. § 33-1804(B)”, “ARIZ. REV. STAT. § 32-2199.02(A)”, “ARIZ. REV. STAT. § 32-2199.05”, “Powell v. Washburn, 125 P.3d 373 (Ariz. 2006)”, “Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)” ], “tags”: [ “HOA Governance”, “Bylaws Amendment”, “Open Meeting Law”, “ARS 33-1804”, “Membership Vote”, “Filing Fee Refund” ] } }
{ “rehearing”:{ “is_rehearing”:true, “base_case_id”:”19F-H1918001-REL”, “original_decision_status”:”affirmed”, “original_decision_summary”:”The original ALJ decision, issued on September 25, 2018, granted the Petitioner’s request, finding that the Sycamore Vista No. 8 Homeowners Association Board violated ARIZ. REV. STAT. § 33-1804(B) and Association Bylaws by unilaterally amending the Bylaws on November 20, 2017, without first calling for a vote by the Association members1,2,3. The order invalidated the amendment, required the Respondent to refund the Petitioner’s filing fee, and imposed a civil penalty of $250.004,5.”, “rehearing_decision_summary”:”The Department granted Respondent’s request for a rehearing, which was held on March 5, 20196,7. The ALJ affirmed the original decision, concluding that the Board’s action on November 20, 2017, violated ARIZ. REV. STAT. § 33-1804(B) and Article III of the Association Bylaws because the action was taken in the absence of a quorum of Association members voting in favor of the proposed amendment8. The rehearing order re-granted the petition, invalidated the third amendment, and reaffirmed the orders for the filing fee refund and the $250.00 civil penalty8,9.”, “issues_challenged”:[ { “issue_id”: “ISS-001”, “summary”: “Whether the HOA Board violated Association Bylaws Article III, Sections 3 & 4 and Article VIII, Section 1, and ARIZ. REV. STAT. § 33-1804(B) in an action taken to amend the Bylaws on November 20, 201710.”, “outcome”: “affirmed_petitioner_win” } ] } }
The matter, Jay A. Janicek vs. Sycamore Vista No. 8 Homeowners Association (Case No. 19F-H1918001-REL-RHG), involves a dispute over the validity of a Bylaw amendment passed by the homeowners’ association (HOA) Board of Directors12. The inclusion of ‘RHG’ in the case number confirms that the final decision resulted from a rehearing requested by the Respondent Association23.
Procedural History: The initial evidentiary hearing was held on September 5, 201824. The Administrative Law Judge (ALJ) issued a decision on September 24, 2018, granting the Petitioner’s request35. The Respondent requested and was granted a rehearing by the Department of Real Estate on November 7, 201836. The rehearing was held on March 5, 2019, where no new evidence was introduced, and the parties presented legal briefs and closing arguments2….
Key Facts and Core Issue: The dispute centered on the validity of the Board’s third amendment to the Association Bylaws, approved on November 20, 2017910. This amendment changed the financial oversight requirement from an annual audit by a public accountant to an annual audit, review, or compilation of financial records1112.
The main legal issue was whether the Board had the authority to unilaterally amend the Bylaws without a vote of the general membership and whether the Board violated ARIZ. REV. STAT. § 33-1804(B), concerning notice requirements for member meetings3…. The determination hinged on the interpretation of Bylaws Article XIII, Section 1, which permits amendments “by a vote of a majority of a quorum of members present in person or by proxy”1617.
Key Arguments: Petitioner Jay Janicek argued that the term “members” in Article XIII referred exclusively to the Association owners, as supported by the Bylaws’ definition of “Member” and the use of the term “proxy” (which applies to owners, not directors)14…. Petitioner asserted that since the Board acted without calling for a member vote and without statutory notice of the proposed amendment, the action was invalid and violated A.R.S. § 33-1804(B)14….
The Association argued that, based on reading the Bylaws in their entirety, the term “members” in Article XIII referred to the Board of Directors, particularly since the amendment was to occur at a meeting of the Board of Directors24….
Rehearing Decision and Outcome: In both the original decision and the rehearing decision, the ALJ reached the same conclusion, finding that the Petitioner sustained the burden of proof2728. The ALJ determined that the Association’s governing documents clearly differentiate between “members” (the body of owners) and “directors” (the elected Board)28…. The Board lacked the power to amend the Bylaws when that authority was delegated to the membership2930.
The ALJ concluded that the Board’s action on November 20, 2017, violated ARIZ. REV. STAT. § 33-1804(B) and Article III of the Association Bylaws because the amendment was adopted in the absence of a quorum of Association members voting in favor3132.
The final outcome of the rehearing was that the Petitioner’s petition was granted32. The Board’s third amendment to the Bylaws was invalidated532. Additionally, the Respondent Association was ordered to pay the Petitioner’s filing fee and a civil penalty of $250.00 for the violation533.
Case Participants
Petitioner Side
Jay A. Janicek(petitioner) Appeared on own behalf at initial hearing; Observed at rehearing.
Jake Kubert(petitioner attorney) Dessaules Law Group
ARIZ. REV. STAT. § 33-1804(B); Association Bylaws Article III, Sections 3 & 4; Association Bylaws Article VIII, Section 1
Outcome Summary
The ALJ granted the petition, concluding that the HOA Board’s unilateral amendment of the Bylaws on November 20, 2017, was an invalid action taken without the required vote of the Association members and without statutory notice, violating ARIZ. REV. STAT. § 33-1804(B) and the Association’s governing documents. The amendment was invalidated, and the Respondent was ordered to refund the Petitioner's filing fee and pay a $250.00 civil penalty.
Key Issues & Findings
Whether Sycamore Vista No. 8 Homeowners Association (Respondent) violated Association Bylaws Article III, Sections 3 & 4 and Article VIII, Section 1 in an action taken by the board on November 20, 2017.
The Board of Directors attempted a third amendment to the Bylaws on November 20, 2017, specifically changing the requirements for the Association's financial review (audit, review, or compilation). The ALJ concluded that this action was invalid because it was taken in the absence of a quorum of Association members voting in favor of the amendment, violating both the Bylaws and statutory notice requirements.
Orders: The petition was granted. The third amendment to the Association Bylaws taken on November 20, 2017, was invalidated. Respondent was ordered to pay the Petitioner the filing fee required by ARIZ. REV. STAT. § 32-2199.01 and pay a civil penalty of $250.00 to the Planned Community Hearing Office Fund.
Topics: HOA Governance, Bylaws Amendment, Open Meeting Law, ARS 33-1804, Membership Vote, Filing Fee Refund
Additional Citations:
ARIZ. REV. STAT. § 33-1804(B)
ARIZ. REV. STAT. § 32-2199.02(A)
ARIZ. REV. STAT. § 32-2199.05
Powell v. Washburn, 125 P.3d 373 (Ariz. 2006)
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Video Overview
Audio Overview
Decision Documents
19F-H1918001-REL Decision – 661797.pdf
Uploaded 2026-01-23T17:25:37 (143.2 KB)
19F-H1918001-REL Decision – 696205.pdf
Uploaded 2026-01-23T17:25:40 (169.8 KB)
Briefing Doc – 19F-H1918001-REL
Briefing Document: Janicek v. Sycamore Vista No. 8 Homeowners Association
Executive Summary
This document provides a comprehensive analysis of the Administrative Law Judge (ALJ) Decision in the case of Jay A. Janicek v. Sycamore Vista No. 8 Homeowners Association (No. 19F-H1918001-REL-RHG). The central issue was the validity of a bylaw amendment enacted by the Association’s Board of Directors on November 20, 2017, without a vote of the general homeowner membership.
The ALJ ruled decisively in favor of the Petitioner, Jay Janicek, finding that the Board’s action was invalid. The decision hinged on a critical interpretation of the Association’s governing documents, concluding that the term “members” in the context of bylaw amendments unambiguously refers to the homeowner membership, not the Board of Directors. The ruling established that the Board does not have the authority to amend bylaws where that power is reserved for the membership.
Furthermore, the ALJ concluded that the Board’s action violated Arizona’s Open Meeting Law (A.R.S. § 33-1804) by failing to provide the required notice to homeowners for a meeting concerning a proposed bylaw amendment. As a result, the amendment was invalidated, and the Association was ordered to pay the Petitioner’s filing fee and a civil penalty of $250.
Case Background and Procedural History
Parties and Jurisdiction
• Petitioner: Jay A. Janicek, a property owner within the Sycamore Vista subdivision and a member of the Respondent Association.
• Respondent: Sycamore Vista No. 8 Homeowners Association (“the Association”), a homeowners’ association in Tucson, Arizona, governed by its Covenants, Conditions, and Restrictions (CC&Rs) and overseen by a Board of Directors.
• Adjudicating Body: The Arizona Office of Administrative Hearings (OAH), an independent state agency, which received the case on referral from the Arizona Department of Real Estate.
The Central Dispute
The core of the dispute was an action taken by the Association’s Board of Directors during a regular meeting on November 20, 2017. At this meeting, the Board, with three of five directors present, voted to approve a third amendment to the Association’s Bylaws. The amendment altered Article VIII Section 6(d), changing the requirement for an annual financial check from:
“cause an annual audit of the Association books to be made by a public accountant at the completion of each fiscal year”
“cause an annual audit, review, or compilation of the Associations financial records to be made by a public accountant within 180 days after the end of the HOA’s fiscal year.”
The Petitioner contended this action was invalid because it was undertaken without a vote of the general Association membership, as he believed the governing documents required.
Timeline of Adjudication
1. July 25, 2018: Petitioner files a petition with the Arizona Department of Real Estate.
2. September 05, 2018: An initial evidentiary hearing is held before the OAH.
3. September 25, 2018: The OAH issues an ALJ Decision in the Petitioner’s favor.
4. October 23, 2018: The Respondent submits a Request for Rehearing.
5. November 07, 2018: The Department grants the rehearing request and refers the matter back to the OAH.
6. March 05, 2019: A rehearing is conducted, based on legal briefs and closing arguments without new evidence.
7. March 25, 2019: The final ALJ Decision is issued, reaffirming the initial ruling in favor of the Petitioner.
Analysis of Governing Documents and Statutes
The case decision rested on the interpretation of specific articles within the Association’s Bylaws and relevant Arizona state statutes.
Key Bylaw Provisions
Article
Section
Description
Article IV
Section 1
States that the “affairs of this Association shall be managed by a Board of not less than three (3) nor more than five (5) directors.”
Article VI
Section 1
Establishes that regular meetings of the Board of Directors shall be held monthly without notice.
Article VI
Section 2
Governs special meetings of the Board, requiring not less than three days’ notice to each Director.
Article VI
Section 3
Defines a quorum for Board meetings as “a majority of the number of Directors.”
Article VII
Section 1
Outlines the Powers and Duties of the Board of Directors. This section does not explicitly grant the Board the power to amend the Bylaws.
Article XIII
Section 1
(The central provision in the dispute) States: “These Bylaws may be amended at a regular or special meeting of the Board of Directors of the Association by a vote of a majority of a quorum of members present in person or by proxy.”
Relevant Arizona Statutes
• A.R.S. § 33-1804 (Open Meeting Law): This statute was central to the Petitioner’s argument and the ALJ’s final decision.
◦ Subsection (A): Requires that all meetings of the members’ association and the board of directors be open to all members of the association.
◦ Subsection (B): Mandates specific notice requirements for any meeting of the members, stating that notice “shall also state the purpose for which the meeting is called, including the general nature of any proposed amendment to the declaration or bylaws.”
◦ Subsection (F): The ALJ noted that this section codifies the legislative intent of the statute, which, as cited from a Governor’s message, is to “promote transparency and participation for all residents in homeowners’ association governance.”
Arguments of the Parties
Petitioner’s Position (Jay Janicek)
The Petitioner’s case was built on a textual interpretation of the Bylaws and adherence to state law.
• Interpretation of “Members”: The Petitioner argued that the word “members” in Article XIII, Section 1 refers to the general homeowner membership of the Association, not the members of the Board of Directors.
• Textual Differentiation: The drafters of the Bylaws intentionally used the words “members” and “directors” distinctly throughout the document. Where the intent was to refer to the Board, the word “Director” was specifically used (e.g., Article VI).
• Proxy Voting: The inclusion of the term “proxy” in Article XIII supports the argument that the vote is for the general membership, as Board members are not permitted to vote by proxy.
• Lack of Explicit Power: Article VII, which details the Board’s powers, does not grant the authority to amend the Bylaws, implying such power is reserved for the membership.
• Statutory Violation: The Board’s action violated A.R.S. § 33-1804 because the required notice for a meeting concerning a bylaw amendment was not provided to the general membership.
• Legal Precedent: The Petitioner cited Powell v. Washburn, an Arizona Supreme Court case holding that restrictive covenants (which he argued include the Bylaws) should be interpreted to give effect to the intention of the parties as determined from the entire document.
Respondent’s Position (Sycamore Vista No. 8 HOA)
The Association argued that its actions were a valid exercise of the Board’s authority.
• Broad Authority: The Respondent cited Article IV, which states the “affairs of this Association shall be managed by a Board,” to assert its general authority.
• Valid Board Meeting: The amendment occurred at a regular monthly Board meeting as allowed by Article VI. The meeting had three directors present, which constituted a valid quorum for transacting business.
• Interpretation of Article XIII: The Respondent argued that the phrase “at a regular or special meeting of the Board of Directors” in Article XIII indicates that the Board is the body empowered to make the amendment, and the word “members” in that context refers to the members of the Board.
• No Open Meeting Law Violation: The Respondent contended its conduct was not a violation because the action occurred during a regular Board meeting with a proper quorum of directors.
Administrative Law Judge’s Decision and Rationale
The ALJ’s conclusions were unequivocal, fully adopting the Petitioner’s interpretation of the governing documents and state law.
Conclusions of Law
• Burden of Proof: The ALJ found that the Petitioner successfully sustained his burden of proving by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1804.
• Interpretation of “Members” vs. “Directors”: The decision states that the governing documents are clear: “‘members’ refers to the body of owners who make up the membership of the Association, and ‘directors’ refers to the few who are elected to the membership’s Board.” The ALJ found the differentiation to be intentional by the drafters.
• Avoiding Absurdity: The decision holds that construing the Bylaws to allow the Board to amend them would create an absurdity. The ALJ wrote, “The voices of few cannot speak for all, unless all have bestowed those few with the power and authority to speak on their behalf.”
• Violation of Statute and Bylaws: The ALJ concluded that the Board’s action on November 20, 2017, violated both A.R.S. § 33-1804(B) due to a lack of notice and Article III of the Association Bylaws.
• Rejection of Respondent’s Argument: The decision explicitly states, “The Tribunal is not swayed by Respondent’s closing arguments.”
Final Order
Based on the findings and conclusions, the ALJ issued the following binding order:
1. Petition Granted: The Petitioner’s petition was officially granted.
2. Amendment Invalidated: The third amendment to the Association Bylaws, as enacted on November 20, 2017, was invalidated.
3. Fees and Penalties: The Respondent was ordered to pay the Petitioner’s filing fee and a civil penalty of $250.00 to the Planned Community Hearing Office Fund.
Study Guide – 19F-H1918001-REL
Study Guide: Janicek v. Sycamore Vista No. 8 Homeowners Association
Short-Answer Quiz
1. Who were the primary parties in the case No. 19F-H1918001-REL-RHG, and what were their respective roles?
2. What specific action taken by the Respondent on November 20, 2017, prompted the Petitioner to file a complaint?
3. According to the Petitioner, what was the crucial difference in meaning between the terms “members” and “directors” as used in the Association’s Bylaws?
4. What was the Respondent’s central argument for why the Board of Directors had the authority to amend the Bylaws at its regular meeting?
5. What is Arizona’s Open Meeting Law, and how did the Petitioner argue that the Respondent violated it?
6. What was the financial concern that the Petitioner argued could potentially impact him as a homeowner due to the Board’s amendment?
7. Describe the procedural history of this case after the initial Administrative Law Judge (ALJ) Decision on September 25, 2018.
8. What case did the Petitioner cite regarding the interpretation of restrictive covenants, and what principle did it establish?
9. What is the legal standard of proof required in this proceeding, and how is it defined in the document?
10. What was the final outcome of the case, including the specific orders issued by the Administrative Law Judge?
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Answer Key
1. The primary parties were Jay A. Janicek, the Petitioner, and the Sycamore Vista No. 8 Homeowners Association, the Respondent. The Petitioner is a property owner and member of the Association who brought the legal action, while the Respondent is the homeowners’ association governed by a Board of Directors.
2. On November 20, 2017, the Respondent’s Board of Directors held a regular meeting where they voted to approve a third amendment to the Association’s Bylaws. This amendment changed the requirement for an “annual audit…by a public accountant” to an “annual audit, review, or compilation” of financial records.
3. The Petitioner argued that the term “members” in Article XIII of the Bylaws refers to the entire body of property owners in the Association, not the Board of Directors. He contended that if the drafter had intended to give amendment power to the Board, the specific word “directors” would have been used, as it was in other sections of the Bylaws.
4. The Respondent argued that its actions were proper because the Bylaws empower the Board to manage the Association’s affairs at regular monthly meetings. They contended that since a quorum of three directors was present at the November 20, 2017 meeting, the Board was empowered to transact business, which they interpreted to include amending the bylaws as described in Article XIII.
5. Arizona’s Open Meeting Law is ARIZ. REV. STAT. § 33-1804, which requires meetings of a homeowners’ association’s board and members to be open to all members. The Petitioner argued the Respondent violated this by amending a bylaw without proper notice to the full membership, which is required for any proposed bylaw amendment, thus undermining the law’s legislative intent of transparency.
6. The Petitioner was concerned that the amendment weakened the financial oversight of the Association. It modified a requirement for a third-party audit to a less stringent “review, or compilation,” creating a risk that the Association could perform its own financial checks, and as a homeowner, he had an interest in ensuring the Association’s financials were correct.
7. After the initial decision in the Petitioner’s favor on September 25, 2018, the Respondent submitted a Request for Rehearing on October 23, 2018. The Department of Real Estate granted this request on November 7, 2018, and the matter was referred back to the Office of Administrative Hearings for a rehearing, which ultimately took place on March 5, 2019.
8. The Petitioner cited Powell v. Washburn. This case established the principle that restrictive covenants should be interpreted to give effect to the intention of the parties, as determined from the language of the entire document and the purpose for which the covenants were created.
9. The legal standard of proof was a “preponderance of the evidence.” The document defines this as “such proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with the most “convincing force” that inclines an impartial mind to one side of an issue.
10. The final outcome was a ruling in favor of the Petitioner. The ALJ granted the petition, invalidated the third amendment to the Bylaws that was passed on November 20, 2017, and ordered the Respondent to pay the Petitioner’s filing fee and a civil penalty of $250.00.
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Essay Questions
1. Analyze the Administrative Law Judge’s reasoning in differentiating between the terms “members” and “directors.” How did the principle of avoiding absurdity and considering the drafter’s intent, as seen throughout the Bylaws, contribute to the final decision?
2. Discuss the interplay between the Association’s governing documents (CC&Rs and Bylaws) and state law (ARIZ. REV. STAT. § 33-1804). Explain which authority took precedence in this case and why the Board’s actions were found to violate both.
3. Evaluate the legal strategy employed by the Petitioner, Jay A. Janicek. Consider his use of specific Bylaw articles, the citation of Powell v. Washburn, and his argument regarding the legislative intent of the Open Meeting Law.
4. Examine the arguments presented by the Respondent, Sycamore Vista No. 8 Homeowners Association. Why did the Judge find their interpretation of the Bylaws unconvincing, despite their claims that the Board was empowered to transact business with a quorum present?
5. Based on the text, discuss the broader implications of this ruling for homeowners’ associations in Arizona. How does this decision reinforce the principles of transparency and the limitations of a Board’s power relative to the association’s general membership?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge, in this case Jenna Clark, who presides over administrative hearings at the Office of Administrative Hearings (OAH).
ARIZ. REV. STAT. § 33-1804
A section of the Arizona Revised Statutes, also known as Arizona’s Open Meeting Law, which mandates that meetings of an HOA’s members and board of directors must be open to all members and requires specific notice for meetings where bylaw amendments will be considered.
Bylaws
A set of rules that govern the internal operations of the homeowners’ association. In this case, key articles discussed include Article VI (Meeting of Directors), Article VII (Powers of the Board), and Article XIII (Amendments).
Covenants, Conditions, and Restrictions. These are governing documents that form an enforceable contract between the Association and each property owner, empowering the Association to control certain aspects of property use.
Member
As defined in the Association’s documents, a person entitled to membership by virtue of being a property owner within the Sycamore Vista subdivision. The Judge concluded this term refers to the body of owners, not the Board of Directors.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona, unaffiliated with the parties, responsible for conducting evidentiary hearings and making legal decisions in disputes like this one.
Petitioner
The party who files a petition initiating a legal case. In this matter, the Petitioner was Jay A. Janicek, a homeowner in the Association.
Preponderance of the evidence
The burden of proof in this case. It is defined as evidence that is more likely true than not and has the most convincing force, sufficient to incline a fair and impartial mind to one side of an issue.
The authority to represent someone else, especially in voting. The document notes that the term “proxy” applies to votes of the members, as members of the Board are not permitted to vote by proxy.
Quorum
The minimum number of members of a deliberative assembly necessary to conduct the business of that group. For the Respondent’s Board of Directors, a quorum is defined as a majority of the number of Directors.
Respondent
The party against whom a petition is filed. In this matter, the Respondent was the Sycamore Vista No. 8 Homeowners Association.
Restrictive Covenants
Legal obligations imposed in a deed to real property to do or not do something. The Petitioner argued this term included the CC&Rs, Bylaws, and rules of the Association.
Tribunal
A body established to settle certain types of dispute. In this document, it refers to the Administrative Law Judge at the Office of Administrative Hearings.
Blog Post – 19F-H1918001-REL
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19F-H1918001-REL-RHG
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The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between Jay A. Janicek (Petitioner) and the Sycamore Vista No. 8 Homeowners Association (Respondent). The core issue of the case, designated No. 19F-H1918001-REL-RHG, revolves around whether the Homeowners Association violated its Bylaws and Arizona state statute (§ 33-1804) when its Board of Directors unilaterally amended the Bylaws on November 20, 2017. The Administrative Law Judge determined that the Board’s action was invalid because the power to amend the Bylaws was delegated to the Association’s general membership, not the Board of Directors, and the Board failed to provide the required notice for such an amendment. Consequently, the Petitioner’s request was granted, the amendment was invalidated, and the Association was ordered to pay the Petitioner’s filing fee and a civil penalty.
What central conflict drove the administrative hearing and subsequent rehearing process?
How did governing documents and Arizona statutes shape the final legal decision?
What ultimate implications does this ruling have for homeowners association governance and member rights?
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Case Participants
Petitioner Side
Jay A. Janicek(petitioner) Appeared on his own behalf at initial hearing; Observed rehearing
Jake Kubert(petitioner attorney) Dessaules Law Group Appeared at rehearing
