Case Details

– Petitioner: Nicole Armsby (NICDON 10663 LLC)
– Respondent: Desert Mountain Master Association
– Case Number: Not provided in the extract.
– Date and Time of Hearing: August 30, 2021 (Hearing Date); August 17, 2021 (Date of actual hearing), Not specified in the extract.
– Judge’s Name: Velva Moses-Thompson
– Petitioner Success: No, the petitioner was not successful.

Case Description

This case involved a petition filed by Nicole Armsby, who represented herself and her interests as the owner of property within the Desert Mountain Community in Scottsdale, Arizona. The respondent, Desert Mountain Master Association (the Association), is a homeowners’ association comprised of members who own property in the same community.

Armsby was involved in ongoing litigation with the Association concerning an amendment to the Covenants, Conditions, and Restrictions (CC&Rs) that restricts short-term rentals within the community. Her petition stemmed from the Association’s alleged refusal to provide access to certain documents and communications related to a program known as “Operation Quick and Secure Entry,” which is a keyless entry initiative requiring the scanning and storage of identification before allowing access to the community.

Armsby initially contacted Kevin C. Pollock, the Association’s Executive Director, on April 21, 2021, and followed up with a formal records request on May 14, 2021, for documentation including Board meeting minutes and other communications essential to understand the implementation of the keyless entry program. However, the Association redirected communications to their attorney due to the existing litigation.

The Association contended they were not obligated to fulfill Armsby’s request, citing attorney-client privilege and the relevance of the requested information to the pending litigation concerning the CC&Rs’ prohibition of short-term rentals. In response, Armsby filed a single-issue petition with the Arizona Department of Real Estate alleging that the Association violated A.R.S. § 33-1805 and relevant sections of the CC&Rs and Bylaws by withholding access to the requested records.

During the hearing held on August 17, 2021, Armsby presented her testimony and supporting exhibits, while the Association’s representative provided a counter testimony claiming that the refusal to disclose the information was valid based on the ongoing litigation.

The Administrative Law Judge, Velva Moses-Thompson, ultimately determined that the Association was permitted to withhold the requested records based on the nature of the ongoing litigation and concluded that Armsby did not prove that the Association violated the law or CC&Rs. Consequently, the judge ruled in favor of the respondent, dismissing Armsby’s petition and designating the Association as the prevailing party in this matter. The ruling was communicated to all parties involved on September 7, 2021, and emphasized that the order would be binding unless a rehearing was requested within a specified period.

Analysis Of The Outcome

Outcome: Petitioner Nicole Armsby’s petition was dismissed, with the Respondent, Desert Mountain Master Association, prevailing in this administrative hearing.

Reason for Loss: The Administrative Law Judge (ALJ) found that the Respondent was justified in withholding the requested documents related to the “Operation Quick and Secure Entry” because of the ongoing litigation between Armsby and the Respondent regarding the CC&Rs prohibiting short-term rentals. Specifically, A.R.S. § 33-1805 and the governing documents of the Association allow withholding of records that relate to ongoing litigation.

The ALJ determined that the keyless entry program was intrinsically linked to the nature of the litigation, as it pertains to the access of renters—who were the subject of the CC&Rs amendment concerning rental prohibitions.

Legal Citations

– A.R.S. § 33-1805 outlines the obligation of homeowners’ associations to make records available to members while also stipulating that records related to ongoing litigation may be withheld.
– The CC&Rs and Bylaws of the Association included provisions to withhold specific records from the membership that pertained to privileged communication and pending litigation.

Recommendations For The Petitioner

1. Filing Requests Clear of Litigation Context: The petitioner should have framed their request so that it clearly articulated a basis for why the records were not related to the ongoing ongoing litigation. This could have involved specifying the broader community implications of the keyless entry program separate from rental issues.

2. Documentation Skills: More thorough documentation of past correspondence, and responses or lack thereof, is crucial in establishing a paper trail supporting the entitlement to documents.

3. Alternative Legal Action: If a public records request had been dismissed on the grounds of pending litigation, the petitioner could consider filing for a declaratory judgment on the issue to compel the association to release the documents.

4. Understanding Rules of Evidence: Familiarizing oneself with the implications of attorney-client privilege and laws governing privileged communication can help in framing arguments more effectively.

General Advice For Similar Cases

– Ensure that requests for records are explicitly separated from any ongoing legal matters unless absolutely necessary.

– When drafting requests, cite specific laws or articles in your association’s documents that support your claim for access to records, providing a narrative based on transparency and community interest.

– Be prepared to negotiate with the association’s legal counsel and be open to dialogue, which could facilitate access to some records without stepping into litigative territory.

– Always provide a clear rationale for the necessity of documents sought in regards to community governance and public interest, rather than personal gain, to strengthen the basis for your request.

This case serves as a reminder that the interplay between ongoing litigation and requests for records can complicate matters significantly. Understanding the legislative framework, maintaining thorough documentation, and communicating effectively can make a substantial difference in outcomes for similar disputes in the future.