Tag Archives: HOA Governance

Sandra Swanson & Robert Barnes v. Circle G Ranches 4 Homeowners

Posted on by

Case Summary

Case ID 21F-H2120020-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2022-02-02
Administrative Law Judge Jenna Clark
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Sandra Swanson & Robert Barnes Counsel Kristin Roebuck Bethell, Esq.
Respondent Circle G Ranches 4 Homeowners Association Counsel Samantha Cote, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1805

Outcome Summary

The Administrative Law Judge denied the Petitioners' petition, concluding they failed to prove by a preponderance of the evidence that the Homeowners Association violated ARIZ. REV. STAT. § 33-1805 regarding the availability of voting records.

Why this result: Petitioners failed to demonstrate that the HOA violated the statute through its NDA request or its method of providing the records (redacted ballots and separate unredacted envelopes) and failed to prove the records were not made reasonably available within the required statutory time frame.

Key Issues & Findings

Failure to comply with voting records request (regarding assessment and cumulative voting records)

Petitioners alleged the Association violated ARIZ. REV. STAT. § 33-1805 by requiring an NDA and providing redacted ballots and separate unredacted envelopes, which prevented Petitioners from cross-referencing votes with voters. Respondent argued it timely provided the totality of the requested information and that the manner of delivery did not violate the statute.

Orders: Petitioners' petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199.02(B)
  • ARIZ. REV. STAT. § 41-1092.08(H)
  • ARIZ. REV. STAT. § 12-904(A)
  • ARIZ. ADMIN. CODE R2-19-119

Analytics Highlights

Topics: Records Request, HOA Governance, Statute Violation, Voting Records, Non-Disclosure Agreement (NDA)
Additional Citations:

  • ARIZ. REV. STAT. § 33-1805

Audio Overview

Decision Documents

21F-H2120020-REL Decision – 944169.pdf

Uploaded 2025-10-09T03:36:22 (184.1 KB)

21F-H2120020-REL Decision – 944171.pdf

Uploaded 2025-10-09T03:36:22 (184.1 KB)





Briefing Doc – 21F-H2120020-REL


Briefing Document: Swanson & Barnes v. Circle G Ranches 4 HOA

Executive Summary

This document synthesizes the findings from the Administrative Law Judge (ALJ) Decision in case number 21F-H2120020-REL-RHG, a dispute between homeowners Sandra Swanson & Robert Barnes (“Petitioners”) and the Circle G Ranches 4 Homeowners Association (“Respondent”). The core issue was whether the Association violated Arizona Revised Statutes (ARIZ. REV. STAT.) § 33-1805 by its handling of the Petitioners’ request for voting records.

The Petitioners alleged the Association failed to make records “reasonably available” by providing redacted ballots and separate, unredacted envelopes, a method that prevented them from matching specific votes to individual homeowners. They argued this, along with an initial request to sign a nondisclosure agreement (NDA), constituted an unlawful barrier to access.

The Association countered that it had a duty to balance the Petitioners’ request with the privacy and safety of its members, citing concerns about potential harassment. It argued that by providing the totality of the requested information—albeit in a separated format—it fulfilled its statutory obligations in a reasonable manner and within the required timeframe.

Ultimately, the ALJ ruled in favor of the Association. The decision concluded that the Petitioners failed to meet their burden of proof. The judge found that the Association’s actions—including the initial NDA request and the methodology of providing separated documents—did not constitute a violation of the statute. While deemed “not ideal,” the method was found to be “reasonable under the totality of underlying circumstances,” and the petition was denied.

Case Background

This matter was adjudicated in the Arizona Office of Administrative Hearings (OAH) following a petition filed with the Arizona Department of Real Estate. The case revolves around a homeowner’s right to access association records versus an association’s duty to protect its members’ privacy.

Parties Involved

Representation

Petitioners

Sandra Swanson & Robert Barnes

Kristin Roebuck Bethell, Esq.

Respondent

Circle G Ranches 4 Homeowners Association

Samantha Cote, Esq.

Administrative Law Judge (ALJ) Jenna Clark

Core Dispute

The central conflict stems from records requests made by the Petitioners in January 2020 for ballots and related documents from two separate votes:

1. A vote on or about October 28, 2019, regarding an increase in dues.

2. A vote in December 2019 regarding a proposed Declaration Amendment to prohibit cumulative voting.

The Petitioners alleged that the Association’s response failed to comply with ARIZ. REV. STAT. § 33-1805, which mandates that records be made “reasonably available” for examination.

Procedural History

The dispute followed a lengthy procedural path, beginning with the Petitioners’ initial filing on September 22, 2020. An initial Administrative Law Judge Decision was issued on May 17, 2021. The Petitioners requested and were granted a rehearing on the grounds that the decision was “arbitrary, capricious, or an abuse of discretion.” The final hearing detailed in this decision took place on January 13, 2022, after several continuances requested by both parties.

Chronology of Key Events

Oct 4, 2017

The Association’s Board approves and adopts the “Rule Requiring Secret Ballots,” mandating secret ballots for votes on special assessments.

Jan 6, 2020

Petitioners submit a written request to view the votes for the proposed amendment on cumulative voting.

Jan 13, 2020

The Association Board meets to discuss the request. Citing member privacy concerns and past complaints of “harassing” behavior by Petitioners, the Board votes 8:1 to require Petitioners to sign a nondisclosure agreement (NDA) before viewing ballots. Petitioners decline.

Jan 16, 2020

Petitioners’ counsel sends a formal letter requesting all ballots and related documents for both the dues increase vote and the cumulative voting amendment.

Jan 30, 2020

The Association’s attorney responds, stating the Association must “balance your clients’ requests against the privacy and safety of all Owners.” The letter confirms the records will be made available for inspection.

Feb 7, 2020

Petitioners inspect records at the attorney’s office. They are provided two stacks of documents: redacted ballots and unredacted envelopes. This method, designed to protect voter identity, prevents matching ballots to specific voters. Petitioners review the cumulative voting records for 3.5 hours but do not review the assessment-related documents.

Aug 5, 2020

Petitioners’ attorney sends a new letter demanding “unredacted ballots…along with all envelopes” for the dues increase vote, alleging the secrecy of the ballots was optional. No additional documents are provided by the Association.

Sep 22, 2020

Petitioners file a formal petition with the Arizona Department of Real Estate, initiating the legal proceedings.

Jan 13, 2022

A rehearing is held before ALJ Jenna Clark, where both parties present oral arguments but no new evidence or testimony.

Feb 2, 2022

ALJ Clark issues the final Administrative Law Judge Decision, denying the Petitioners’ petition.

Central Legal Arguments

At the January 13, 2022, rehearing, both parties presented their final arguments regarding the alleged violation of ARIZ. REV. STAT. § 33-1805.

Petitioners’ Position (Swanson & Barnes)

• Statutory Requirement: The statute requires unredacted copies of requested documents. The law specifies what records must be produced, not how they can be produced in a modified format.

• Unlawful Barrier: The Association erected an unlawful barrier by providing documents in a manner that made it impossible to “cross reference (i.e. match) the votes with the purported voters.” This did not satisfy the “reasonably available” standard.

• Improper NDA Condition: The Association had no right to condition access to the records on the signing of an NDA, as this is not one of the enumerated exceptions in the statute for withholding documents.

• No Expectation of Privacy: The ballots were not truly “secret ballots” because some homeowners’ names appeared on them or were signed. Therefore, voters could not have held a reasonable expectation of privacy.

Respondent’s Position (Circle G Ranches 4 HOA)

• Statutory Compliance: The Association was not in violation because the statute does not dictate the specific manner or format in which records must be made available. They argued they had “timely provided the totality of records Petitioners had requested.”

• Balancing of Duties: The Association devised a method (providing redacted ballots and separate unredacted envelopes) to fulfill its duty to provide records while simultaneously upholding its responsibility to protect members from potential harassment or retaliation, thereby satisfying all its obligations.

• Reasonable Protection: The request to sign an NDA was a reasonable and necessary step to protect members’ privacy regarding their secret ballot votes. Furthermore, it was ultimately irrelevant because the records were provided even after the Petitioners declined to sign.

• Timeliness: All information and documentation requested by the Petitioners had been timely provided to them.

Administrative Law Judge’s Findings and Decision

The ALJ’s decision was based on an interpretation of the relevant statute and a review of the evidence and arguments presented. The Petitioners bore the burden of proving a violation by a preponderance of the evidence.

Governing Statute: ARIZ. REV. STAT. § 33-1805(A)

“Except as provided in subsection B of this section, all financial and other records of the association shall be made reasonably available for examination by any member… The association shall have ten business days to fulfill a request for examination.” (Emphasis added.)

Key Conclusions of Law

1. NDA Request: The Respondent’s request that Petitioners sign an NDA did not constitute a violation of the statute.

2. Timeliness of Response: The Respondent was required to comply with the January 16, 2020 request by January 31, 2020. The response from the Association’s attorney on January 30, 2020, and the subsequent inspection on February 7, 2020 (a date chosen by Petitioners) did not establish a violation of the 10-day rule.

3. Manner of Delivery: The method used to provide the documents—redacted ballots and separate unredacted envelopes—did not violate ARIZ. REV. STAT. § 33-1805. The ALJ determined that the “Petitioners timely received the totality of the documents from their records request(s)” and that the record did not suggest the documents were not made “reasonably available.”

Final Determination

The ALJ concluded that while the Association’s method of document delivery was not perfect, it was legally sufficient.

“While Respondent’s methodology of document delivery to Petitioners may have not been ideal, under the totality of underlying circumstances the decision reasonable and within the requirements of the applicable statute(s).”

Because the Petitioners did not successfully prove their case, the judge ruled against them.

“…the undersigned Administrative Law Judge must again conclude that because Petitioners did no sustain their burden of proof that the Association committed a violation of ARIZ. REV. STAT. § 33-1805, their petition must be denied.”

Final Order

IT IS ORDERED that Petitioners’ petition is denied.

The decision, issued February 2, 2022, is binding on the parties, with any appeal required to be filed with the Superior Court within thirty-five days of the order being served.


Carlos J Sanchez & Marinda K Minch, vs. Tempe Villages Homeowners

Posted on by

Case Summary

Case ID 21F-H2121033-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-03-09
Administrative Law Judge Sondra J. Vanella
Outcome none
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Carlos J. Sanchez & Marinda K. Minch Counsel —
Respondent Tempe Villages Homeowners Association, Inc. Counsel Ashley Moscarello

Alleged Violations

Bylaws Article 4 Section 1

Outcome Summary

The Petition was dismissed because Petitioners failed to prove the Respondent HOA violated the Bylaws regarding the filling of a vacant Board seat. The ALJ determined the Bylaws did not impose a timeframe for filling the vacancy and the Board acted according to Article IV, Section 3.

Why this result: Petitioners failed to meet the burden of proof to establish the violation by a preponderance of the evidence. The Bylaws do not contain a provision providing a timeframe in which a vacancy on the Board must be filled.

Key Issues & Findings

Violation of Bylaws regarding Board of Directors composition and appointment

Petitioners alleged the HOA violated Bylaws Article 4 Section 1 by leaving a Board seat open following a resignation (August 2020) and not filling it until November 2020. The ALJ found the Bylaws (Sections 1, 2, and 3) did not mandate a timeframe for filling a vacancy, and the HOA followed procedures for appointment.

Orders: Petitioners’ Petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 32-2199
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • A.A.C. R2-19-119(B)(2)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09

Analytics Highlights

Topics: HOA Governance, Board of Directors, Bylaws, Board Vacancy
Additional Citations:

  • A.R.S. § 32-2199
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • A.A.C. R2-19-119(B)(2)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09

Audio Overview

Decision Documents

21F-H2121033-REL Decision – 862059.pdf

Uploaded 2025-10-09T03:36:44 (132.3 KB)

David & Brenda Norman v. Rancho Del Lago Community Association

Posted on by

Case Summary

Case ID 19F-H1919051-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-05-28
Administrative Law Judge Diane Mihalsky
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner David and Brenda Norman Counsel —
Respondent Rancho Del Lago Community Association Counsel Ashley N. Moscarello

Alleged Violations

CC&Rs § 3.11(D)(1) / Common Project Guidelines § 3.11(D)(1)

Outcome Summary

The Administrative Law Judge dismissed the petition filed by David and Brenda Norman against Rancho Del Lago Community Association, finding that the Department of Real Estate did not have jurisdiction to hear the dispute, as it was essentially a conflict between neighboring owners (Petitioners and Hendersons) regarding a wall.

Why this result: The Department lacked jurisdiction over the dispute among or between owners, per A.R.S. § 32-2199.01(A)(1).

Key Issues & Findings

Alleged violation by HOA approving a block wall built by neighbors (Hendersons)

Petitioners alleged that Respondent HOA violated CC&Rs § 3.11(D)(1) by approving a block wall built by their next-door neighbors, the Hendersons, and requested the Department require the Hendersons to permit Petitioners to connect to the wall or require the Hendersons to tear the wall down.

Orders: The petition was dismissed because the Department lacked jurisdiction to hear a dispute primarily among or between owners to which the association is not a party, pursuant to A.R.S. § 32-2199.01(A)(1).

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 32-2199.01(A)(1)
  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09

Analytics Highlights

Topics: Jurisdiction, HOA Governance, Architectural Review Committee (ARC), Party Wall, Neighbor Dispute, CC&Rs
Additional Citations:

  • A.R.S. § 32-2199.01(A)(1)
  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09

Audio Overview

Decision Documents

19F-H1919051-REL Decision – 710478.pdf

Uploaded 2025-10-08T07:09:03 (150.0 KB)

19F-H1919051-REL Decision – 711115.pdf

Uploaded 2025-10-08T07:09:03 (149.9 KB)





Briefing Doc – 19F-H1919051-REL


Case Briefing: Norman v. Rancho Del Lago Community Association

Executive Summary

This briefing document provides a comprehensive analysis of the Administrative Law Judge Decision in case number 19F-H1919051-REL, involving homeowners David and Brenda Norman (Petitioners) and the Rancho Del Lago Community Association (Respondent). The core of the dispute centers on the Petitioners’ allegation that the Respondent’s Architectural Review Committee (ARC) violated community guidelines by approving a wall built by the Petitioners’ neighbors, the Hendersons.

The Petitioners claimed the Henderson’s wall, constructed 6 inches inside the property line, created a situation where any wall they might build on their property would be a “closely parallel wall,” which is prohibited by the community’s Common Project Guidelines § 3.11(D)(1). They requested that the Respondent either force the Hendersons to allow the Petitioners to connect to their wall, effectively making it a shared “party wall,” or compel the Hendersons to demolish it.

The Administrative Law Judge dismissed the petition entirely. The primary legal basis for the dismissal was a lack of jurisdiction; under Arizona statute A.R.S. § 32-2199.01(A)(1), the Arizona Department of Real Estate cannot hear disputes solely between homeowners in which the association is not a party. The judge concluded this was fundamentally a neighbor-versus-neighbor conflict. Furthermore, the judge characterized the wall the Petitioners sought to build as an “archetypical spite fence” and noted that the Petitioners had failed to prove the Respondent had violated any community documents.

Case Overview

Parties and Key Entities

Name/Entity

Description

Petitioners

David and Brenda Norman

Homeowners in the Rancho Del Lago Community.

Respondent

Rancho Del Lago Community Association

The homeowners’ association (HOA) for the community.

Neighbors

The Hendersons

The Petitioners’ next-door neighbors who built the disputed wall.

Management Co.

Management Solutions

The company managing the Respondent HOA.

Witness (Respondent)

Spencer Brod

Employee of Management Solutions overseeing the Respondent’s affairs.

Administrative Law Judge

Diane Mihalsky

Presiding judge from the Office of Administrative Hearings.

Regulating Body

Arizona Department of Real Estate

State agency authorized to hear certain HOA disputes.

Adjudicating Body

Office of Administrative Hearings

Independent state agency that conducted the evidentiary hearing.

Procedural Details

Detail

Information

Case Number

19F-H1919051-REL

Petition Filed

On or about February 28, 2019

Hearing Date

May 8, 2019

Amended Decision Date

May 28, 2019

Timeline of Key Events

• December 2003: The Respondent’s ARC adopts the Common Project Guidelines, which govern all exterior improvements.

• March 8, 2017: The Hendersons submit an Architectural Variance Request (AVR) to extend the common wall between their property and the Petitioners’. Mrs. Norman signs the request, giving consent. The ARC approves this request.

• April 27, 2017: The Hendersons submit a new AVR to build a wall extension 6 inches inside their property line, making it a private wall rather than a shared party wall. The record suggests Mrs. Norman may have rescinded her earlier approval for the common wall.

• May 10, 2017: The ARC approves the Hendersons’ request to build the wall 6 inches inside their property line.

• September 5, 2017: The Petitioners submit an AVR to build an 11-foot wide concrete driveway. The ARC denies the request.

• Post-September 5, 2017: Despite the denial, the Petitioners construct the 11-foot wide driveway and are subsequently issued a Notice of Violation by the Respondent.

• September 7, 2017: The Petitioners submit an AVR to build a wall extension on their property, positioned at least 3 feet away from the Hendersons’ wall.

• October 13, 2017: The ARC approves the Petitioners’ wall extension request.

• Post-October 13, 2017: The Petitioners decide not to build the approved wall, stating their contractor advised them against “giving up” the 3 feet of property that would lie between the two walls.

• By November 2017: The Hendersons’ wall appears to have been constructed.

• February 28, 2019: The Petitioners file a petition with the Arizona Department of Real Estate, alleging the Respondent violated community rules.

• March 27, 2019: The Petitioners file a new AVR to build a wall directly on the property line. This request did not include the Hendersons’ required consent and was still pending at the time of the hearing.

Governing Documents and Key Provisions

The dispute and subsequent legal decision referenced several specific articles from the community’s Covenants, Conditions, and Restrictions (CC&Rs) and the Common Project Guidelines.

Document

Provision

Description

Article I § (p)

Defines “Party Walls” built on a property line, establishing equal right of use, joint responsibility for maintenance and repair, and a process for the Board to resolve disputes over construction or cost-sharing.

Article II § 2(a)

Requires prior written approval from the ARC for any improvements that alter the exterior appearance of a property.

Article XII § 1

Establishes the ARC, noting that its decisions are “sole, absolute and final on all matters submitted to it.”

Common Project Guidelines

Section 3.11(D)(1)

States that “Closely parallel walls shall be disapproved.” The term “closely parallel” is not defined in the guidelines. This provision was the central focus of the Petitioners’ complaint.

Common Project Guidelines

Section 4.21

Grants the ARC the right “to waive, vary, or otherwise modify any of the standards or procedures set forth herein at its discretion, for good cause shown.”

Summary of Testimony and Evidence

Testimony of Brenda Norman (Petitioner)

• Motivation for Wall: Stated that she and her husband are in law enforcement and want to enclose their side yard to protect utility meters from potential vandalism.

• Reason for Not Building Approved Wall: Explained that their contractor advised them it was “crazy to give up the 3’ of property” that would be inaccessible between their proposed wall and the Hendersons’ wall.

• Relationship with Neighbors: Acknowledged that the Petitioners “do not get along very well with the Hendersons” and therefore never asked for their consent for a wall on the property line.

• Belief Regarding Parallel Walls: Believes that if she submitted a plan for a wall just inside her property line, it would be denied under the “close parallel wall” rule.

• Requested Action: Opined that the Respondent should force the Hendersons to tear down their wall because it is not uniformly 6 inches from the property line.

Testimony of Spencer Brod (for Respondent)

• HOA Policy: Testified that the HOA “never gets involved in disputes between neighbors” and that it is the homeowner’s responsibility to obtain neighbor consent for common wall projects.

• Party vs. Private Walls: Explained that neighbor consent is required only for “party walls” on the property line due to shared maintenance liability. The Hendersons’ wall was approved because it was on their own property and therefore not a party wall.

• Enforcement and Inspection: Admitted that the Hendersons’ wall may not be uniformly 6 inches from the line but stated the Respondent has no one to perform a “thorough inspection” and had not sent a violation letter.

• “Closely Parallel Walls” Interpretation: Testified that while the term is undefined, the ARC’s approval of the Petitioners’ plan for a wall 3 feet away indicates that “closely parallel” means a distance of less than 3 feet.

• Petitioners’ Unauthorized Construction: Confirmed that the Respondent sent the Petitioners a Notice of Violation for building a driveway that the ARC had explicitly denied.

Administrative Law Judge’s Conclusions of Law

The judge’s decision was based on a detailed analysis of the evidence, governing documents, and relevant state law.

1. Jurisdictional Failure: The primary reason for dismissal was a lack of jurisdiction. The judge cited A.R.S. § 32-2199.01(A)(1), which explicitly states, “The department does not have jurisdiction to hear [a]ny dispute among or between owners to which the association is not a party.” The judge determined this was a quintessential neighbor dispute, not a dispute with the HOA.

2. Failure to Meet Burden of Proof: The Petitioners bore the burden of proving by a “preponderance of the evidence” that the Respondent violated its own rules. The judge found they failed to do so.

3. Characterization as a “Spite Fence”: The decision describes the wall the Petitioners wish to build as an “archetypical spite fence between neighbors who cannot agree to mutually work for the improvement of their adjacent properties.”

4. HOA’s Limited Role: The judge affirmed that neither the CC&Rs nor the Common Project Guidelines compel the HOA to mediate or resolve disputes between neighbors by taking a side.

5. Distinction of Wall Types: The analysis distinguished between a party wall on a property line, which requires neighbor consent, and a private wall built entirely on one owner’s property, which does not. The Hendersons’ wall was approved as the latter.

6. Hypothetical Outcome: A concluding footnote in the decision states that even if the Department had jurisdiction, the Petitioners had not established that Guideline 3.11(D)(1) would authorize or require the Respondent to grant the relief they requested.

Final Order

IT IS ORDERED that the petition filed by David and Brenda Norman against the Respondent, Rancho Del Lago Community Association, is dismissed. The dismissal is based on the finding that the Arizona Department of Real Estate does not have jurisdiction to hear their dispute with the Hendersons.


David & Brenda Norman vs. Rancho Del Lago Community Association

Posted on by

Case Summary

Case ID 19F-H1919051-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-05-28
Administrative Law Judge Diane Mihalsky
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner David and Brenda Norman Counsel —
Respondent Rancho Del Lago Community Association Counsel Ashley N. Moscarello

Alleged Violations

CC&Rs § 3.11(D)(1) / Common Project Guidelines § 3.11(D)(1)

Outcome Summary

The Administrative Law Judge dismissed the petition filed by David and Brenda Norman against Rancho Del Lago Community Association, finding that the Department of Real Estate did not have jurisdiction to hear the dispute, as it was essentially a conflict between neighboring owners (Petitioners and Hendersons) regarding a wall.

Why this result: The Department lacked jurisdiction over the dispute among or between owners, per A.R.S. § 32-2199.01(A)(1).

Key Issues & Findings

Alleged violation by HOA approving a block wall built by neighbors (Hendersons)

Petitioners alleged that Respondent HOA violated CC&Rs § 3.11(D)(1) by approving a block wall built by their next-door neighbors, the Hendersons, and requested the Department require the Hendersons to permit Petitioners to connect to the wall or require the Hendersons to tear the wall down.

Orders: The petition was dismissed because the Department lacked jurisdiction to hear a dispute primarily among or between owners to which the association is not a party, pursuant to A.R.S. § 32-2199.01(A)(1).

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 32-2199.01(A)(1)
  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09

Analytics Highlights

Topics: Jurisdiction, HOA Governance, Architectural Review Committee (ARC), Party Wall, Neighbor Dispute, CC&Rs
Additional Citations:

  • A.R.S. § 32-2199.01(A)(1)
  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09

David & Brenda Norman v. Rancho Del Lago Community Association

Posted on by

Case Summary

Case ID 19F-H1919051-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-05-28
Administrative Law Judge Diane Mihalsky
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner David and Brenda Norman Counsel —
Respondent Rancho Del Lago Community Association Counsel Ashley N. Moscarello

Alleged Violations

CC&Rs § 3.11(D)(1) / Common Project Guidelines § 3.11(D)(1)

Outcome Summary

The Administrative Law Judge dismissed the petition filed by David and Brenda Norman against Rancho Del Lago Community Association, finding that the Department of Real Estate did not have jurisdiction to hear the dispute, as it was essentially a conflict between neighboring owners (Petitioners and Hendersons) regarding a wall.

Why this result: The Department lacked jurisdiction over the dispute among or between owners, per A.R.S. § 32-2199.01(A)(1).

Key Issues & Findings

Alleged violation by HOA approving a block wall built by neighbors (Hendersons)

Petitioners alleged that Respondent HOA violated CC&Rs § 3.11(D)(1) by approving a block wall built by their next-door neighbors, the Hendersons, and requested the Department require the Hendersons to permit Petitioners to connect to the wall or require the Hendersons to tear the wall down.

Orders: The petition was dismissed because the Department lacked jurisdiction to hear a dispute primarily among or between owners to which the association is not a party, pursuant to A.R.S. § 32-2199.01(A)(1).

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 32-2199.01(A)(1)
  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09

Analytics Highlights

Topics: Jurisdiction, HOA Governance, Architectural Review Committee (ARC), Party Wall, Neighbor Dispute, CC&Rs
Additional Citations:

  • A.R.S. § 32-2199.01(A)(1)
  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09

Audio Overview

Decision Documents

19F-H1919051-REL Decision – 710478.pdf

Uploaded 2025-10-09T03:34:10 (150.0 KB)

19F-H1919051-REL Decision – 711115.pdf

Uploaded 2025-10-09T03:34:10 (149.9 KB)





Briefing Doc – 19F-H1919051-REL


Case Briefing: Norman v. Rancho Del Lago Community Association

Executive Summary

This briefing document provides a comprehensive analysis of the Administrative Law Judge Decision in case number 19F-H1919051-REL, involving homeowners David and Brenda Norman (Petitioners) and the Rancho Del Lago Community Association (Respondent). The core of the dispute centers on the Petitioners’ allegation that the Respondent’s Architectural Review Committee (ARC) violated community guidelines by approving a wall built by the Petitioners’ neighbors, the Hendersons.

The Petitioners claimed the Henderson’s wall, constructed 6 inches inside the property line, created a situation where any wall they might build on their property would be a “closely parallel wall,” which is prohibited by the community’s Common Project Guidelines § 3.11(D)(1). They requested that the Respondent either force the Hendersons to allow the Petitioners to connect to their wall, effectively making it a shared “party wall,” or compel the Hendersons to demolish it.

The Administrative Law Judge dismissed the petition entirely. The primary legal basis for the dismissal was a lack of jurisdiction; under Arizona statute A.R.S. § 32-2199.01(A)(1), the Arizona Department of Real Estate cannot hear disputes solely between homeowners in which the association is not a party. The judge concluded this was fundamentally a neighbor-versus-neighbor conflict. Furthermore, the judge characterized the wall the Petitioners sought to build as an “archetypical spite fence” and noted that the Petitioners had failed to prove the Respondent had violated any community documents.

Case Overview

Parties and Key Entities

Name/Entity

Description

Petitioners

David and Brenda Norman

Homeowners in the Rancho Del Lago Community.

Respondent

Rancho Del Lago Community Association

The homeowners’ association (HOA) for the community.

Neighbors

The Hendersons

The Petitioners’ next-door neighbors who built the disputed wall.

Management Co.

Management Solutions

The company managing the Respondent HOA.

Witness (Respondent)

Spencer Brod

Employee of Management Solutions overseeing the Respondent’s affairs.

Administrative Law Judge

Diane Mihalsky

Presiding judge from the Office of Administrative Hearings.

Regulating Body

Arizona Department of Real Estate

State agency authorized to hear certain HOA disputes.

Adjudicating Body

Office of Administrative Hearings

Independent state agency that conducted the evidentiary hearing.

Procedural Details

Detail

Information

Case Number

19F-H1919051-REL

Petition Filed

On or about February 28, 2019

Hearing Date

May 8, 2019

Amended Decision Date

May 28, 2019

Timeline of Key Events

• December 2003: The Respondent’s ARC adopts the Common Project Guidelines, which govern all exterior improvements.

• March 8, 2017: The Hendersons submit an Architectural Variance Request (AVR) to extend the common wall between their property and the Petitioners’. Mrs. Norman signs the request, giving consent. The ARC approves this request.

• April 27, 2017: The Hendersons submit a new AVR to build a wall extension 6 inches inside their property line, making it a private wall rather than a shared party wall. The record suggests Mrs. Norman may have rescinded her earlier approval for the common wall.

• May 10, 2017: The ARC approves the Hendersons’ request to build the wall 6 inches inside their property line.

• September 5, 2017: The Petitioners submit an AVR to build an 11-foot wide concrete driveway. The ARC denies the request.

• Post-September 5, 2017: Despite the denial, the Petitioners construct the 11-foot wide driveway and are subsequently issued a Notice of Violation by the Respondent.

• September 7, 2017: The Petitioners submit an AVR to build a wall extension on their property, positioned at least 3 feet away from the Hendersons’ wall.

• October 13, 2017: The ARC approves the Petitioners’ wall extension request.

• Post-October 13, 2017: The Petitioners decide not to build the approved wall, stating their contractor advised them against “giving up” the 3 feet of property that would lie between the two walls.

• By November 2017: The Hendersons’ wall appears to have been constructed.

• February 28, 2019: The Petitioners file a petition with the Arizona Department of Real Estate, alleging the Respondent violated community rules.

• March 27, 2019: The Petitioners file a new AVR to build a wall directly on the property line. This request did not include the Hendersons’ required consent and was still pending at the time of the hearing.

Governing Documents and Key Provisions

The dispute and subsequent legal decision referenced several specific articles from the community’s Covenants, Conditions, and Restrictions (CC&Rs) and the Common Project Guidelines.

Document

Provision

Description

Article I § (p)

Defines “Party Walls” built on a property line, establishing equal right of use, joint responsibility for maintenance and repair, and a process for the Board to resolve disputes over construction or cost-sharing.

Article II § 2(a)

Requires prior written approval from the ARC for any improvements that alter the exterior appearance of a property.

Article XII § 1

Establishes the ARC, noting that its decisions are “sole, absolute and final on all matters submitted to it.”

Common Project Guidelines

Section 3.11(D)(1)

States that “Closely parallel walls shall be disapproved.” The term “closely parallel” is not defined in the guidelines. This provision was the central focus of the Petitioners’ complaint.

Common Project Guidelines

Section 4.21

Grants the ARC the right “to waive, vary, or otherwise modify any of the standards or procedures set forth herein at its discretion, for good cause shown.”

Summary of Testimony and Evidence

Testimony of Brenda Norman (Petitioner)

• Motivation for Wall: Stated that she and her husband are in law enforcement and want to enclose their side yard to protect utility meters from potential vandalism.

• Reason for Not Building Approved Wall: Explained that their contractor advised them it was “crazy to give up the 3’ of property” that would be inaccessible between their proposed wall and the Hendersons’ wall.

• Relationship with Neighbors: Acknowledged that the Petitioners “do not get along very well with the Hendersons” and therefore never asked for their consent for a wall on the property line.

• Belief Regarding Parallel Walls: Believes that if she submitted a plan for a wall just inside her property line, it would be denied under the “close parallel wall” rule.

• Requested Action: Opined that the Respondent should force the Hendersons to tear down their wall because it is not uniformly 6 inches from the property line.

Testimony of Spencer Brod (for Respondent)

• HOA Policy: Testified that the HOA “never gets involved in disputes between neighbors” and that it is the homeowner’s responsibility to obtain neighbor consent for common wall projects.

• Party vs. Private Walls: Explained that neighbor consent is required only for “party walls” on the property line due to shared maintenance liability. The Hendersons’ wall was approved because it was on their own property and therefore not a party wall.

• Enforcement and Inspection: Admitted that the Hendersons’ wall may not be uniformly 6 inches from the line but stated the Respondent has no one to perform a “thorough inspection” and had not sent a violation letter.

• “Closely Parallel Walls” Interpretation: Testified that while the term is undefined, the ARC’s approval of the Petitioners’ plan for a wall 3 feet away indicates that “closely parallel” means a distance of less than 3 feet.

• Petitioners’ Unauthorized Construction: Confirmed that the Respondent sent the Petitioners a Notice of Violation for building a driveway that the ARC had explicitly denied.

Administrative Law Judge’s Conclusions of Law

The judge’s decision was based on a detailed analysis of the evidence, governing documents, and relevant state law.

1. Jurisdictional Failure: The primary reason for dismissal was a lack of jurisdiction. The judge cited A.R.S. § 32-2199.01(A)(1), which explicitly states, “The department does not have jurisdiction to hear [a]ny dispute among or between owners to which the association is not a party.” The judge determined this was a quintessential neighbor dispute, not a dispute with the HOA.

2. Failure to Meet Burden of Proof: The Petitioners bore the burden of proving by a “preponderance of the evidence” that the Respondent violated its own rules. The judge found they failed to do so.

3. Characterization as a “Spite Fence”: The decision describes the wall the Petitioners wish to build as an “archetypical spite fence between neighbors who cannot agree to mutually work for the improvement of their adjacent properties.”

4. HOA’s Limited Role: The judge affirmed that neither the CC&Rs nor the Common Project Guidelines compel the HOA to mediate or resolve disputes between neighbors by taking a side.

5. Distinction of Wall Types: The analysis distinguished between a party wall on a property line, which requires neighbor consent, and a private wall built entirely on one owner’s property, which does not. The Hendersons’ wall was approved as the latter.

6. Hypothetical Outcome: A concluding footnote in the decision states that even if the Department had jurisdiction, the Petitioners had not established that Guideline 3.11(D)(1) would authorize or require the Respondent to grant the relief they requested.

Final Order

IT IS ORDERED that the petition filed by David and Brenda Norman against the Respondent, Rancho Del Lago Community Association, is dismissed. The dismissal is based on the finding that the Arizona Department of Real Estate does not have jurisdiction to hear their dispute with the Hendersons.


Jay A. Janicek v. Sycamore Vista No. 8 Homeowners

Posted on by

Case Summary

Case ID 19F-H1918001-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-03-25
Administrative Law Judge Jenna Clark
Outcome full
Filing Fees Refunded $0.00
Civil Penalties $250.00

Parties & Counsel

Petitioner Jay A. Janicek Counsel Jake Kubert, Esq.
Respondent Sycamore Vista No. 8 Homeowners Association Counsel Evan Thompson, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1804(B)

Outcome Summary

The ALJ granted the petition, finding that the HOA Board violated ARIZ. REV. STAT. § 33-1804(B) and the Association Bylaws by amending the Bylaws on November 20, 2017, without a quorum of Association members voting in favor and without proper notice. The amendment was invalidated, and the HOA was fined $250.00 and ordered to refund the Petitioner's filing fee.

Why this result: The Board lacked the authority to amend the Bylaws without the vote of the Association membership, and failed to provide required notice for the proposed amendment, violating ARIZ. REV. STAT. § 33-1804(B) and the Association Bylaws.

Key Issues & Findings

Whether Sycamore Vista No. 8 Homeowners Association 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 Respondent HOA Board amended Association Bylaws on November 20, 2017, without proper notice to the members and without a vote by a majority of Association members, which violated the statutory notice requirement and the Bylaws. The Board action was consequently invalidated.

Orders: The Petitioner's petition was granted. The Respondent's third amendment to the Association Bylaws, dated November 20, 2017, was invalidated. Respondent was ordered to pay the Petitioner's filing fee and pay a civil penalty of $250.00 to the Planned Community Hearing Office Fund.

Filing fee: $0.00, Fee refunded: Yes, Civil penalty: $250.00

Disposition: petitioner_win

Cited:

  • Powell v. Washburn, 211 Ariz. 553, 125 P.3d 373, 374 (Ariz. 2006)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • Mail Boxes v. Indus. Comm’n of Ariz., 181 Ariz. 119, 122, 888 P.2d 777, 780 (1995)

Analytics Highlights

Topics: Open Meeting Law, Bylaw Amendment, Notice Violation, Membership Vote, HOA Governance
Additional Citations:

  • Powell v. Washburn, 211 Ariz. 553, 125 P.3d 373, 374 (Ariz. 2006)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • Mail Boxes v. Indus. Comm’n of Ariz., 181 Ariz. 119, 122, 888 P.2d 777, 780 (1995)

Audio Overview

Decision Documents

19F-H1918001-REL-RHG Decision – 696205.pdf

Uploaded 2025-10-08T07:06:39 (169.8 KB)





Briefing Doc – 19F-H1918001-REL-RHG


Briefing Document: Janicek v. Sycamore Vista No. 8 Homeowners Association

Executive Summary

This document synthesizes the findings from the Administrative Law Judge (ALJ) Decision in case number 19F-H1918001-REL-RHG, concerning a dispute between homeowner Jay Janicek (“Petitioner”) and the Sycamore Vista No. 8 Homeowners Association (“Respondent”). The central conflict revolved around the HOA Board of Directors’ unilateral amendment of the Association’s Bylaws on November 20, 2017, without a vote of the general membership.

The ALJ ruled decisively in favor of the Petitioner, invalidating the Board’s amendment. The decision hinged on the interpretation of the word “members” in Article XIII of the Bylaws, which governs amendments. The ALJ concluded that “members” unambiguously refers to the homeowners who constitute the Association, not the members of the Board of Directors. Consequently, the Board’s action was found to be outside its authority as defined in the governing documents.

Furthermore, the ALJ determined that the Board’s action violated Arizona’s Open Meeting Law, specifically ARIZ. REV. STAT. § 33-1804(B), because the required notice for a proposed bylaw amendment was not provided to the Association’s membership. The Respondent’s arguments were found to be unpersuasive. As a result of the ruling, the amendment was nullified, and the HOA was ordered to pay the Petitioner’s filing fee and a civil penalty of $250.

1. Case Overview

• Case Number: 19F-H1918001-REL-RHG

• Petitioner: Jay Janicek, a property owner and member of the Association.

• Respondent: Sycamore Vista No. 8 Homeowners Association (“the Association”).

• Presiding Judge: Administrative Law Judge Jenna Clark.

• Central Issue: “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.”

2. Procedural History and Timeline

• July 25, 2018: Petitioner Jay Janicek filed a petition with the Arizona Department of Real Estate.

• September 5, 2018: An initial evidentiary hearing was held at the Office of Administrative Hearings (OAH).

• September 25, 2018: The OAH issued an initial ALJ Decision in favor of the Petitioner.

• October 23, 2018: Respondent submitted a Request for Rehearing.

• November 7, 2018: The Department granted the Respondent’s request for a rehearing.

• March 5, 2019: A rehearing was held. Per a stipulated agreement, no new evidence was presented; instead, counsel for both parties submitted legal briefs and presented closing arguments.

• March 25, 2019: The final ALJ Decision was issued, reaffirming the initial ruling in favor of the Petitioner.

3. The Disputed Action of November 20, 2017

At a regular Board of Directors meeting held on November 20, 2017, the Association’s Board voted to approve a third amendment to the Association Bylaws. The amendment altered Article VIII Section 6(d), which pertains to the Association’s financial oversight.

• Original Clause: 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.”

• Amended Clause: Changed the requirement to “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 argued that while he had not been directly impacted, he could be in the future, as the amendment modified a prior third-party audit requirement. He asserted an interest as a homeowner in ensuring the Association’s financials were correct and not subject to self-auditing.

4. Analysis of Core Arguments

The case centered on the conflicting interpretations of the Association’s governing documents, particularly the clause authorizing Bylaw amendments.

4.1. Petitioner’s Position (Jay Janicek)

The Petitioner contended that any amendment to the Bylaws required a vote by the general membership of the Association, not just the Board of Directors.

• Textual Interpretation: Petitioner focused on 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.” He argued “members” refers to homeowners as defined in the Association’s Declaration, not Board members.

• Use of “Proxy”: The inclusion of the term “proxy” was cited as evidence supporting this interpretation, as Board members are not permitted to vote by proxy, whereas Association members are.

• Delineation of Powers: Petitioner noted that Article VII, which outlines the “Powers and Duties of the Board of Directors,” does not grant the Board the authority to amend the Bylaws.

• Intent of the Drafter: The argument was made that the Bylaws’ drafters intentionally used the words “directors” and “members” distinctly throughout the document, indicating that the use of “members” in the amendment clause was a deliberate choice to refer to the homeowners.

• Statutory Violation: The Petitioner argued the Board’s action violated Arizona’s Open Meeting Law (ARIZ. REV. STAT. § 33-1804), which requires specific notice to members between 10 and 50 days in advance of any meeting where a Bylaw amendment is proposed.

• Legal Precedent: The Petitioner cited Powell v. Washburn, which holds that restrictive covenants should be interpreted to give effect to the intention of the parties as determined from the language of the entire document.

4.2. Respondent’s Position (Sycamore Vista No. 8 HOA)

The Association argued that the Board of Directors possessed the authority to amend the Bylaws during a properly convened Board meeting.

• Board Authority: Respondent cited Article IV of the Bylaws, which states that the “affairs of this Association shall be managed by a Board.”

• Meeting Protocol: The action took place at a regular monthly Board meeting, as permitted by Article VI. The meeting on November 20, 2017, had three Board members present, constituting a quorum as required by the Bylaws.

• Interpretation of “Members”: The Respondent’s central argument was that the phrase “a quorum of members” in Article XIII referred to the members of the Board of Directors, thereby empowering them to pass the amendment.

• Compliance with Open Meeting Law: The Association argued its conduct was not a violation of the law because a necessary quorum of directors was present for the vote.

5. Administrative Law Judge’s Findings and Conclusions

The ALJ found the Petitioner’s arguments convincing and concluded that he had sustained his burden of proof by a preponderance of the evidence. The Respondent’s closing arguments were described as not persuasive.

• Violation of Statute: The Judge determined that the Board’s action violated ARIZ. REV. STAT. § 33-1804(B) because “there was no notice of the proposed amendment” provided to the Association members. The conduct was described as going “against the spirit of the legislative intent” of the statute due to a lack of transparency.

• Interpretation of Governing Documents: The decision firmly established the correct interpretation of the Bylaws.

◦ The terms “members” and “directors” are clearly and intentionally differentiated throughout the document. “Members” refers to the body of homeowners, while “directors” refers to the elected Board.

◦ The conclusion states: “The voices of few cannot speak for all, unless all have bestowed those few with the power and authority to speak on their behalf.”

◦ It was concluded that the Board “does not have power to act where authority is expressly delegated to the membership of the Association.”

• Invalidation of Board Action: The ALJ concluded that the Board’s action on November 20, 2017, was invalid because it was taken “in the absence of a quorum of Association members whereby a majority of said members voted in favor of the proposed third amendment.”

6. Final Order and Penalties

Based on the findings of fact and conclusions of law, the Administrative Law Judge issued the following orders:

1. Petition Granted: The Petitioner’s petition was granted.

2. Amendment Invalidated: The “third amendment to the Association Bylaws, as taken on November 20, 2017, is invalidated.”

3. Fees and Penalties: The Respondent (HOA) was ordered to:

◦ Pay the Petitioner the filing fee.

◦ Pay a civil penalty of $250.00 to the Planned Community Hearing Office Fund.

The decision, having been issued as a result of a rehearing, is binding on the parties.


Jay A. Janicek v. Sycamore Vista No. 8 Homeowners

Posted on by

Case Summary

Case ID 19F-H1918001-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-03-25
Administrative Law Judge Jenna Clark
Outcome full
Filing Fees Refunded $0.00
Civil Penalties $250.00

Parties & Counsel

Petitioner Jay A. Janicek Counsel Jake Kubert, Esq.
Respondent Sycamore Vista No. 8 Homeowners Association Counsel Evan Thompson, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1804(B)

Outcome Summary

The ALJ granted the petition, finding that the HOA Board violated ARIZ. REV. STAT. § 33-1804(B) and the Association Bylaws by amending the Bylaws on November 20, 2017, without a quorum of Association members voting in favor and without proper notice. The amendment was invalidated, and the HOA was fined $250.00 and ordered to refund the Petitioner's filing fee.

Why this result: The Board lacked the authority to amend the Bylaws without the vote of the Association membership, and failed to provide required notice for the proposed amendment, violating ARIZ. REV. STAT. § 33-1804(B) and the Association Bylaws.

Key Issues & Findings

Whether Sycamore Vista No. 8 Homeowners Association 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 Respondent HOA Board amended Association Bylaws on November 20, 2017, without proper notice to the members and without a vote by a majority of Association members, which violated the statutory notice requirement and the Bylaws. The Board action was consequently invalidated.

Orders: The Petitioner's petition was granted. The Respondent's third amendment to the Association Bylaws, dated November 20, 2017, was invalidated. Respondent was ordered to pay the Petitioner's filing fee and pay a civil penalty of $250.00 to the Planned Community Hearing Office Fund.

Filing fee: $0.00, Fee refunded: Yes, Civil penalty: $250.00

Disposition: petitioner_win

Cited:

  • Powell v. Washburn, 211 Ariz. 553, 125 P.3d 373, 374 (Ariz. 2006)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • Mail Boxes v. Indus. Comm’n of Ariz., 181 Ariz. 119, 122, 888 P.2d 777, 780 (1995)

Analytics Highlights

Topics: Open Meeting Law, Bylaw Amendment, Notice Violation, Membership Vote, HOA Governance
Additional Citations:

  • Powell v. Washburn, 211 Ariz. 553, 125 P.3d 373, 374 (Ariz. 2006)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • Mail Boxes v. Indus. Comm’n of Ariz., 181 Ariz. 119, 122, 888 P.2d 777, 780 (1995)

Audio Overview

Decision Documents

19F-H1918001-REL-RHG Decision – 696205.pdf

Uploaded 2025-10-09T03:33:15 (169.8 KB)





Briefing Doc – 19F-H1918001-REL-RHG


Briefing Document: Janicek v. Sycamore Vista No. 8 Homeowners Association

Executive Summary

This document synthesizes the findings from the Administrative Law Judge (ALJ) Decision in case number 19F-H1918001-REL-RHG, concerning a dispute between homeowner Jay Janicek (“Petitioner”) and the Sycamore Vista No. 8 Homeowners Association (“Respondent”). The central conflict revolved around the HOA Board of Directors’ unilateral amendment of the Association’s Bylaws on November 20, 2017, without a vote of the general membership.

The ALJ ruled decisively in favor of the Petitioner, invalidating the Board’s amendment. The decision hinged on the interpretation of the word “members” in Article XIII of the Bylaws, which governs amendments. The ALJ concluded that “members” unambiguously refers to the homeowners who constitute the Association, not the members of the Board of Directors. Consequently, the Board’s action was found to be outside its authority as defined in the governing documents.

Furthermore, the ALJ determined that the Board’s action violated Arizona’s Open Meeting Law, specifically ARIZ. REV. STAT. § 33-1804(B), because the required notice for a proposed bylaw amendment was not provided to the Association’s membership. The Respondent’s arguments were found to be unpersuasive. As a result of the ruling, the amendment was nullified, and the HOA was ordered to pay the Petitioner’s filing fee and a civil penalty of $250.

1. Case Overview

• Case Number: 19F-H1918001-REL-RHG

• Petitioner: Jay Janicek, a property owner and member of the Association.

• Respondent: Sycamore Vista No. 8 Homeowners Association (“the Association”).

• Presiding Judge: Administrative Law Judge Jenna Clark.

• Central Issue: “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.”

2. Procedural History and Timeline

• July 25, 2018: Petitioner Jay Janicek filed a petition with the Arizona Department of Real Estate.

• September 5, 2018: An initial evidentiary hearing was held at the Office of Administrative Hearings (OAH).

• September 25, 2018: The OAH issued an initial ALJ Decision in favor of the Petitioner.

• October 23, 2018: Respondent submitted a Request for Rehearing.

• November 7, 2018: The Department granted the Respondent’s request for a rehearing.

• March 5, 2019: A rehearing was held. Per a stipulated agreement, no new evidence was presented; instead, counsel for both parties submitted legal briefs and presented closing arguments.

• March 25, 2019: The final ALJ Decision was issued, reaffirming the initial ruling in favor of the Petitioner.

3. The Disputed Action of November 20, 2017

At a regular Board of Directors meeting held on November 20, 2017, the Association’s Board voted to approve a third amendment to the Association Bylaws. The amendment altered Article VIII Section 6(d), which pertains to the Association’s financial oversight.

• Original Clause: 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.”

• Amended Clause: Changed the requirement to “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 argued that while he had not been directly impacted, he could be in the future, as the amendment modified a prior third-party audit requirement. He asserted an interest as a homeowner in ensuring the Association’s financials were correct and not subject to self-auditing.

4. Analysis of Core Arguments

The case centered on the conflicting interpretations of the Association’s governing documents, particularly the clause authorizing Bylaw amendments.

4.1. Petitioner’s Position (Jay Janicek)

The Petitioner contended that any amendment to the Bylaws required a vote by the general membership of the Association, not just the Board of Directors.

• Textual Interpretation: Petitioner focused on 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.” He argued “members” refers to homeowners as defined in the Association’s Declaration, not Board members.

• Use of “Proxy”: The inclusion of the term “proxy” was cited as evidence supporting this interpretation, as Board members are not permitted to vote by proxy, whereas Association members are.

• Delineation of Powers: Petitioner noted that Article VII, which outlines the “Powers and Duties of the Board of Directors,” does not grant the Board the authority to amend the Bylaws.

• Intent of the Drafter: The argument was made that the Bylaws’ drafters intentionally used the words “directors” and “members” distinctly throughout the document, indicating that the use of “members” in the amendment clause was a deliberate choice to refer to the homeowners.

• Statutory Violation: The Petitioner argued the Board’s action violated Arizona’s Open Meeting Law (ARIZ. REV. STAT. § 33-1804), which requires specific notice to members between 10 and 50 days in advance of any meeting where a Bylaw amendment is proposed.

• Legal Precedent: The Petitioner cited Powell v. Washburn, which holds that restrictive covenants should be interpreted to give effect to the intention of the parties as determined from the language of the entire document.

4.2. Respondent’s Position (Sycamore Vista No. 8 HOA)

The Association argued that the Board of Directors possessed the authority to amend the Bylaws during a properly convened Board meeting.

• Board Authority: Respondent cited Article IV of the Bylaws, which states that the “affairs of this Association shall be managed by a Board.”

• Meeting Protocol: The action took place at a regular monthly Board meeting, as permitted by Article VI. The meeting on November 20, 2017, had three Board members present, constituting a quorum as required by the Bylaws.

• Interpretation of “Members”: The Respondent’s central argument was that the phrase “a quorum of members” in Article XIII referred to the members of the Board of Directors, thereby empowering them to pass the amendment.

• Compliance with Open Meeting Law: The Association argued its conduct was not a violation of the law because a necessary quorum of directors was present for the vote.

5. Administrative Law Judge’s Findings and Conclusions

The ALJ found the Petitioner’s arguments convincing and concluded that he had sustained his burden of proof by a preponderance of the evidence. The Respondent’s closing arguments were described as not persuasive.

• Violation of Statute: The Judge determined that the Board’s action violated ARIZ. REV. STAT. § 33-1804(B) because “there was no notice of the proposed amendment” provided to the Association members. The conduct was described as going “against the spirit of the legislative intent” of the statute due to a lack of transparency.

• Interpretation of Governing Documents: The decision firmly established the correct interpretation of the Bylaws.

◦ The terms “members” and “directors” are clearly and intentionally differentiated throughout the document. “Members” refers to the body of homeowners, while “directors” refers to the elected Board.

◦ The conclusion states: “The voices of few cannot speak for all, unless all have bestowed those few with the power and authority to speak on their behalf.”

◦ It was concluded that the Board “does not have power to act where authority is expressly delegated to the membership of the Association.”

• Invalidation of Board Action: The ALJ concluded that the Board’s action on November 20, 2017, was invalid because it was taken “in the absence of a quorum of Association members whereby a majority of said members voted in favor of the proposed third amendment.”

6. Final Order and Penalties

Based on the findings of fact and conclusions of law, the Administrative Law Judge issued the following orders:

1. Petition Granted: The Petitioner’s petition was granted.

2. Amendment Invalidated: The “third amendment to the Association Bylaws, as taken on November 20, 2017, is invalidated.”

3. Fees and Penalties: The Respondent (HOA) was ordered to:

◦ Pay the Petitioner the filing fee.

◦ Pay a civil penalty of $250.00 to the Planned Community Hearing Office Fund.

The decision, having been issued as a result of a rehearing, is binding on the parties.


Lawrence Stewart v. Canyon Gate Condominium Association, Inc.

Posted on by

Case Summary

Case ID 18F-H1818052-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-01-17
Administrative Law Judge Thomas Shedden
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Lawrence M. Stewart Counsel —
Respondent Canyon Gate Condominium Association, Inc. Counsel Nicolas C. S. Nogami

Alleged Violations

Association Bylaws section 5.4

Outcome Summary

The Administrative Law Judge dismissed Petitioner Lawrence M. Stewart's petition and deemed the Respondent, Canyon Gate Condominium Association, Inc., to be the prevailing party.

Why this result: Petitioner failed to prove the Association violated Bylaws Section 5.4 or acted unreasonably or in bad faith when denying his request for a variance. The Bylaw section cited was determined to be a liability shield for the Board, not a source of duty owed to the homeowner.

Key Issues & Findings

Alleged failure of HOA Board to act in good faith when denying Petitioner's request for a variance for unauthorized common area changes

Petitioner made changes to the common area without permission and the Board denied his subsequent request for a variance. Petitioner alleged the Board violated Bylaws Section 5.4 by failing to act in good faith and showing bias. The ALJ found that Section 5.4 is a liability shield for the Board, not a duty imposed upon them, and Petitioner failed to meet the burden of proof to show bad faith or unreasonableness.

Orders: Petitioner Lawrence M. Stewart’s petition is dismissed. Respondent is deemed to be the prevailing party in this matter.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Analytics Highlights

Topics: HOA governance, variance denial, common area modifications, good faith requirement, board liability shield, prevailing party
Additional Citations:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Audio Overview

Decision Documents

18F-H1818052-REL-RHG Decision – 683622.pdf

Uploaded 2025-10-08T07:06:11 (95.5 KB)

18F-H1818052-REL-RHG Decision – 694095.pdf

Uploaded 2025-10-08T07:06:12 (90.8 KB)

Lawrence Stewart v. Canyon Gate Condominium Association, Inc.

Posted on by

Case Summary

Case ID 18F-H1818052-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-01-17
Administrative Law Judge Thomas Shedden
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Lawrence M. Stewart Counsel —
Respondent Canyon Gate Condominium Association, Inc. Counsel Nicolas C. S. Nogami

Alleged Violations

Association Bylaws section 5.4

Outcome Summary

The Administrative Law Judge dismissed Petitioner Lawrence M. Stewart's petition and deemed the Respondent, Canyon Gate Condominium Association, Inc., to be the prevailing party.

Why this result: Petitioner failed to prove the Association violated Bylaws Section 5.4 or acted unreasonably or in bad faith when denying his request for a variance. The Bylaw section cited was determined to be a liability shield for the Board, not a source of duty owed to the homeowner.

Key Issues & Findings

Alleged failure of HOA Board to act in good faith when denying Petitioner's request for a variance for unauthorized common area changes

Petitioner made changes to the common area without permission and the Board denied his subsequent request for a variance. Petitioner alleged the Board violated Bylaws Section 5.4 by failing to act in good faith and showing bias. The ALJ found that Section 5.4 is a liability shield for the Board, not a duty imposed upon them, and Petitioner failed to meet the burden of proof to show bad faith or unreasonableness.

Orders: Petitioner Lawrence M. Stewart’s petition is dismissed. Respondent is deemed to be the prevailing party in this matter.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Analytics Highlights

Topics: HOA governance, variance denial, common area modifications, good faith requirement, board liability shield, prevailing party
Additional Citations:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Audio Overview

Decision Documents

18F-H1818052-REL-RHG Decision – 683622.pdf

Uploaded 2025-10-09T03:33:04 (95.5 KB)

18F-H1818052-REL-RHG Decision – 694095.pdf

Uploaded 2025-10-09T03:33:04 (90.8 KB)

Jay A. Janicek vs. Sycamore Vista NO. 8 Homeowners Association

Posted on by

Case Summary

Case ID 19F-H1918001-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-03-25
Administrative Law Judge Jenna Clark
Outcome full
Filing Fees Refunded $0.00
Civil Penalties $250.00

Parties & Counsel

Petitioner Jay A. Janicek Counsel Jake Kubert, Esq.
Respondent Sycamore Vista No. 8 Homeowners Association Counsel Evan Thompson, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1804(B)

Outcome Summary

The ALJ granted the petition, finding that the HOA Board violated ARIZ. REV. STAT. § 33-1804(B) and the Association Bylaws by amending the Bylaws on November 20, 2017, without a quorum of Association members voting in favor and without proper notice. The amendment was invalidated, and the HOA was fined $250.00 and ordered to refund the Petitioner's filing fee.

Why this result: The Board lacked the authority to amend the Bylaws without the vote of the Association membership, and failed to provide required notice for the proposed amendment, violating ARIZ. REV. STAT. § 33-1804(B) and the Association Bylaws.

Key Issues & Findings

Whether Sycamore Vista No. 8 Homeowners Association 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 Respondent HOA Board amended Association Bylaws on November 20, 2017, without proper notice to the members and without a vote by a majority of Association members, which violated the statutory notice requirement and the Bylaws. The Board action was consequently invalidated.

Orders: The Petitioner's petition was granted. The Respondent's third amendment to the Association Bylaws, dated November 20, 2017, was invalidated. Respondent was ordered to pay the Petitioner's filing fee and pay a civil penalty of $250.00 to the Planned Community Hearing Office Fund.

Filing fee: $0.00, Fee refunded: Yes, Civil penalty: $250.00

Disposition: petitioner_win

Cited:

  • Powell v. Washburn, 211 Ariz. 553, 125 P.3d 373, 374 (Ariz. 2006)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • Mail Boxes v. Indus. Comm’n of Ariz., 181 Ariz. 119, 122, 888 P.2d 777, 780 (1995)

Analytics Highlights

Topics: Open Meeting Law, Bylaw Amendment, Notice Violation, Membership Vote, HOA Governance
Additional Citations:

  • Powell v. Washburn, 211 Ariz. 553, 125 P.3d 373, 374 (Ariz. 2006)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • Mail Boxes v. Indus. Comm’n of Ariz., 181 Ariz. 119, 122, 888 P.2d 777, 780 (1995)

Audio Overview

Decision Documents

19F-H1918001-REL Decision – 696205.pdf

Uploaded 2025-10-08T07:06:32 (169.8 KB)





Briefing Doc – 19F-H1918001-REL


Briefing Document: Janicek v. Sycamore Vista No. 8 Homeowners Association

Executive Summary

This document synthesizes the findings from the Administrative Law Judge (ALJ) Decision in case number 19F-H1918001-REL-RHG, concerning a dispute between homeowner Jay Janicek (“Petitioner”) and the Sycamore Vista No. 8 Homeowners Association (“Respondent”). The central conflict revolved around the HOA Board of Directors’ unilateral amendment of the Association’s Bylaws on November 20, 2017, without a vote of the general membership.

The ALJ ruled decisively in favor of the Petitioner, invalidating the Board’s amendment. The decision hinged on the interpretation of the word “members” in Article XIII of the Bylaws, which governs amendments. The ALJ concluded that “members” unambiguously refers to the homeowners who constitute the Association, not the members of the Board of Directors. Consequently, the Board’s action was found to be outside its authority as defined in the governing documents.

Furthermore, the ALJ determined that the Board’s action violated Arizona’s Open Meeting Law, specifically ARIZ. REV. STAT. § 33-1804(B), because the required notice for a proposed bylaw amendment was not provided to the Association’s membership. The Respondent’s arguments were found to be unpersuasive. As a result of the ruling, the amendment was nullified, and the HOA was ordered to pay the Petitioner’s filing fee and a civil penalty of $250.

1. Case Overview

• Case Number: 19F-H1918001-REL-RHG

• Petitioner: Jay Janicek, a property owner and member of the Association.

• Respondent: Sycamore Vista No. 8 Homeowners Association (“the Association”).

• Presiding Judge: Administrative Law Judge Jenna Clark.

• Central Issue: “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.”

2. Procedural History and Timeline

• July 25, 2018: Petitioner Jay Janicek filed a petition with the Arizona Department of Real Estate.

• September 5, 2018: An initial evidentiary hearing was held at the Office of Administrative Hearings (OAH).

• September 25, 2018: The OAH issued an initial ALJ Decision in favor of the Petitioner.

• October 23, 2018: Respondent submitted a Request for Rehearing.

• November 7, 2018: The Department granted the Respondent’s request for a rehearing.

• March 5, 2019: A rehearing was held. Per a stipulated agreement, no new evidence was presented; instead, counsel for both parties submitted legal briefs and presented closing arguments.

• March 25, 2019: The final ALJ Decision was issued, reaffirming the initial ruling in favor of the Petitioner.

3. The Disputed Action of November 20, 2017

At a regular Board of Directors meeting held on November 20, 2017, the Association’s Board voted to approve a third amendment to the Association Bylaws. The amendment altered Article VIII Section 6(d), which pertains to the Association’s financial oversight.

• Original Clause: 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.”

• Amended Clause: Changed the requirement to “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 argued that while he had not been directly impacted, he could be in the future, as the amendment modified a prior third-party audit requirement. He asserted an interest as a homeowner in ensuring the Association’s financials were correct and not subject to self-auditing.

4. Analysis of Core Arguments

The case centered on the conflicting interpretations of the Association’s governing documents, particularly the clause authorizing Bylaw amendments.

4.1. Petitioner’s Position (Jay Janicek)

The Petitioner contended that any amendment to the Bylaws required a vote by the general membership of the Association, not just the Board of Directors.

• Textual Interpretation: Petitioner focused on 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.” He argued “members” refers to homeowners as defined in the Association’s Declaration, not Board members.

• Use of “Proxy”: The inclusion of the term “proxy” was cited as evidence supporting this interpretation, as Board members are not permitted to vote by proxy, whereas Association members are.

• Delineation of Powers: Petitioner noted that Article VII, which outlines the “Powers and Duties of the Board of Directors,” does not grant the Board the authority to amend the Bylaws.

• Intent of the Drafter: The argument was made that the Bylaws’ drafters intentionally used the words “directors” and “members” distinctly throughout the document, indicating that the use of “members” in the amendment clause was a deliberate choice to refer to the homeowners.

• Statutory Violation: The Petitioner argued the Board’s action violated Arizona’s Open Meeting Law (ARIZ. REV. STAT. § 33-1804), which requires specific notice to members between 10 and 50 days in advance of any meeting where a Bylaw amendment is proposed.

• Legal Precedent: The Petitioner cited Powell v. Washburn, which holds that restrictive covenants should be interpreted to give effect to the intention of the parties as determined from the language of the entire document.

4.2. Respondent’s Position (Sycamore Vista No. 8 HOA)

The Association argued that the Board of Directors possessed the authority to amend the Bylaws during a properly convened Board meeting.

• Board Authority: Respondent cited Article IV of the Bylaws, which states that the “affairs of this Association shall be managed by a Board.”

• Meeting Protocol: The action took place at a regular monthly Board meeting, as permitted by Article VI. The meeting on November 20, 2017, had three Board members present, constituting a quorum as required by the Bylaws.

• Interpretation of “Members”: The Respondent’s central argument was that the phrase “a quorum of members” in Article XIII referred to the members of the Board of Directors, thereby empowering them to pass the amendment.

• Compliance with Open Meeting Law: The Association argued its conduct was not a violation of the law because a necessary quorum of directors was present for the vote.

5. Administrative Law Judge’s Findings and Conclusions

The ALJ found the Petitioner’s arguments convincing and concluded that he had sustained his burden of proof by a preponderance of the evidence. The Respondent’s closing arguments were described as not persuasive.

• Violation of Statute: The Judge determined that the Board’s action violated ARIZ. REV. STAT. § 33-1804(B) because “there was no notice of the proposed amendment” provided to the Association members. The conduct was described as going “against the spirit of the legislative intent” of the statute due to a lack of transparency.

• Interpretation of Governing Documents: The decision firmly established the correct interpretation of the Bylaws.

◦ The terms “members” and “directors” are clearly and intentionally differentiated throughout the document. “Members” refers to the body of homeowners, while “directors” refers to the elected Board.

◦ The conclusion states: “The voices of few cannot speak for all, unless all have bestowed those few with the power and authority to speak on their behalf.”

◦ It was concluded that the Board “does not have power to act where authority is expressly delegated to the membership of the Association.”

• Invalidation of Board Action: The ALJ concluded that the Board’s action on November 20, 2017, was invalid because it was taken “in the absence of a quorum of Association members whereby a majority of said members voted in favor of the proposed third amendment.”

6. Final Order and Penalties

Based on the findings of fact and conclusions of law, the Administrative Law Judge issued the following orders:

1. Petition Granted: The Petitioner’s petition was granted.

2. Amendment Invalidated: The “third amendment to the Association Bylaws, as taken on November 20, 2017, is invalidated.”

3. Fees and Penalties: The Respondent (HOA) was ordered to:

◦ Pay the Petitioner the filing fee.

◦ Pay a civil penalty of $250.00 to the Planned Community Hearing Office Fund.

The decision, having been issued as a result of a rehearing, is binding on the parties.