Tag Archives: Open Meetings

Clifford S Burnes V. Saguaro Crest Homeowners’ Association

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Case Summary

Case ID 23F-H038-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-04-20
Administrative Law Judge Velva Moses-Thompson
Outcome partial
Filing Fees Refunded $1,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Clifford S. Burnes Counsel —
Respondent Saguaro Crest Homeowners' Association Counsel John T. Crotty, Esq.

Alleged Violations

A.R.S. § 33-1804
A.R.S. § 33-1804

Outcome Summary

Petitioner prevailed on the allegation that Respondent failed to provide notice of the board meeting in violation of A.R.S. § 33-1804, resulting in a refund of $500.00. Respondent prevailed on the allegation that the board meeting was required to be open, as the meeting was properly closed to receive legal advice under a statutory exception.

Why this result: Petitioner lost the open meeting claim because the meeting was protected by the legal advice exception under A.R.S. § 33-1804(A)(1).

Key Issues & Findings

Failure to provide notice of board meeting to members.

Petitioner alleged Respondent conducted an unnoticed board meeting regarding obtaining legal advice. Respondent conceded the meeting was unnoticed. The ALJ concluded Respondent was required to provide notice to members that it would be conducting a board meeting to consider legal advice from an attorney that would be closed to members, and failed to do so.

Orders: Respondent must pay Petitioner the filing fee of $500.00 within thirty (30) days. Respondent is directed to comply with the notice requirements of A.R.S. § 33-1804 going forward.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1804
  • A.R.S. § 33-1804(D)

Board meeting was not open to all members of the association.

Petitioner alleged the meeting, attended by two board members and an attorney, should have been open. Respondent contended the meeting was a permitted closed session to consider legal advice from an attorney regarding reorganization/disbanding, pursuant to A.R.S. § 33-1804(A)(1). The ALJ concluded the meeting was not required to be open because the board members were solely receiving legal advice from an attorney.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1804
  • A.R.S. § 33-1804(A)(1)

Analytics Highlights

Topics: HOA, Open Meetings, Notice Requirement, Legal Advice Exception, Planned Communities Act
Additional Citations:

  • A.R.S. § 33-1804
  • A.R.S. § 33-1804(A)(1)
  • A.R.S. § 33-1804(C)
  • A.R.S. § 33-1804(D)
  • A.R.S. § 33-1804(F)
  • A.R.S. § 32-2199(1)

Audio Overview

Decision Documents

23F-H038-REL Decision – 1036995.pdf

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23F-H038-REL Decision – 1050950.pdf

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Kathy J Green v. Cross Creek Ranch Community Association

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Case Summary

Case ID 22F-H2222064-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-09-29
Administrative Law Judge Sondra J. Vanella
Outcome total
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Kathy J. Green, MD Counsel —
Respondent Cross Creek Ranch Community Association Counsel Nick Eicher, Esq.

Alleged Violations

A.R.S. § 33-1804

Outcome Summary

The Administrative Law Judge affirmed the petition, finding that the HOA violated A.R.S. § 33-1804 by improperly holding a closed executive session primarily focused on reviewing homeowner comments on design guidelines that did not meet the statutory exceptions for closure. The ALJ ordered the HOA to reimburse the petitioner's filing fee and comply with the statute in the future.

Key Issues & Findings

Alleged violation of open meetings requirements regarding closed executive session.

The Respondent HOA held a closed executive session on June 9, 2022, noticed under A.R.S. § 33-1804(A)(1) (legal advice), to discuss approximately 72 homeowner comments on proposed design guideline revisions. The ALJ found that the meeting did not qualify under exceptions (A)(1) or (A)(2) as no legal advice was given and the discussion of most comments did not constitute pending or contemplated litigation.

Orders: Petitioner's petition is affirmed. Respondent must reimburse the Petitioner the $500.00 filing fee and is directed to comply with the requirements of A.R.S. § 33-1804 going forward.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • 33-1804(A)(1)
  • 33-1804(A)(2)
  • 33-1804(B)
  • 33-1804(F)

Analytics Highlights

Topics: HOA, Open Meetings, Executive Session, Legal Advice, Contemplated Litigation, Design Guidelines
Additional Citations:

  • 33-1804
  • 33-1804(A)
  • 33-1804(A)(1)
  • 33-1804(A)(2)
  • 33-1804(F)

Audio Overview

Decision Documents

22F-H2222064-REL Decision – 1003060.pdf

Uploaded 2025-10-09T03:39:46 (149.0 KB)

22F-H2222064-REL Decision – 989940.pdf

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Ronald Borruso v. Sunland Village East Association

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Case Summary

Case ID 21F-H2121062-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-09-21
Administrative Law Judge Thomas Shedden
Outcome none
Filing Fees Refunded $1,500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Ronald Borruso Counsel —
Respondent Sunland Village East Association Counsel Nicholas Nogami, Esq. and Nikolas Eicher, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1804

Outcome Summary

The Administrative Law Judge dismissed the petition filed by Ronald Borruso, finding that the Petitioner failed to meet the standard of proof (preponderance of the evidence) regarding the alleged violations of ARIZ. REV. STAT. § 33-1804 concerning meeting procedures and unauthorized board actions.

Why this result: The Petitioner failed to carry the burden of proof to show that the alleged violations of ARIZ. REV. STAT. § 33-1804 occurred.

Key Issues & Findings

Alleged violations regarding member speaking rights at May 27, 2021 meeting and unauthorized board meetings concerning Operations Manager job qualifications

Petitioner alleged the HOA violated open meeting laws by restricting member speaking rights during deliberations at a special meeting on May 27, 2021, and by holding improperly noticed meetings to approve job qualifications for an Operations Manager.

Orders: Ronald Borruso’s petition is dismissed.

Filing fee: $1,500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1804
  • ARIZ. ADMIN. CODE § R2-19-119
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)
  • State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)

Analytics Highlights

Topics: Open Meetings, Right to Speak, Statute Violation, Burden of Proof, Dismissal, Filing Fee
Additional Citations:

  • ARIZ. REV. STAT. § 33-1804
  • ARIZ. ADMIN. CODE § R2-19-119
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)
  • State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)

Audio Overview

Decision Documents

21F-H2121062-REL Decision – 912276.pdf

Uploaded 2025-10-09T03:37:37 (114.4 KB)

Clifford (Norm) S. Burnes v. Saguaro Crest Homeowners Association,

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Case Summary

Case ID 21F-H2120002-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2021-08-09
Administrative Law Judge Jenna Clark
Outcome partial
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Clifford Burnes and Maria Burnes Counsel Cynthia F. Burnes, Esq.
Respondent Saguaro Crest Homeowners Association, Inc. Counsel John Crotty, Esq.

Alleged Violations

CC&Rs Section 5
Architectural Design Guidelines Section 4.0
ARIZ. REV. STAT. § 33-1804
ARIZ. REV. STAT. § 33-1805

Outcome Summary

The prior decision granting Petitioners' petition regarding Issue 4 (violation of A.R.S. § 33-1805) and denying Issues 1-3 is affirmed. Respondent must reimburse 1/4 of the Petitioners’ filing fee ($125.00) and provide the missing email attachments.

Why this result: Petitioners failed to sustain their burden of proof regarding alleged violations of CC&Rs Section 5, Architectural Design Guidelines Section 4.0, and A.R.S. § 33-1804.

Key Issues & Findings

Alleged violation of CC&Rs Section 5

The Association allegedly allowed construction on Lot 7 without the submission of required documents to the Architectural Review Committee for approval.

Orders: Petition denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • CC&Rs Section 5

Alleged violation of Architectural Design Guidelines Section 4.0

The Association allegedly allowed construction on Lot 7 without the required $5,000.00 Construction Compliance Deposit.

Orders: Petition denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • Architectural Design Guidelines Section 4.0

Alleged violation of A.R.S. § 33-1804(A), (D), and (E)

The Association’s Board of Directors allegedly conducted an unnoticed meeting to consider matters relevant to Petitioner.

Orders: Petition denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 33-1804
  • ARIZ. REV. STAT. § 10-3821

Alleged violation of A.R.S. § 33-1805

The Association failed to timely and completely fulfill Petitioners’ records request, specifically by not providing missing email attachments referenced in the documentation.

Orders: Respondent must henceforth comply with ARIZ. REV. STAT. § 33-1805 and provide Petitioners with the missing email attachments related to the June 04, 2020, records request within 10-business days.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1805

Analytics Highlights

Topics: HOA dispute, records request, architectural control, construction deposit, open meetings, statutory violation, CC&R violation
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 33-1804
  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 10-3821
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Audio Overview

Decision Documents

21F-H2120002-REL-RHG Decision – 902726.pdf

Uploaded 2025-10-09T03:35:44 (239.9 KB)

Clifford (Norm) S. Burnes v. Saguaro Crest Homeowners Association,

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Case Summary

Case ID 21F-H2120002-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2021-08-09
Administrative Law Judge Jenna Clark
Outcome partial
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Clifford Burnes and Maria Burnes Counsel Cynthia F. Burnes, Esq.
Respondent Saguaro Crest Homeowners Association, Inc. Counsel John Crotty, Esq.

Alleged Violations

CC&Rs Section 5
Architectural Design Guidelines Section 4.0
ARIZ. REV. STAT. § 33-1804(A), (D), and (E)
ARIZ. REV. STAT. § 33-1805

Outcome Summary

The final decision affirmed the denial of Issues 1, 2, and 3, and the granting of Issue 4. The Association was found to have violated ARIZ. REV. STAT. § 33-1805 for failing to provide complete records in a timely manner, resulting in the reimbursement of 1/4 of the filing fee.

Why this result: Petitioners failed to sustain the burden of proof regarding alleged violations of CC&Rs Section 5, Architectural Design Guidelines Section 4.0, and A.R.S. § 33-1804(A), (D), and (E).

Key Issues & Findings

Alleged violation of CC&Rs Section 5

Petitioners alleged that the HOA violated the Covenants, Conditions and Restrictions (CC&Rs), Section 5, by allowing construction on Lot 7 without prior ARC approval of required documents.

Orders: Petition denied.

Filing fee: $125.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • CC&Rs Section 5

Alleged violation of Community Agricultural Design Guidelines Section 4.0

Petitioners alleged that the HOA violated the Architectural Design Guidelines, Section 4.0, by failing to require the required $5,000.00 Construction Compliance Deposit for Lot 7.

Orders: Petition denied.

Filing fee: $125.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • Architectural Design Guidelines Section 4.0
  • ARIZ. REV. STAT. § 10-3821

Alleged violation of A.R.S. § 33-1804(A), (D), and (E)

Petitioners alleged that the Board conducted an unnoticed closed meeting in violation of Arizona open meeting statutes.

Orders: Petition denied.

Filing fee: $125.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1804(A)
  • ARIZ. REV. STAT. § 33-1804(D)
  • ARIZ. REV. STAT. § 33-1804(E)
  • ARIZ. REV. STAT § 10-3821

Alleged violation of A.R.S. § 33-1805

Petitioners alleged that the HOA failed to timely and completely fulfill a records request submitted on June 04, 2020, specifically by failing to provide missing email attachments.

Orders: Respondent must reimburse 1/4 of Petitioners' filing fee ($125.00). Respondent must henceforth comply with A.R.S. § 33-1805 and provide the missing email attachments within 10-business days.

Filing fee: $125.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1805

Analytics Highlights

Topics: HOA Statute Violation, Records Request, Filing Fee Refund, Architectural Review, Open Meetings
Additional Citations:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199
  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 33-1804(A)
  • ARIZ. REV. STAT. § 33-1804(D)
  • ARIZ. REV. STAT. § 33-1804(E)
  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 10-3821
  • CC&Rs Section 5
  • Architectural Design Guidelines Section 4.0

Audio Overview

Decision Documents

21F-H2120002-REL Decision – 902726.pdf

Uploaded 2025-10-09T03:35:42 (239.9 KB)

Lewis Smith v. Desert Isle Homeowners Association, Inc.

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Case Summary

Case ID 18F-H1817020-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-05-29
Administrative Law Judge Velva Moses-Thompson
Outcome full
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Lewis Smith Counsel Mark J. Bainbridge, Esq.
Respondent Desert Isle Homeowners Association, Inc. Counsel William D. Condray, Esq.

Alleged Violations

ARIZ. REV. STAT. section 33-1804(F)

Outcome Summary

The Administrative Law Judge granted the Petitioner's request for relief, finding that the Respondent HOA violated ARIZ. REV. STAT. section 33-1804(F) by failing to provide adequate notice and agenda information regarding the proposed CC&R amendment to prohibit short term rentals. The Respondent was ordered to pay the filing fee to the Petitioner.

Key Issues & Findings

Violation of open meeting and notice requirements regarding CC&R amendment

The Board violated ARIZ. REV. STAT. section 33-1804(F) when it failed to provide notice or an agenda to all of its members of information that was reasonably necessary to inform the members that an amendment to the CC&Rs to prohibit short term members would be discussed at its special board of directors meetings held on November 8, 2017 and November 20, 2017.

Orders: Petitioner's petition was granted. Respondent was ordered to pay Petitioner the filing fee required by ARIZ. REV. STAT. section 32-2199.01.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. section 33-1804
  • ARIZ. REV. STAT. section 33-1804(B)
  • ARIZ. REV. STAT. section 33-1804(E)(1)
  • ARIZ. REV. STAT. section 33-1804(F)
  • ARIZ. REV. STAT. section 41-2198.01
  • ARIZ. REV. STAT. section 32-2199.02(A)
  • ARIZ. REV. STAT. section 32-2199.01

Analytics Highlights

Topics: Open Meetings, HOA Governance, Notice Requirements, CC&R Amendment, Short Term Rentals
Additional Citations:

  • ARIZ. REV. STAT. section 33-1804
  • ARIZ. REV. STAT. section 33-1804(B)
  • ARIZ. REV. STAT. section 33-1804(E)(1)
  • ARIZ. REV. STAT. section 33-1804(F)
  • ARIZ. REV. STAT. section 41-2198.01
  • ARIZ. REV. STAT. section 32-2199.02(A)
  • ARIZ. REV. STAT. section 32-2199.01

Audio Overview

Decision Documents

18F-H1817020-REL Decision – 629473.pdf

Uploaded 2025-10-08T07:04:05 (46.2 KB)

18F-H1817020-REL Decision – 629515.pdf

Uploaded 2025-10-08T07:04:06 (51.9 KB)

18F-H1817020-REL Decision – 636989.pdf

Uploaded 2025-10-08T07:04:07 (139.8 KB)





Briefing Doc – 18F-H1817020-REL


Administrative Law Judge Decision Briefing: Smith vs. Desert Isle Homeowners Association, Inc.

Executive Summary

This document provides a comprehensive analysis of the legal dispute between Petitioner Lewis Smith and Respondent Desert Isle Homeowners Association, Inc. The core of the case revolves around allegations that the HOA’s Board of Directors violated Arizona’s open meeting laws.

The Administrative Law Judge (ALJ) ultimately ruled in favor of the Petitioner, finding that the Desert Isle HOA violated ARIZ. REV. STAT. § 33-1804(F). The decision established that the Board failed to provide its members with agendas containing information “reasonably necessary to inform the members” about discussions concerning a proposed amendment to the Covenants, Conditions, and Restrictions (CC&Rs) that would prohibit short-term rentals. This failure occurred during Board of Directors meetings held on November 8 and November 20, 2017.

As a result of this finding, the Petitioner’s petition was granted, and the Respondent was ordered to pay the Petitioner’s filing fee. The ruling underscores the state’s policy that planned community meetings must be conducted with transparency, and agendas must provide sufficient detail for members to understand the matters to be discussed or decided.

Case Overview

Case Number

18F-H1817020-REL

Tribunal

Office of Administrative Hearings (Phoenix, Arizona)

Petitioner

Lewis Smith

Respondent

Desert Isle Homeowners Association, Inc.

Administrative Law Judge

Velva Moses-Thompson

Hearing Date

April 16, 2018

Decision Date

May 29, 2018

Central Allegation

On or about December 5, 2017, Petitioner Lewis Smith filed a petition with the Arizona Department of Real Estate alleging that the Desert Isle HOA violated ARIZ. REV. STAT. § 33-1804. The petition contended that the Board of Directors discussed and advanced a significant CC&R amendment without proper notification to the association members.

The petition states, in part:

“All Board members have been meeting to discuss and add an amendment to the CC&R’s [sic] Prohibiting short term renters. These meetings have not been conducted openly and no notice or agenda were provided containing information necessary to inform members of the association of the matters to be discussed… At no time was the issue to add an amendment for short term rentals properly noticed or on an agenda for discussion before it became a ballot vote.”

Chronology of Events

October 23, 2017:

• Lewis Smith, William H. Winn, Kevin Barnett, and Chester Jay submit a formal request to the Board for a special members’ meeting.

• The stated purposes of the meeting were to:

1. Select and fund an attorney to update the HOA’s bylaws and CC&Rs to comply with current Arizona law.

2. Discuss obtaining a reserve study for the association’s capital needs.

3. Discuss a separate attorney letter regarding HOA governance.

October 24, 2017:

• Board President Doug Robinson responds to the request, expressing support for a meeting but stating that more than 30 days would be needed to gather supporting documentation.

October 31, 2017:

• A second group of homeowners, including Board members Greg Yacoubian, Doug Robinson, Curt Carlson, and Mike Andrews, submits a request to add an item to the agenda of the forthcoming special meeting.

• Their request was to “amend the CC&Rs by adding a section prohibiting ‘Short Term Rentals’ and defining minimum time allowed for Rentals.”

November 5, 2017:

• The Board provides an agenda for a Board of Directors meeting scheduled for November 8, 2017. The agenda did not include any item related to the proposed amendment to prohibit short-term rentals.

November 8, 2017:

• The Board of Directors meeting is held.

• The Board votes to call a special members’ meeting before November 23, 2017, to address the two petitions.

• During the “BOARD INPUT” section, member Curt Carlson “spoke of past issues about short term renting,” but this was not a formal agenda item for discussion or action.

November 10, 2017:

• The Board emails Lewis Smith, acknowledging his petition and requesting a “narrative explanation from you on each of your subjects” by November 17, 2017, to prepare the meeting information package for all homeowners.

November 18, 2017:

• The Board sends an agenda for another Board of Directors meeting scheduled for November 20, 2017.

• The agenda lists “Review/approval of special meeting mailing package” as a topic but provides no specific details regarding the proposed amendment on short-term rentals.

December 1, 2017:

• Board President Doug Robinson emails all homeowners to explain the upcoming special meeting on December 16, 2017.

• The email states: “To avoid cost and time we put both petitions together and are having one meeting that will required [sic] all owners to vote for or against these two petitions.”

• The agenda for the December 16 meeting is attached, which explicitly lists a vote on prohibiting short-term rentals.

December 16, 2017:

• The special members’ meeting is held. A vote is taken on the proposed amendment to prohibit short-term rentals.

• Vote Result: 9 homeowners in favor, 6 homeowners against.

Legal Framework and Analysis

The case centered on the interpretation and application of Arizona Revised Statutes related to planned communities.

Key Statute: ARIZ. REV. STAT. § 33-1804

This statute governs meetings and notices for planned communities. The judge’s decision rested heavily on the policy outlined in subsection (F).

• § 33-1804(B): Requires that notice for any special meeting of members must state the purpose, including “the general nature of any proposed amendment to the declaration or bylaws.”

• § 33-1804(E)(1): Requires that the agenda for a Board of Directors meeting be made available to all members in attendance.

• § 33-1804(F): This subsection contains the state’s declaration of policy, which was central to the judge’s conclusion. It states:

Burden of Proof

The Petitioner, Lewis Smith, bore the burden of proving that the Respondent violated the statute by a “preponderance of the evidence.” This standard is defined as evidence that is sufficient “to incline a fair and impartial mind to one side of the issue rather than the other.”

Findings and Conclusion of the Court

The Administrative Law Judge found that the Petitioner successfully met the burden of proof. The decision concludes that the agendas for the November 8 and November 20 Board of Directors meetings were legally insufficient.

Conclusion of Law #4:

“Petitioner established by a preponderance of the evidence that the Board violated ARIZ. REV. STAT. section 33-1804(F) when it failed to provide notice or an agenda to all of its members of information that was reasonably necessary to inform the members that an amendment to the CC&Rs to prohibit short term members would be discussed at its special board of directors meetings held on November 8, 2017 and November 20, 2017.”

Final Order

• The Petitioner’s petition in the matter was granted.

• Pursuant to ARIZ. REV. STAT. § 32-2199.02(A), the Respondent (Desert Isle HOA) was ordered to pay the Petitioner the filing fee.

• The Order is legally binding unless a rehearing is requested with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.

Parties and Legal Representation

Address

Legal Counsel

Petitioner

Lewis Smith
5459 E. Sorrento Dr.
Long Beach, CA 90803

Mark J. Bainbridge, Esq.
The Bainbridge Law Firm LLC
2122 E. Highland Ave. Ste. 250
Phoenix, AZ 85016-4779

Respondent

Desert Isle Homeowners Association, Inc.
411 Riverfront Dr. #7
Bullhead City, AZ 86442

William D. Condray, Esq.
2031 Highway 95 Ste. 2
Bullhead City, AZ 86442-6004


Lewis Smith v. Desert Isle Homeowners Association, Inc.

Posted on by

Case Summary

Case ID 18F-H1817020-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-05-29
Administrative Law Judge Velva Moses-Thompson
Outcome full
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Lewis Smith Counsel Mark J. Bainbridge, Esq.
Respondent Desert Isle Homeowners Association, Inc. Counsel William D. Condray, Esq.

Alleged Violations

ARIZ. REV. STAT. section 33-1804(F)

Outcome Summary

The Administrative Law Judge granted the Petitioner's request for relief, finding that the Respondent HOA violated ARIZ. REV. STAT. section 33-1804(F) by failing to provide adequate notice and agenda information regarding the proposed CC&R amendment to prohibit short term rentals. The Respondent was ordered to pay the filing fee to the Petitioner.

Key Issues & Findings

Violation of open meeting and notice requirements regarding CC&R amendment

The Board violated ARIZ. REV. STAT. section 33-1804(F) when it failed to provide notice or an agenda to all of its members of information that was reasonably necessary to inform the members that an amendment to the CC&Rs to prohibit short term members would be discussed at its special board of directors meetings held on November 8, 2017 and November 20, 2017.

Orders: Petitioner's petition was granted. Respondent was ordered to pay Petitioner the filing fee required by ARIZ. REV. STAT. section 32-2199.01.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. section 33-1804
  • ARIZ. REV. STAT. section 33-1804(B)
  • ARIZ. REV. STAT. section 33-1804(E)(1)
  • ARIZ. REV. STAT. section 33-1804(F)
  • ARIZ. REV. STAT. section 41-2198.01
  • ARIZ. REV. STAT. section 32-2199.02(A)
  • ARIZ. REV. STAT. section 32-2199.01

Analytics Highlights

Topics: Open Meetings, HOA Governance, Notice Requirements, CC&R Amendment, Short Term Rentals
Additional Citations:

  • ARIZ. REV. STAT. section 33-1804
  • ARIZ. REV. STAT. section 33-1804(B)
  • ARIZ. REV. STAT. section 33-1804(E)(1)
  • ARIZ. REV. STAT. section 33-1804(F)
  • ARIZ. REV. STAT. section 41-2198.01
  • ARIZ. REV. STAT. section 32-2199.02(A)
  • ARIZ. REV. STAT. section 32-2199.01

Audio Overview

Decision Documents

18F-H1817020-REL Decision – 629473.pdf

Uploaded 2025-10-09T03:32:20 (46.2 KB)

18F-H1817020-REL Decision – 629515.pdf

Uploaded 2025-10-09T03:32:20 (51.9 KB)

18F-H1817020-REL Decision – 636989.pdf

Uploaded 2025-10-09T03:32:20 (139.8 KB)





Briefing Doc – 18F-H1817020-REL


Administrative Law Judge Decision Briefing: Smith vs. Desert Isle Homeowners Association, Inc.

Executive Summary

This document provides a comprehensive analysis of the legal dispute between Petitioner Lewis Smith and Respondent Desert Isle Homeowners Association, Inc. The core of the case revolves around allegations that the HOA’s Board of Directors violated Arizona’s open meeting laws.

The Administrative Law Judge (ALJ) ultimately ruled in favor of the Petitioner, finding that the Desert Isle HOA violated ARIZ. REV. STAT. § 33-1804(F). The decision established that the Board failed to provide its members with agendas containing information “reasonably necessary to inform the members” about discussions concerning a proposed amendment to the Covenants, Conditions, and Restrictions (CC&Rs) that would prohibit short-term rentals. This failure occurred during Board of Directors meetings held on November 8 and November 20, 2017.

As a result of this finding, the Petitioner’s petition was granted, and the Respondent was ordered to pay the Petitioner’s filing fee. The ruling underscores the state’s policy that planned community meetings must be conducted with transparency, and agendas must provide sufficient detail for members to understand the matters to be discussed or decided.

Case Overview

Case Number

18F-H1817020-REL

Tribunal

Office of Administrative Hearings (Phoenix, Arizona)

Petitioner

Lewis Smith

Respondent

Desert Isle Homeowners Association, Inc.

Administrative Law Judge

Velva Moses-Thompson

Hearing Date

April 16, 2018

Decision Date

May 29, 2018

Central Allegation

On or about December 5, 2017, Petitioner Lewis Smith filed a petition with the Arizona Department of Real Estate alleging that the Desert Isle HOA violated ARIZ. REV. STAT. § 33-1804. The petition contended that the Board of Directors discussed and advanced a significant CC&R amendment without proper notification to the association members.

The petition states, in part:

“All Board members have been meeting to discuss and add an amendment to the CC&R’s [sic] Prohibiting short term renters. These meetings have not been conducted openly and no notice or agenda were provided containing information necessary to inform members of the association of the matters to be discussed… At no time was the issue to add an amendment for short term rentals properly noticed or on an agenda for discussion before it became a ballot vote.”

Chronology of Events

October 23, 2017:

• Lewis Smith, William H. Winn, Kevin Barnett, and Chester Jay submit a formal request to the Board for a special members’ meeting.

• The stated purposes of the meeting were to:

1. Select and fund an attorney to update the HOA’s bylaws and CC&Rs to comply with current Arizona law.

2. Discuss obtaining a reserve study for the association’s capital needs.

3. Discuss a separate attorney letter regarding HOA governance.

October 24, 2017:

• Board President Doug Robinson responds to the request, expressing support for a meeting but stating that more than 30 days would be needed to gather supporting documentation.

October 31, 2017:

• A second group of homeowners, including Board members Greg Yacoubian, Doug Robinson, Curt Carlson, and Mike Andrews, submits a request to add an item to the agenda of the forthcoming special meeting.

• Their request was to “amend the CC&Rs by adding a section prohibiting ‘Short Term Rentals’ and defining minimum time allowed for Rentals.”

November 5, 2017:

• The Board provides an agenda for a Board of Directors meeting scheduled for November 8, 2017. The agenda did not include any item related to the proposed amendment to prohibit short-term rentals.

November 8, 2017:

• The Board of Directors meeting is held.

• The Board votes to call a special members’ meeting before November 23, 2017, to address the two petitions.

• During the “BOARD INPUT” section, member Curt Carlson “spoke of past issues about short term renting,” but this was not a formal agenda item for discussion or action.

November 10, 2017:

• The Board emails Lewis Smith, acknowledging his petition and requesting a “narrative explanation from you on each of your subjects” by November 17, 2017, to prepare the meeting information package for all homeowners.

November 18, 2017:

• The Board sends an agenda for another Board of Directors meeting scheduled for November 20, 2017.

• The agenda lists “Review/approval of special meeting mailing package” as a topic but provides no specific details regarding the proposed amendment on short-term rentals.

December 1, 2017:

• Board President Doug Robinson emails all homeowners to explain the upcoming special meeting on December 16, 2017.

• The email states: “To avoid cost and time we put both petitions together and are having one meeting that will required [sic] all owners to vote for or against these two petitions.”

• The agenda for the December 16 meeting is attached, which explicitly lists a vote on prohibiting short-term rentals.

December 16, 2017:

• The special members’ meeting is held. A vote is taken on the proposed amendment to prohibit short-term rentals.

• Vote Result: 9 homeowners in favor, 6 homeowners against.

Legal Framework and Analysis

The case centered on the interpretation and application of Arizona Revised Statutes related to planned communities.

Key Statute: ARIZ. REV. STAT. § 33-1804

This statute governs meetings and notices for planned communities. The judge’s decision rested heavily on the policy outlined in subsection (F).

• § 33-1804(B): Requires that notice for any special meeting of members must state the purpose, including “the general nature of any proposed amendment to the declaration or bylaws.”

• § 33-1804(E)(1): Requires that the agenda for a Board of Directors meeting be made available to all members in attendance.

• § 33-1804(F): This subsection contains the state’s declaration of policy, which was central to the judge’s conclusion. It states:

Burden of Proof

The Petitioner, Lewis Smith, bore the burden of proving that the Respondent violated the statute by a “preponderance of the evidence.” This standard is defined as evidence that is sufficient “to incline a fair and impartial mind to one side of the issue rather than the other.”

Findings and Conclusion of the Court

The Administrative Law Judge found that the Petitioner successfully met the burden of proof. The decision concludes that the agendas for the November 8 and November 20 Board of Directors meetings were legally insufficient.

Conclusion of Law #4:

“Petitioner established by a preponderance of the evidence that the Board violated ARIZ. REV. STAT. section 33-1804(F) when it failed to provide notice or an agenda to all of its members of information that was reasonably necessary to inform the members that an amendment to the CC&Rs to prohibit short term members would be discussed at its special board of directors meetings held on November 8, 2017 and November 20, 2017.”

Final Order

• The Petitioner’s petition in the matter was granted.

• Pursuant to ARIZ. REV. STAT. § 32-2199.02(A), the Respondent (Desert Isle HOA) was ordered to pay the Petitioner the filing fee.

• The Order is legally binding unless a rehearing is requested with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.

Parties and Legal Representation

Address

Legal Counsel

Petitioner

Lewis Smith
5459 E. Sorrento Dr.
Long Beach, CA 90803

Mark J. Bainbridge, Esq.
The Bainbridge Law Firm LLC
2122 E. Highland Ave. Ste. 250
Phoenix, AZ 85016-4779

Respondent

Desert Isle Homeowners Association, Inc.
411 Riverfront Dr. #7
Bullhead City, AZ 86442

William D. Condray, Esq.
2031 Highway 95 Ste. 2
Bullhead City, AZ 86442-6004