ALJDEC decisions subject to certification as final
21F-H2120002-REL · Department of Real Estate - H/C · 2021-03-22
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Clifford (Norm) S. Burnes & Maria Burnes,
Petitioners,
vs.
Saguaro Crest Homeowners Association, Inc.,
Respondent.
No. 21F-H2120002-REL
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: December 11, 2020 at 1:00 PM, March 01, 2021 at 9:00 AM, and March 03, 2021 at 9:00 AM.
APPEARANCES: Jacob A. Kubert, Esq., and Cynthia F. Burnes, Esq. appeared on behalf of Clifford (Norm) and Maria Burnes (“Petitioners”) with Petitioners and Debora Brown as witnesses. John Crotty, Esq. and Kelsea Dressen, Esq. appeared on behalf of Saguaro Crest Homeowners Association (“Respondent”) with Esmerelda Martinez as a witness. Sadot Negreté observed.
ADMINISTRATIVE LAW JUDGE: Jenna Clark.
_____________________________________________________________________
After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Order to the Commissioner of the Arizona Department of Real Estate (“Department”).
FINDINGS OF FACT
Background and Procedure
The Department is authorized by statute to receive and to decide petitions for hearings from members of homeowners’ associations and from homeowners’ associations in Arizona.
On or about July 17, 2020, Petitioners filed a 4-issue petition with the Department which alleged that (1) the Association allowed construction to take place on Lot 7 of the Saguaro Crest Community without the submission of required documents to the Association’s Architectural Review Committee for approval in violation of section 5.5. of the Covenants, Conditions and Restrictions (“CC&Rs”); (2) the Association allowed construction to take place on Lot 7 of the Saguaro Crest Community without the required Construction Compliance Deposit in violation of section 4.0 of the Association’s Architectural Design Guidelines; (3) the Association’s Board of Directors conducted an unnoticed meeting to consider matter relevant to Petitioner Norm Burns on or about May 20, 2020, in violation of Arizona Revised Statute (“Ariz. Rev. Stat.”) § 33-1804(A), (D), and (E)(1); and (4) the Association failed to fulfill Petitioners’ records request in violation of Ariz. Rev. Stat. § 33-1805.
On or about August 11, 2020, Respondent returned its Answer to the Department whereby it denied all 4 of Petitioners’ claims.
On August 19, 2020, the Department referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on October 14, 2020, to determine whether the following violations occurred:
Issue 1 – Alleged violation of CC&Rs Section 5
Issue 2 – Alleged violation of Community Agricultural Design Guidelines Section 4.0
Issue 3 – Alleged violation of A.R.S. § 33-1804(A), (D), and (E)
Issue 4 – Alleged violation of A.R.S. § 33-1805
The Parties and Governing Documents
Respondent is a homeowners’ association whose members own properties in the Saguaro Crest residential real estate development located in Tucson, Arizona. Membership for the Association is compromised of the Saguaro Crest subdivision.
Petitioner is a Saguaro Crest subdivision property owner and a member of the Association.
The Association is governed by its Covenants, Conditions, and Restrictions (“CC&Rs”), and overseen by a Board of Directors (“the Board”). The CC&Rs empower the Association to control certain aspects of property use within the development. When a party buys residential property in the development, the party receives a copy of the CC&Rs and agrees to be bound by their terms. Thus, the CC&Rs form an enforceable contract between the Association and each property owner.
An architectural committee is typically charged by an Association’s CC&Rs with the exclusive task of implementing Architectural Guidelines in order to maintain aesthetic standards within the community, and preserving the value of the development. These Architectural Guidelines establish an association's policies and procedures for alterations, modifications and improvements to an owners' property, common areas, and exclusive use common areas. Having governing rules and bylaws in place, including established architectural rules, helps ensure that an Association meets its fiduciary duty to care for and act in the best interests of the Association.
The Association’s Amended CC&Rs were recorded with the Pima County Recorder’s Office on August 15, 2006.
Article 5 of the CC&Rs pertains to architectural and landscape control and is divided into 8 subsections regarding the Association’s Architectural Committee, Purpose, Architectural Standards, Building Envelope, Approval of Plans for Improvements or Alteration, Decision of the Architectural Committee; Approval or Disapproval, Variances, and General Provisions.
The Associations Architectural Design Guidelines were adopted by the Association’s Board of Directors on May 12, 2018.
Section 4.0 of the Architectural Design Guidelines states that a refundable $5,000.00 Construction Compliance Deposit is required.
Hearing Evidence
Petitioners testified on their own behalf, called Debora Brown as a witness, and submitted exhibits A-HH. Respondent called Esmerelda Martinez as a witness and submitted exhibits 1-6 into the record. The Department’s electronic file and Notice of Hearing were also admitted into the record. The substantive evidence of record is as follows:
Issue #1 - Alleged violation of CC&Rs Section 5
The Association is an Arizona non-profit corporation created on June 18, 2009. The subdivision consists of 18 Lots.
As of the date of the hearing the Board of Directors was comprised of three persons: Esmerelda Martinez – President, Dave Madill – Vice President, and Julie Stevens – Treasurer. All Board positions are voluntary and unpaid.
Esmerelda Martinez (“President Martinez”) began her tenure on December 02, 2017. Dave Madill began his tenure on January 20, 2018. Julie Stevens began her tenure on January 20, 2018.
On January 27, 2018, the Board of Directors executed a document naming Jamie Argueta, Joseph Martinez, and Norm Burnes (“Petitioner”) to serve as Architecture Review Committee (“ARC”) Members, effective December 05, 2017. ARC Members were advised that the committee’s main goal “is to make the new home look like it belongs in the neighborhood – both in style and colors.”
The ARC Members had previously been provided a copy of construction plans for Lot 7, owned by Raul and Ramona Martinez, on December 16, 2017, for their review.
On January 03, 2018, the ARC Members unanimously approved of the new home construction on Lot 7.
On October 16, 2017, Mr. Martinez submitted site plans and building specifications to the ARC. On October 23, 2017, the ARC responded to Mr. Martinez regarding issues with his proposed home placement, septic and driveway location, and color scheme.
At an unknown time in 2018 additional construction plans were reviewed by the ARC.
On May 04, 2018, the construction plans for Lot 7 were approved by Pima County.
Construction of Lot 7 began on an unknown date in 2018. Contraction has not been completed.
Petitioners own Lot 6, which is next door to Lot 7.
On October 21, 2018, Petitioner notified the Board of his concerns regarding the development of Lot 7. Petitioner included several photos depicting the view he believed he was “going to lose” and the build that would “be in my backyard.”
On April 14, 2020, after construction on Lot 7 began, Petitioner issued the following letter of concern about the placement of the Martinez’s residence with the Board of Directors and the ARC:
Having the house in Lot 7 house so close to my back yard is a constant source of stress for my family. Every day there are vehicles with their headlights pointing directly into the back windows of my house. That will never end. A large part of the value to me for my house was the view from the back patio. That's gone now. The view from my kitchen and bedroom windows are destroyed. People in the house on Lot 7now have a direct view into our family member's windows. I feel our privacy is violated / gone. We are not happy living in this house. During the approval process for the Lot 7 home Jamie mentions how the house placement was originally further back and that "once the home was shown as moved lower and closer to the street, it was approved per the ARC request." Mr. Martinez did not honer the approved plan and has placed the house in the original position. Jamie was correct when he said In that original plan, the building itself would have obstructed an even more significant portion of the direct view from your backyard. That is what happened. When the frame for the foundation was laid out I reported the error to Joseph. The purpose of the ARC is to make sure the houses here are within harmony, to look like they belong in the neighborhood. Because of the (mis) placement of the house on lot 7, From my point of view (Literally) the house is not harmonious and does not "look like it belongs". I am asking the home owners association and the ARC to help rectify this error.
(All errors in original.)
On May 05, 2020, the Association responded to Petitioner that, “The construction location of the home on Lot 7 cannot be held accountable by referencing an aerial map. The construction location of the home should be held accountable by onsite survey verification per construction drawing dimensions.”
Issue 2 – Alleged violation of Community Agricultural Design Guidelines Section 4.0
On an unknown date in 2013, the Martinez family bought Lots 7 and 13 from Jamie Argueta. At the time of the sale, Mr. Argueta was a member of the Association’s ARC.
In a meeting held on May 03, 2020, the Board of Directors decided, pursuant to Ariz. Rev. Stat. § 10-3821, to honor a Construction Compliance Deposit Waiver previously granted to the Martinez family.
The discretionary waiver was originally granted during an economic turndown to incentivize purchases in the subdivision.
However, the Association does not possess a corporate record that any such Construction Compliance Deposit Waiver was previously granted to the Martinez family.
Issue 3 – Alleged violation of A.R.S. § 33-1804(A), (D), and (E)
On April 18, 2020, Petitioner requested a meeting with the Board of Directors to discuss the placement of the Martinez residence on Lot 7. That same day, President Martinez agreed to hold a meeting with Petitioner and the Board the following day at 10:00 a.m.
During his meeting with the Board on April 18, 2020, Petitioner complained to the Board that the construction on Lot 7 was obscuring the mountain views from his home, specifically from his backyard. Petitioner asked the Board to require Mr. Martinez (1) pay to construct a wall tall enough block his home’s view from Petitioners’ property, (2) place the exterior lighting on the home below said wall to prevent reflection into Petitioners’ home, (3) relocate the portable bathrooms on site outside of Petitioners’ view, and (4) remit a $5,000.00 payment to the Association as a construction deposit.
Petitioner was advised that his lighting concern was the only item of contention within the purview of the Association’s jurisdiction. Petitioner was also reminded that neither he nor any of his other ARC Members had required a deposit as a requirement of ARC approval. The Board noted that it would be unfair for Officers to ask for a deposit after-the-fact because it would be unfair to the Martinez family. The Board did, however, agree to convey Petitioners’ wishes to Mr. Martinez, but asked Petitioner to recuse himself from the discussion. Jesus Carranza served as a substitute ARC Member for the meeting with Mr. Martinez whereby Petitioner’s lists of request was delineated.
Neither Petitioner nor Mr. Martinez agreed to pay for the cost of a wall to be erected between their property lines, nor did either party agree to split the associated costs.
On May 20, 2020, acting under authority enumerated in Ariz. Rev. Stat § 10-3821, the Association restricted Petitioner’s participation as an ARC Member regarding all issued related to the construction of Lot 7. Specifically, the Board notes, in pertinent part, that “[T]he Board of Directors hereby unanimously agree that [Petitioner] be removed as an ARC Member for all ARC related matters concerning Lot 7.”
The Association, through its Board of Directors, obtained individual signatures as unanimous consent in order to move forward with the unnoticed closed meeting.
On May 21, 2020, during a meeting between Petitioner and the Board, a copy of the meeting notes were delivered to Petitioner. Petitioner was advised that the lights he was concerned about were temporary, and that Mr. Martinez would have the portable bathroom relocated out of Petitioner’s line of sight. Petitioner was further advised that Mr. Martinez declined to pay for a wall between the parties’ property lines, and that he had also received a Construction Compliance Deposit waiver from the ARC Members that preceded Petitioner.
Issue 4 – Alleged violation of A.R.S. § 33-1805
On June 04, 2020, Petitioners issued the following records request, in pertinent part, to the Association:
I am requesting to review ALL of the documents of the HOA, including financial documents. Additionally, I am requesting a copy of all HOA documents to be provided to me regarding the following items. As per the statute, the review should be fulfilled, and the copies should be provided within ten (10) days.
1. Any meetings where my family or I were discussed, or decisions were made regarding me or my family.
2. Any meetings where issues that I addressed were discussed, or decisions were made regarding any issues that I addressed.
3. I understand that Raul and Jaime have both stated that there is no documentation regarding the CCD waiver on Lot 7. Please confirm that there are no HOA records about that matter. If such records do exist, please provide me with a copy of those records.
4. Any meetings where any activity regarding Lot #7 were discussed or decisions were made.
5. All current insurance policies. Please see Art 13 of the CC&Rs.
6. All past and present ARC guidelines and the paperwork showing how those guidelines were adopted. Please provide the minutes of any meetings where the Members approved those ARC guidelines. Also provide evidence that the Amended Architectural Guidelines were recorded in Pima county.
7. A copy of all of the Project Documents as defined in Section 1.19 of the CC&Rs.
8. A copy of all documents submitted regarding Lot 7.
9. A copy of all final documents approved by the county for Lot 7.
10. The construction drawings for Lot 7 with dimensions showing the placement of the structure on the lot.
11. A copy of all actions taken by the Board of Directors under ARS Section 10-3821
12. A copy of all discussions and approvals by the ARC or the Board of Directors regarding Lot 7.
13. A copy of all documents showing written approval of new construction on any of the lots as required by ARS 33-1817 (B)(2)(b).
14. A copy of written reports following on-site formal reviews for the purpose of determining compliance with the approved plans of all new construction on any of the lots as required by ARS 33-1817 (B)(2)(c) and 33-1817 (B)(2)(d).
15. All notes, minutes, and findings, regarding the complaint filed by Norm and Maria Burnes on April 18, 2020.
16. On May 21, 2020, an “HOA Violation Complaint Form” was sent to Norm Burnes.
Please provide a copy of all records where that form was adopted by the HOA.
17. Please provide a copy of all complaints filed on the form listed in 16 above.
(All errors and emphases in the original.)
On June 8, 2020, Petitioners received an email from the Association about reviewing the requested documents. Specifically, Petitioners were advised that the requested documents, excluded from nondisclosure, would be available for review on June 16, 2020, from 10:00 a.m. until 11:00 a.m.
On June 16, 2020, the Association met with Petitioners. Petitioners were presented with a 40-item outline identifying which documents fulfilled each of Petitioner’s enumerated records requests. A total of 342 pages were identified. Petitioners were permitted to review all 40 documents. Petitioners brought their own scanning machine but were prohibited from using it. Alternatively, Petitioners requested copies of all 40 documents.
On June 17, 2020, Petitioner made another request for a copy of the documents.
On June 21, 2020, Petitioner again requested copies of the documents from the Association.
On June 23, 2020, the Association instructed Petitioner to submit a formal written request using the Association’s Request for Review of the Association’s Records form. The Association also provided Petitioner with 2 pick-up options for the documents.
On June 24, 2020, Petitioner paid $51.30 to the Association, signed his acknowledgement accepting review of the documents, and purchase agreement for the copies.
Later that day, Petitioner notified the Association that “[S]ome of the attachments for some emails are not included within in this package from this documentation.” [sic]
On June 30, 2020, the Board confirmed their receipt of Petitioner’s June 04, 2020, and June 21, 2020, letters. Petitioner was advised that due to the nature and volume of Petitioner’s requests, and their concerns regarding statutory and community document compliance, the Board needed to schedule an open meeting to discuss how to proceed.
Additional Evidence
The Association does not have the authority to halt construction that has begun after it has been approved by the local building authority, not does the Association have the authority to inspect or issue a citation to a construction site for alleged code compliance violations.
The ARC was not afforded an opportunity to approve or deny changes or modifications made to Lot 7 plans, if any, after January 03, 2018, and was not made aware that any changes or modifications had taken place.
Closing Arguments
Petitioners’ closing argument
In closing, Petitioners argued the construction on Lot 7 does not align with the plans that were approved by the ARC, therefore the ARC is in violation for not requiring Mr. Martinez to submit plans for the ARC’s approval before making unapproved plan modifications.
Petitioners also argued that because neither party can produce a document confirming that Mr. Martinez applied for a construction compliance waiver and/or Board meeting minutes that confirm he was approved for said waiver, that the ARC is in violation and as a result must recoup the $5,000.00 fee from the lot owner.
Petitioners further argue that the Board’s meetings with Petitioner and Mr. Martinez on April 18, 2020, regarding Petitioner’s complaints about the construction on Lot 7, violate the State’s open meeting laws because no notice was provided beforehand. Petitioners also argue that Petitioner was improperly removed from the ARC by Board order on May 20, 2020, in violation of state law.
Lastly, Petitioners argue that Petitioner’s June 04, 2020, records request included 2 provisions: to review all of the records of the Association, and for the Association to provide Petitioner copies of 19 specifically numerated documents. Petitioners clarify that their only grievance is with the documents, or lack thereof, that were provided as a result of Petitioner’s request, because they were provided more than 10-business days after the request was made in violation of state law.
Ultimately, Petitioners asked the Tribunal to issue an order granting their appeal, including requiring the Association to comply with applicable laws and community documents. Petitioners also asked that Respondent be required to rescind its letter dated May 20, 2020, and be required to provide Petitioners with all documents listed in their June 04, 2020, records request as soon as possible. Petitioners also asked that their filing fees be reimbursed, and that a civil fine be imposed against Respondent if it is held in violation of any alleged charge.
Respondent’s closing argument
In closing, Respondent argued that Petitioner was on the ARC when the plans for Lot 7 were approved, and that he was not removed from the ARC but restricted from participating on decision regarding Lot 7due to the number of personal complaints he had levied against Mr. Martinez. Respondent opined that Petitioner’s quarrel stemmed from alleged deviation of approved Mr. Martinez made after the ARC gave its approval, and argued that Petitioners’ complaint with the Department was misplaced.
As for the construction compliance deposit, Respondent argued that the facts clearly established that the Association has the authority to waive it, as was done in this matter. Respondent opined that the issue was really whether a proper construction compliance waiver was issued to Lot 7. Respondent argued that Petitioners failed to provide any evidence to establish that the waiver was never issued, or alternatively that it was improperly issued to Lot 7.
Regarding Petitioner’s Lot 7 restriction on the ARC, Respondent argued that Petitioner himself agreed to the restriction to avoid the appearance of impropriety and conflict of interest in visiting Mr. Martinez’s residence on April 18, 2020 with the rest of the ARC and Board. Thus, Respondent further argued, no dispute existed.
To Petitioners’ untimely document request allegation, Respondent argued that (1) the request was so vague as to make it impossible to comply with, and (2) that Respondent needed to provide Petitioners an opportunity to review the documents, or at least the documents they believed were encompassed by Petitioners’ request, within 10-business days (i.e. June 18, 2020). Respondent argued that it complied because not only did it provide Petitioners an opportunity to view the requested documents on June 16, 2020. Respondent also argued that at the June 16, 2020, meeting Petitioner clarified what he was looking for, the Association provided copies of the exact documents to Petitioner that he requested on June 24, 2020, and Petitioner signed an acknowledgement that he was satisfied with the documentation provided. Again, Respondent argued no dispute existed.
Ultimately, Respondent beseeched the Tribunal to deny Petitioners’ appeal.
Conclusions of Law
This matter lies within the Department’s jurisdiction pursuant to Ariz. Rev. Stat. §§ 32-2102 and 32-2199 et seq., regarding a dispute between an owner and a planned community association. The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities as long as the petitioner has filed a petition with the department and paid a filing fee as outlined in Ariz. Rev. Stat. § 32-2199.05.
Pursuant to Ariz. Rev. Stat. §§ 32-2199(2), 32-2199.01(A), 32-2199.01(D), 32-2199.02, and 41-1092 et seq. OAH has the authority to hear and decide the contested case at bar. OAH has the authority to interpret the contract between the parties.
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated section 5 of the Association’s CC&Rs, section 4.0 of the Association’s Agricultural Design Guidelines, Ariz. Rev. Stat. § 33-1804(A), (D), and (E), and Ariz. Rev. Stat. § 33-1805.
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
In Arizona, when construing statutes, we look first to a statute's language as the best and most reliable index of its meaning. If the statute's language is clear and unambiguous, we give effect to that language and apply it without using other means of statutory construction, unless applying the literal language would lead to an absurd result. Words should be given “their natural, obvious, and ordinary meaning."
Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona; see also State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").
When the legislature uses a word or words in one section of a statute, but not another, the tribunal may not read those words into the section where the legislature did not include them. Unless defined by the legislature, words in statutes are given their ordinary meanings.
Each word, phrase, clause, and sentence of a statute or rule must be given meaning so that no part will be void, inert, redundant, or trivial.
Ariz. Rev. Stat § 10-3821 provides, in pertinent part, that “[A]ction required or permitted to be taken at a directors' meeting may be taken without a meeting if the action is taken by all of the directors. The action must be evidenced by one or more written consents describing the action taken, signed by each director and included in the minutes filed with the corporate records reflecting the action taken.”
Ariz. Rev. Stat. § 33-1804 provides, in pertinent parts:
A. Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members' association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association ... Any portion of a meeting may be closed only if that closed portion of the meeting is limited to consideration of one or more of the following:
1. Legal advice from an attorney for the board or the association. On final resolution of any matter for which the board received legal advice or that concerned pending or contemplated litigation, the board may disclose information about that matter in an open meeting except for matters that are required to remain confidential by the terms of a settlement agreement or judgment.
2. Pending or contemplated litigation.
3. Personal, health or financial information about an individual member of the association, an individual employee of the association or an individual employee of a contractor for the association, including records of the association directly related to the personal, health or financial information about an individual member of the association, an individual employee of the association or an individual employee of a contractor for the association.
4. Matters relating to the job performance of, compensation of, health records of or specific complaints against an individual employee of the association or an individual employee of a contractor of the association who works under the direction of the association.
5. Discussion of a member's appeal of any violation cited or penalty imposed by the association except on request of the affected member that the meeting be held in an open session.
* * *
D. Notwithstanding any provision in the declaration, bylaws or other community documents, for meetings of the board of directors that are held after the termination of declarant control of the association, notice to members of meetings of the board of directors shall be given at least forty-eight hours in advance of the meeting by newsletter, conspicuous posting or any other reasonable means as determined by the board of directors. Notice to members of meetings of the board of directors is not required if emergency circumstances require action by the board before notice can be given. The failure of any member to receive actual notice of a meeting of the board of directors does not affect the validity of any action taken at that meeting.
E. Notwithstanding any provision in the declaration, bylaws or other community documents, for meetings of the board of directors that are held after the termination of declarant control of the association, all of the following apply:
* * *
2. An emergency meeting of the board of directors may be called to discuss business or take action that cannot be delayed for the forty-eight hours required for notice. At any emergency meeting called by the board of directors, the board of directors may act only on emergency matters. The minutes of the emergency meeting shall state the reason necessitating the emergency meeting. The minutes of the emergency meeting shall be read and approved at the next regularly scheduled meeting of the board of directors.
* * *
4. Any quorum of the board of directors that meets informally to discuss association business shall comply with the open meeting and notice provisions of this section without regard to whether the board votes or takes any action on any matter at that informal meeting.
(Emphasis added.)
Ariz. Rev. Stat. § 33-1805 provides, in relevant part, as follows:
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 or any person designated by the member in writing as the member's representative. The association shall not charge a member or any person designated by the member in writing for making material available for review. The association shall have ten business days to fulfill a request for examination. On request for purchase of copies of records by any member or any person designated by the member in writing as the member's representative, the association shall have ten business days to provide copies of the requested records. An association may charge a fee for making copies of not more than fifteen cents per page.
(Emphasis added.)
Here, the material facts are clear.
Based upon a review of the credible and relevant evidence in the record, Petitioners did no sustain their burden of proof regarding issues 1 through 3. Petitioners sustained their burden of proof as to issue 4.
While it is clear that the construction on Lot 7 is not per plans approved by the ARC on January 03, 2018, it is also clear that the no additional plans were provided for the ARC’s consideration afterward. The ARC cannot approve or deny proposed plans unless they are submitted for review. Moreover, the record reflects that the build does comply with the local government’s building authority. No violation of CC&Rs Section 5 has been established.
It is also clear that Lot 7 was granted a construction compliance deposit waiver. What is not clear is why the Association does not have a documented record to explain the details regarding how or when the waiver was issued. Because that is not a noticed issue, however, the inquiry is moot. No violation of Community Agricultural Design Guidelines Section 4.0 has been established.
It is also clear that on April 18, 2020, Petitioner asked to meet with the Board to discuss an urgent matter, and the Board obliged by scheduling a meeting for the next morning on April 19, 2020. Here, the Board’s failure to notice the meeting is excused as an exception. Moreover, the record reflects that Petitioner’s assertion that the Board removed him from the ARC is incorrect. The Board only removed Petitioner from all ARC related matters concerning Lot 7. No violation of Ariz. Rev. Stat. § 33-1804 has been established.
It is also clear that on June 04, 2020, Petitioner submitted a records request to Respondent that sought to review all of the Association’s records, including financials, and also asked for copies of all documents that fell into 17 enumerated categories. Petitioner specifically demanded that his requests be fulfilled within 10-days. The record reflects that Respondent had until June 18, 2020, to comply with both of Petitioner’s requests. The record also reflects that documents were made available to Petitioner on June 16, 2020, and copies of documents were provided to Petitioner on June 24, 2020. Notably, the documents provided to Petitioner on June 24, 2020, did not include email attachments referenced in the documentation. A violation of Ariz. Rev. Stat. § 33-1805 has been established.
Respondent’s argument that Petitioner’s June 16, 2020, clarification regarding his document his request effectively reset the statutory deadline is rejected. The statute does not quantify how many records or what size of record(s) may be requested. While Petitioner’s request may be rightly perceived as vague and/or over-encompassed the crux of discoverable information in possession of Respondent, it was still up to the Association to timely clarify and provide Petitioner with the documents he requested, or obtain an extension.
Therefore, the undersigned Administrative Law Judge concludes that because Petitioners failed to sustain their burden of proof that the Respondent violated section 5 of the Association’s CC&Rs, section 4.0 of the Association’s Agricultural Design Guidelines, and Ariz. Rev. Stat. § 33-1804(A), (D), and (E), their petition must be denied in part. Because Petitioners sustained their burden of proof that Respondent violated Ariz. Rev. Stat. § 33-1805, their petition must be granted in part.
ORDER
Based on the foregoing,
IT IS ORDERED that Petitioners’ petition regarding Issue 4 be granted, and Petitioners’ petition regarding Issues 1-3 be denied.
IT IS FURTHER ORDERED that Respondent reimburse 1⁄4 of Petitioners’ filing fee (e.g. $500.00) in certified funds.
IT IS FURTHER ORDERED that Respondent shall henceforth comply with Ariz. Rev. Stat. § 33-1805.
IT IS FURTHER ORDERED that Respondent provide Petitioners with the aforementioned missing email attachments related to Petitioner’s June 04, 2020, records request within 10-business days of the effective date of the Final Order in this matter.
In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of that certification.
NOTICE
Pursuant to Ariz. Rev. Stat. §32-2199.02(B), this Order is binding on the parties unless a rehearing is granted pursuant to Ariz. Rev. Stat. § 32-2199.04. Pursuant to Ariz. Rev. Stat. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Arizona Department of Real Estate within 30 days of the service of this Order upon the parties.
Done this day, March 22, 2021.
Office of Administrative Hearings
/s/ Jenna Clark
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile March 22, 2021 to:
Judy Lowe, Commissioner
Arizona Department of Real Estate
100 N. 15th Avenue, Suite 201
Phoenix, Arizona 85007
[email redacted]
Cynthia F. Burnes, Esq., Counsel for Petitioners
6657 Williams Road,
Cross Plains, TN 37049
[email redacted]
[email redacted]
Saguaro Crest Homeowners’ Association, Inc., Respondent
Law Offices of Farley, Choate & Wood, Counsel for Respondent
c/o John T. Crotty, Esq. & Kelsey P. Dressen, Esq.
23800 Farmers Way
Phoenix, AZ 85085
[email redacted]
By