OAH-08-005: record access and personal info

In this complaint, the homeowners sought the name of the HOA board member who was guilty of a violation of the HOA rules, but was denied under ARS 33-1805(B)(4), “personal information”.

The ALJ ruled in favor of the homeowner:

13.  The identity of a lot owner within a homeowner’s association is public information that is available through various public entities.  There is no basis in law for concluding that a violation of Association’s governing documents is confidential information because it is personal.  By analogy, civil and criminal cases involving alleged violations of law, including administrative proceedings, unless specifically identified as confidential by statute, are public proceedings. 

 14. The Administrative Law Judge concludes that certain information such as when a member will be away from his home, social security numbers, birth dates, and sensitive information such that a reasonable person would expect such information to remain confidential would fall within the classification of personal records that would not be subject to disclosure.   Consequently, the Administrative Law Judge finds that an association member should be able to inspect homeowner’s association documents reflecting the business of the association, including citations or notices of violations, which are not of such a personal nature so as to remain confidential. 

OAH-08-004: invalid appointment of directors

HOA, with Carpenter law firm, stipulated to violation as filed by homeowner.  The violation was an appointment of direcors not permitted under CC&Rs.  Yet, HOA refused to pay homeowner his $550. By law, the homeowner gets the money.

How much did it cost the HOA for these attoneys?  Why did the HOA continue to the OAH?  According to the HOA, it’s not a contested case, since they conceded.  So why should HOA pay the fee?  ALJ said the admission by HOA occurred after the petition was filed, so, by law, the fee is due.

The new judge, Lewis Kowall, appears to be a rather straight-forward judge,  keeping the hearing an orderly process.  No “excess”, non-related documents and evidence, witnesses, or non-related testimony. Good idea! Stick to the issues.  Quick, short decision. 

In the past, too many hearings were “let them get it of their chest” sessions with evidence and testimony unrelated to the complaint being allowed.  Petitioners must stay focused and stick to the narrow issue stated in their complaint.  If it’s about an invalid election, do not talk about garbage can violations, or open meeting violations, etc.

The judge did stiplulate a time frame for paying the $550 fee — 30 days.

ALJ judge, nor any judge, can issues orders for potential violations not yet occurring.

OAH-023: the effect of a reneged settlement

Please see earlier posts on OAH-023 for background information.  At this point, the status of the settlement agreement as a result of the HOA’s refusal to abide by its terms remains unclear. 

It appears that the agreement, prepared and initiated by the HOA CAI member attorney, Caroline Goldschmidt, could not be complied with since its conditions would violate local ordinances. 

A threat to re-open the case,  by the HOA attorney,  to force the homeowner into complying with the HOAs’ alleged violation did not materialize, and the homeowner’s attempt to do so resulted in a statement by the ALJ that it was out of his hands and no longer an OAH petition, by joint agreement of the parties.

The OAH case cannot be reopened since the settlement agreement (stipulation) included a provision to dismiss the OAH case, which the ALJ was all too willing to do. 

The Nolo self-help publication, Everybody’s Guide to Small Claims Court,  suggests that any settlement contain a provision that it be entered as part of the judge’s order decision. In this way, any failure to comply by any party to can be brought back into the court/hearing.

So, if the HOA “gave up” and is doing nothing, the homeowner need not do anything.  The issue can be revisited if the HOA starts to fine the homeowner for violations, which would force the homeowner into re-opening the case.

Case No.: 07F-H067034-BFS

Complaint:                    landscaping, interpreting and variances from the guidelines;

  Source of Law:             CC&Rs

Discussion:                   On September 13, 2006, Petitioner wrote a letter to the Committee requesting a formal appeal of its decision and explaining why Petitioner felt that the Committee should reconsider the request to allow artificial turf.  Exhibit P3.  In addition to environmental and health concerns associated with natural turf, Petitioner indicated his belief that a precedent had been set to allow artificial turf because Respondent had previously allowed artificial turf to be substituted for natural turf at another residence within the planned community.

At the hearing on this Petition, Respondent acknowledged that there was one homeowner in the community that had been allowed to install artificial turf in her front yard due to health reasons.  That exception, however, was granted by the previous Board of Directors and was believed to have been a response to an Americans with Disabilities Act (ADA) claim presented to that Board by the homeowner.

The authority for the Committee to exercise such broad discretion in approving or disapproving landscape features is found in Article VII, Section 7.2 of the Declaration . . . .

The Committee did not approve Petitioner’s request to use artificial turf.  Clearly, the Declaration gives the Committee broad discretion to deny such a request.  The only limitation on the Committee’s exercise of that broad discretion is found in the sentence “Approval shall not be unreasonably withheld.”

Finally, the fact that there had been a variance from a strict application of the Guidelines in the past does not create a legally sufficient basis to justify Petitioner’s position that the Declaration and Guidelines can no longer be used to prohibit future use of artificial turf. 

A variance granted by the Board to a single homeowner does not meet the “frequent violations” standard cited by the court in Burke, supra.  Consequently, that previous, lone variance does not preclude the Committee from denying Petitioner’s request.

  Holding:                        For all the reasons stated above, the Petition is denied.

Comments:                   none.

OAH: 07F-H067029-BFS

Complaint:                    the HOA board, upon advice of attorney, interpreted CC&Rs with an uncommon meaning;

  Source of Law:             CC&Rs; case history.

 Discussion:                   Following the discussion in executive session, the Board, upon recommendation of its attorneys, [emphasis added] passed a Resolution interpreting Section 11.02 to mean that, rather than requiring an affirmative vote of at least 80% of the entire membership of the Association to amend the Declaration, only an affirmative vote of at least 80% of the members voting, either in person or by absentee ballot, at a meeting to amend the Declaration would be required.  

Although testimony at the hearing made for a compelling argument that homeowner associations should be wary of making the ability to amend their governing documents too strenuous, it does not obviate the fact that the existing Declaration represents a contract between the Association and its 1,322 members – a contract upon which each of those individual owners had a right to rely.  Furthermore, the Board’s “interpretation” of Section 11.02 had the effect of allowing as few as 106 members of the association to make significant changes to the contract governing all 1,322 of its members.  That was a dramatic change from the Board’s belief, prior to the passage of the Resolution, that an affirmative vote of at least 1,058 members of the Association would have been necessary to amend the contract which governed all the Association’s members.                                    

Article 11, Section 11.02 of the Declaration was not ambiguous on its face.  Its meaning was clear, even to the Board prior to October 16, 2006.  It was not a proper subject for interpretation under Article 14, Section 14.01, and the Resolution changing the interpretation of Section 11.02 was an invalid exercise of the Board’s authority under the Declaration.  

The pertinent portion of Section 11.02 provides:…

the Declaration may be amended by the affirmative vote of owners holding at least eighty percent (80%) of the total voting power in the Association at a meeting duly called pursuant to the Articles and Bylaws for the adoption of the amendment.                                               

Petitioner argued that the meaning of Section 11.02 is clear.  Respondent argued that Section 11.02 is ambiguous because inclusion of the phrase “at a meeting” suggests that only 80% of the total voting power represented at that meeting would be required to amend a provision of the Declaration.  In support of that position, Respondent argued that “The ‘total voting power at a meeting’ is quite different from ‘total voting power.’”   

Holding:                        IT IS ORDERED vacating the Board’s Resolution of October 16, 2006, by which the Board interpreted the meaning of Article 11, Section 11.02 of the Declaration.                                   

IT IS FURTHER ORDERED vacating any amendments to the Declaration, passed after the Board’s Resolution of October 16, 2006, and which were based upon the affirmative votes cast by 80% of the members, either in person or by absentee ballot at a meeting called for the purpose of amending the Declaration.                                   

IT IS FURTHER ORDERED that Respondent shall reimburse the filing fee paid by Petitioner in the amount of $2,000.00.   

Comments:                   This is an important case reflecting 1) HOA attorney “collusion” with the HOA board, and 2) the meaning of contracts and everyday understanding of contractual terms.  I say “collusion” because the attorneys fully know the law and how the courts interpret the contractual meanings of the terms therein, yet, regardless of the above, they appear to assist the HOA in its aims and goals.

                                  

The initial HOA attorney, Ekmark Law firm, prematurely filed a motion to dismiss forgetting to count the 5-day mailing allowance that is standard for court filing – 5 days are tacked on to specified 5 day response time to allow for delivery of mail.  Did these learned, CAI lobbyist attorneys forget the law?

 

The new law firm for the  HOA  was Carpenter, Hazelwood.  Carpenter is, and has been, the other long-time CAI lobbyist in Arizona.