Clifford (Norm) Burnes, Petitioner, vs. Saguaro Crest Homeowners Association, Inc., Respondent. - 21

Описание: This is a summary of the administrative law case, Clifford (Norm) Burnes v. Saguaro Crest Homeowners Association, Inc. (No. 21F-H2121051-REL-RHG). The inclusion of "-RHG" in the case number confirms that this summary covers both the original decision and the subsequent rehearing.

Key Facts and Procedural History:

The case originated from Petitioner Clifford (Norm) Burnes’s allegation that the Saguaro Crest Homeowners Association, Inc. (HOA) violated Arizona’s Open Meeting Law (ARIZ. REV. STAT. section 33-1803/33-1804) on May 3, 2020. The specific alleged violation was that the Board of Directors took two actions—regarding a construction bond waiver and house placement on Lot 7—by obtaining unanimous written consent rather than holding an open meeting where members could attend and speak. The Respondent HOA acknowledged taking the actions via consent, asserting that this process, permitted by its bylaws and ARIZ. REV. STAT. section 10-3821, meant no "meeting" actually occurred, thus rendering the open meeting law inapplicable.

Original Decision (July 28, 2021):

Following the hearing on July 16, 2021, the Administrative Law Judge (ALJ) dismissed Burnes’s petition. The original conclusion was that Burnes had failed to prove a violation of the open meeting law (Section 33-1803) because the HOA took action without a meeting as permitted by Section 10-3821. Respondent was deemed the prevailing party.

Rehearing Proceedings and Key Legal Issues:

Petitioner Burnes requested a rehearing, arguing that the original decision’s findings were contrary to law. The rehearing was conducted based on the existing record, as only legal issues were raised.

The core legal arguments addressed during the rehearing centered on the interaction and supremacy of two Arizona statutes:
ARIZ. REV. STAT. section 33-1804 (specific to planned community HOA meetings and favoring open proceedings).
ARIZ. REV. STAT. section 10-3821 (general corporate law allowing directors to take action without a meeting via unanimous written consent).

Burnes argued that 33-1804, being the statute specific to planned communities, should control over the general provisions of 10-3821, particularly since the policy of the state favors open meetings. Burnes also argued that the ALJ lacked jurisdiction to consider 10-3821, which is outside the specific title governing planned communities.

Final Decision on Rehearing (January 3, 2022):

The ALJ upheld the original decision, dismissing the petition.

The final legal conclusion was that there was no conflict between the two statutes. Section 10-3821 permits an HOA Board to take action without a meeting if done by unanimous written consent, provided the bylaws allow it, which Respondent’s bylaws did. Conversely, Section 33-1804 governs the requirements (such as member attendance and speaking rights) if a meeting is actually held. Since Burnes did not prove that a meeting took place on May 3, 2020, but rather the action was taken through the legal mechanism of written consent, the HOA did not violate the open meeting law.

The ALJ also confirmed that jurisdiction was proper because the complaint alleged a violation of 33-1804, and the Respondent was permitted to raise defenses, such as 10-3821, even if they originated outside Title 33, Chapter 16.

Outcome: Petitioner Clifford (Norm) Burnes’s petition was dismissed, and Respondent Saguaro Crest Homeowners Association, Inc. was deemed the prevailing party. The Rehearing Order is binding on the parties.

Case Details:
Case ID: 21F-H2121051-REL-RHG
Docket: 21F-H2121051-REL-RHG

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