Coon, Horace E. vs. Indian Hills Airpark Association

Posted on November 17, 2008 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	08F-H089002-BFS
Agency	DFBLS
Tribunal	OAH
Decision Date	2008-11-17
Administrative Law Judge	Brian Brendan Tully
Outcome	no
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Horace E. Coon	Counsel	—
Respondent	Indian Hills Airpark Association	Counsel	Jonathan Olcott

Alleged Violations

A.R.S. § 33-1805

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the Respondent Association complied with records request statutes by providing the documents in an electronic format.

Why this result: The ALJ determined that providing records on a computer disk satisfied the statutory obligation under A.R.S. § 33-1805 and A.R.S. § 44-7007. The Petitioner's insistence on paper copies was not legally supported.

Key Issues & Findings

Failure to provide requested financial/accounting records

Petitioner requested records on May 29, 2008. Respondent provided records on a computer disk on June 12, 2008. Petitioner was initially unable to access the disk due to a password error, which Respondent corrected by issuing a new disk. Petitioner contended he was entitled to paper copies. The ALJ ruled that electronic delivery satisfied the statutory requirements.

Orders: The Petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. § 33-1805
A.R.S. § 44-7007

Decision Documents

08F-H089002-BFS Decision – 202581.pdf

Uploaded 2026-01-25T15:23:40 (92.8 KB)

Briefing Doc – 08F-H089002-BFS

Briefing on Administrative Law Judge Decision: Coon vs. Indian Hills Airpark Association

Executive Summary

This briefing summarizes the final agency action and Administrative Law Judge (ALJ) decision regarding a dispute between Horace E. Coon (Petitioner) and the Indian Hills Airpark Association (Respondent). The central conflict involved the Petitioner’s allegation that the Respondent failed to provide requested financial and accounting records in violation of state statutes and association bylaws.

The Administrative Law Judge, Brian Brendan Tully, ruled in favor of the Respondent, finding that the Indian Hills Airpark Association complied with its legal obligations by providing the requested documents in an electronic format. The decision establishes that under Arizona law, electronic records are sufficient to satisfy records requests for planned communities, and associations are not required to provide paper copies if electronic versions are available and accessible. The Petitioner’s complaint was dismissed in its entirety.

Procedural Background

The case was adjudicated by the Arizona Office of Administrative Hearings following a petition filed with the Arizona Department of Fire, Building and Life Safety.

• Case Number: 08F-H089002-BFS

• Petitioner: Horace E. Coon

• Respondent: Indian Hills Airpark Association

• Hearing Date: November 4, 2008

• Decision Date: November 17, 2008

• Jurisdiction: Under A.R.S. § 41-2198, the Office of Administrative Hearings has the authority to adjudicate complaints regarding Title 33, Chapter 16 of the Arizona Revised Statutes and planned community documents.

Core Allegations and Disputes

The Petitioner, a member of the Respondent association, filed a single-count petition on July 7, 2008. The complaint alleged that on or about June 12, 2008, the Respondent committed the following violations:

1. Failure to Provide Records: The Petitioner claimed the Respondent failed to provide requested financial and accounting records.

2. Lack of Communication: The Petitioner alleged the Respondent ignored repeated requests for association documents.

3. Statutory and Bylaw Violations: The Petitioner cited violations of A.R.S. § 33-1805 and Indian Hills Airpark Association By-laws, Article IX, Section 2.

Findings of Fact

The ALJ identified several key facts regarding the association’s records management and its response to the Petitioner’s request:

Event/Detail

Description

Request Date

May 29, 2008: Petitioner submitted a written request for records.

Record Maintenance

Respondent maintains records electronically on a treasurer’s laptop, with backups located in the association’s office.

Initial Delivery

June 12, 2008: Treasurer David Paul Miller provided the requested documents on a computer disk.

Access Issues

The Petitioner could not open the initial disk because the treasurer inadvertently protected it with a personal password.

Resolution

Upon notification of the issue, the treasurer created a new disk with a generic password, which the Petitioner was able to access.

Format Dispute

The Petitioner contended he was entitled to paper copies rather than electronic files.

Conclusions of Law

The ALJ’s decision rested on several critical legal interpretations of Arizona Revised Statutes:

• Burden of Proof: The Petitioner bore the burden of proof by a preponderance of the evidence (A.A.C. R2-19-119).

• Sufficiency of Electronic Records: The ALJ found that the Respondent complied with A.R.S. § 33-1805. Crucially, the decision cited A.R.S. § 44-7007(A) and (C), noting that electronic records supplied by the Respondent are legally compliant.

• Paper vs. Electronic Format: The ALJ explicitly ruled that the Petitioner’s claim for paper copies was not supported by statute. The Respondent’s decision to furnish documents in an electronic format was deemed “appropriate.”

• Attorney’s Fees and Costs:

◦ The Petitioner was not entitled to a filing fee reimbursement because he was not the prevailing party.

◦ The Respondent’s claim for attorney’s fees was denied, as an administrative proceeding is not considered an “action” for which such fees can be awarded under Semple v. Tri-City Drywall, Inc.

Final Order

The Petition was dismissed. Per A.R.S. § 41-2198.02(B), this decision is the final administrative decision and is not subject to a request for rehearing. The order is enforceable through contempt of court proceedings in the Superior Court.

Study Guide – 08F-H089002-BFS

Study Guide: Horace E. Coon v. Indian Hills Airpark Association

This study guide provides a comprehensive review of the administrative hearing between Horace E. Coon and the Indian Hills Airpark Association. It examines the legal framework governing Arizona homeowner associations, the responsibilities of administrative agencies, and the specific findings regarding document disclosure in planned communities.

Part I: Short-Answer Quiz

Instructions: Answer the following questions using 2–3 sentences based on the facts and legal conclusions presented in the source context.

1. What was the specific allegation made by Horace E. Coon against the Indian Hills Airpark Association?

2. Under what statutory authority does the Arizona Department of Fire, Building and Life Safety receive petitions for HOA disputes?

3. Describe the initial technical issue the Petitioner encountered when receiving the requested records.

4. How did the Respondent’s treasurer, David Paul Miller, rectify the password issue on the data disk?

5. What was the Petitioner’s primary argument regarding the format of the documents provided by the Association?

6. Who holds the burden of proof in this administrative hearing, and what is the required standard?

7. According to the ALJ’s decision, which statutes justify the provision of records in an electronic format?

8. Why was the Petitioner denied the reimbursement of his filing fee?

9. Explain why the Respondent’s claim for attorney’s fees was denied by the ALJ.

10. What is the finality and enforcement status of the Administrative Law Judge’s decision in this case?

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Part II: Answer Key

1. Question: What was the specific allegation made by Horace E. Coon against the Indian Hills Airpark Association?

◦ Answer: The Petitioner alleged that the Respondent failed to provide requested financial and accounting records and ignored repeated requests for association documents. This was claimed to be a violation of A.R.S. § 33-1805 and Article IX, Section 2 of the association’s by-laws.

2. Question: Under what statutory authority does the Arizona Department of Fire, Building and Life Safety receive petitions for HOA disputes?

◦ Answer: Pursuant to A.R.S. § 41-2198.01(B), the Department is authorized to receive petitions regarding disputes between homeowner associations and their members. These petitions are then forwarded to the Office of Administrative Hearings for a formal hearing.

3. Question: Describe the initial technical issue the Petitioner encountered when receiving the requested records.

◦ Answer: After making a written request, the Petitioner received a computer disk from the Respondent’s treasurer on June 12, 2008. However, the Petitioner was unable to open the disk because the treasurer had inadvertently protected it with a personal password.

4. Question: How did the Respondent’s treasurer, David Paul Miller, rectify the password issue on the data disk?

◦ Answer: Rather than disclosing his personal password, Mr. Miller created a new disk for the Petitioner. This second disk utilized a generic password, which allowed the Petitioner to access the association records.

5. Question: What was the Petitioner’s primary argument regarding the format of the documents provided by the Association?

◦ Answer: The Petitioner contended that he was legally entitled to receive paper copies of the requested association documents. He argued that the provision of records in an electronic format was insufficient and not in compliance with his request.

6. Question: Who holds the burden of proof in this administrative hearing, and what is the required standard?

◦ Answer: Pursuant to A.A.C. R2-19-119(B), the Petitioner carries the burden of proof in the matter. The legal standard required to meet this burden is the “preponderance of the evidence.”

7. Question: According to the ALJ’s decision, which statutes justify the provision of records in an electronic format?

◦ Answer: The ALJ cited A.R.S. § 44-7007(A) and (C) to establish that electronic records are legally valid. The decision concluded that providing electronic copies satisfied the requirements of the planned community records statute, A.R.S. § 33-1805.

8. Question: Why was the Petitioner denied the reimbursement of his filing fee?

◦ Answer: Under A.R.S. § 41-2198.02(B), a party is only entitled to the payment of their filing fee if they are the prevailing party. Because the Petitioner’s claims were dismissed, he did not prevail and therefore had to bear the cost of the fee.

9. Question: Explain why the Respondent’s claim for attorney’s fees was denied by the ALJ.

◦ Answer: The ALJ ruled that an administrative proceeding does not constitute an “action” for which attorney’s fees can be legally awarded. This conclusion was supported by the legal precedent set in Semple v. Tri-City Drywall, Inc.

10. Question: What is the finality and enforcement status of the Administrative Law Judge’s decision in this case?

◦ Answer: This decision is the final administrative action and is not subject to a request for rehearing. However, the Order is enforceable through contempt of court proceedings in the Superior Court.

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Part III: Essay Questions

Instructions: Use the provided case details to develop comprehensive responses to the following prompts.

1. The Role of Electronic Records in Modern Governance: Analyze how the application of A.R.S. § 44-7007 impacts the traditional expectations of document disclosure in planned communities. Discuss whether electronic delivery fulfills the intent of transparency laws compared to physical paper copies.

2. Administrative vs. Judicial Proceedings: Based on the denial of attorney’s fees in this case, evaluate the legal distinctions between an “administrative proceeding” and a standard “action.” How does this distinction affect the financial risks and strategies for parties involved in HOA disputes?

3. Evaluating the Burden of Proof: Discuss the significance of the “preponderance of evidence” standard in the context of this case. Why did the Petitioner fail to meet this burden despite the Association’s initial technical errors with the password-protected disk?

4. Due Process in HOA Disputes: Outline the procedural journey of a petition from the Arizona Department of Fire, Building and Life Safety to the Office of Administrative Hearings. Explain how this structure is intended to provide an independent forum for members and associations.

5. Statutory Interpretation of A.R.S. § 33-1805: Examine how the Administrative Law Judge balanced the requirements of planned community documents (By-laws) with state statutes. In what ways do state laws override or clarify the specific record-keeping obligations of an association?

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Part IV: Glossary of Key Terms

Definition

A.R.S. § 33-1805

The Arizona Revised Statute governing the maintenance and availability of records for planned communities.

A.R.S. § 41-2198

The statute granting the Office of Administrative Hearings the authority to adjudicate complaints regarding planned communities.

Administrative Law Judge (ALJ)

An official who presides over federal or state administrative proceedings, making findings of fact and conclusions of law.

Burden of Proof

The obligation of a party in a trial or hearing to produce the evidence that will prove the claims they have made against another party.

Contempt of Court

A legal mechanism used to enforce a court or administrative order; in this case, the Superior Court may use these proceedings to ensure the ALJ’s order is followed.

Final Agency Action

A definitive decision by an agency that is not subject to further internal review or rehearing, often labeled “ALJFIN” in this context.

Petitioner

The party who initiates a lawsuit or petition; in this case, Horace E. Coon.

Planned Community

A real estate development which includes shared property and is governed by an association of owners, such as the Indian Hills Airpark Association.

Preponderance of the Evidence

The standard of proof in most civil cases, meaning that the claim is more likely to be true than not true.

Respondent

The party against whom a petition is filed and who must respond to the allegations; in this case, the Indian Hills Airpark Association.

Blog Post – 08F-H089002-BFS

Why Your HOA Doesn’t Owe You a Paper Trail: Lessons from the Digital Front Lines

1. Introduction: The HOA Transparency Trap

The relationship between homeowners and their associations often hinges on a fundamental friction point: access to information. When a member requests financial or accounting records, a conflict frequently arises regarding exactly how those records must be delivered. Does a member’s “right to records” legally equate to a “right to paper”? A 2008 legal dispute, Coon vs. Indian Hills Airpark Association, provides a definitive answer for the digital age, clarifying that associations have broad discretion in how they fulfill their transparency obligations.

2. The Digital Default: Why Bytes Equal Paper

In the Coon case, the core ruling centered on the format of the records provided. The Administrative Law Judge determined that furnishing documentation on a computer disk is legally appropriate and fully satisfies the requirements of A.R.S. § 33-1805.

This decision is built upon a “legal bridge” between property law and electronic record statutes. While A.R.S. § 33-1805 governs the inspection of HOA records, A.R.S. § 44-7007(A) and (C) establish that electronic records are legally sufficient and carry the same weight as their physical counterparts.

This effectively shifts the burden of technology onto the homeowner. If an association maintains its records electronically, a member cannot claim “I don’t own a computer” as a legal basis to demand paper. The law essentially dictates that if you want to participate in the governance of your community, you must be prepared to engage with the digital medium.

3. The “Personal Password” Pitfall

A unique complication in this case involved the association’s treasurer, David Paul Miller. From a legal tech perspective, the association demonstrated a “best practice” by maintaining digital redundancy: records were kept on Miller’s laptop and backed up to a secondary computer in the association’s office.

However, the “digital front lines” are often messy. When Miller sent a disk to the Petitioner, the member found himself locked out. Miller, who was at his home in Oregon at the time, realized he had inadvertently secured the disk with his own personal password. This incident highlights how HOA business is now geographically untethered, yet still prone to human error.

Refusing to disclose his personal password for security reasons, Miller eventually provided a new disk with a generic password. Even though the Petitioner later claimed he still “cannot access all data,” the court ruled that the association had met its burden. This serves as a vital reminder: an HOA is required to provide access, but it is not legally obligated to serve as the member’s personal IT help desk. As the ruling noted:

4. Statutory Silence: Why You Can’t Dictate the Medium

The Petitioner explicitly contended that he was entitled to paper copies of the requested documents. However, the court was clear: this demand was “not supported by the evidence or applicable statutes.”

This is a crucial takeaway for any HOA member. Homeowners do not have the legal authority to dictate the medium of the data. If the association provides a functional electronic alternative that contains the required information, they have met their statutory obligation.

The law does not require associations to incur the cost or administrative burden of printing hundreds of pages simply to satisfy a member’s preference. Once the disk is delivered, the association’s job is done, regardless of whether the member prefers the feel of physical paper.

5. The High Cost of the “Non-Action”

The financial outcome of the Coon case serves as a warning about the “lose-lose” nature of these disputes. Because the Petitioner did not prevail, his Petition was dismissed, and he was not entitled to recover his filing fee under A.R.S. § 41-2198.02(B).

The HOA, despite winning, also faced a financial hit. The association’s claim for attorney’s fees was denied based on a technical but critical legal nuance. Referencing Semple v. Tri-City Drywall, Inc., the judge explained that administrative proceedings are not considered “actions” in the specific sense that allows for fee recovery under Arizona law.

This creates a harsh reality for both parties: in these administrative hearings, you can win the legal argument and still lose the financial battle.

6. Conclusion: Navigating the Future of HOA Transparency

The shift toward electronic records is an irreversible trend in governance. As associations move away from physical filing cabinets and toward cloud storage and digital ledgers, the “paper trail” is becoming a string of bytes. Homeowners must prepare for a digital-first relationship with their associations, ensuring they have the tools and technical literacy to review electronic files.

As we move toward a fully digital default, we must confront a difficult question: does this shift toward electronic-only records effectively disenfranchise elderly or low-income members who lack the high-speed access or hardware required to exercise their right to transparency?

Case Participants

Petitioner Side

Horace E. Coon (Petitioner)
Appeared personally

Respondent Side

Jonathan Olcott, Esq. (Respondent Attorney)
The Brown Law Group
David Paul Miller (Treasurer)
Indian Hills Airpark Association
Prepared the computer disk containing records

Neutral Parties

Brian Brendan Tully (ALJ)
Office of Administrative Hearings
Robert Barger (Director)
Department of Fire Building and Life Safety
Received copy of order
Debra Blake (Agency Staff)
Department of Fire Building and Life Safety
Received copy of order

Holzman, Andrew -v- Emerald Springs Homeowners Association

Posted on October 28, 2008 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	08F-H089003-BFS
Agency	DFBLS
Tribunal	OAH
Decision Date	2008-10-28
Administrative Law Judge	Lewis D. Kowal
Outcome	no
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Andrew Holzman	Counsel	—
Respondent	Emerald Springs Homeowners Association	Counsel	Jason Smith

Alleged Violations

CC&R Sec. 3.16(1); CC&R Sec. 3.27

Outcome Summary

The ALJ ruled in favor of the Respondent (HOA), finding that the Board acted appropriately in approving a 5-foot pool fence despite CC&R restrictions limiting height to 4 feet. The ALJ concluded that the HOA is required to comply with the County ordinance mandating a minimum 5-foot height for pool fences, which overrides the conflicting CC&R provision.

Why this result: Petitioner failed to prevail because the CC&R provisions sought to be enforced were contrary to a County ordinance requiring higher fences for safety.

Key Issues & Findings

Violation of fence height restrictions regarding neighbor's pool fence

Petitioner alleged the HOA violated CC&Rs by approving a neighbor's plan for a pool fence at least 5 feet in height, whereas the CC&Rs restrict fence height to 4 feet. The HOA argued it must comply with a County ordinance requiring pool fences to be a minimum of 5 feet.

Orders: No action is required of the Association with respect to the Petition.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Decision Documents

08F-H089003-BFS Decision – 201322.pdf

Uploaded 2026-01-25T15:23:42 (95.3 KB)

Briefing Doc – 08F-H089003-BFS

Administrative Law Judge Decision: Holzman v. Emerald Springs Homeowners Association

Executive Summary

The dispute in Andrew Holzman v. Emerald Springs Homeowners Association (No. 08F-H089003-BFS) centers on the conflict between private residential restrictive covenants and municipal safety ordinances. The Petitioner, Andrew Holzman, alleged that the Emerald Springs Homeowners Association (the “Association”) violated its Amended and Restated Declaration of Covenants, Conditions and Restrictions (CC&Rs) by approving a neighbor’s pool fence that exceeded height limitations.

The Administrative Law Judge (ALJ) determined that while the Association’s CC&Rs mandate a maximum fence height of four feet for certain areas, La Paz County ordinance requires pool safety fences to be a minimum of five feet high. The ruling concludes that an association cannot be compelled to enforce CC&Rs that conflict with the law. Consequently, the Association’s approval of the five-foot fence was upheld as a necessary compliance with county safety requirements.

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Case Overview and Parties

Location

Andrew Holzman

Petitioner

Lot 24, Emerald Springs

Emerald Springs HOA

Respondent

Phoenix/La Paz County, Arizona

Waymen & Carolyn Dekens

Involved Third Party

Lot 23, Emerald Springs (Neighbors)

The dispute arose when the owners of Lot 23 proposed extensive landscaping, including a pool with waterfalls and a safety fence. Mr. Holzman, residing on the adjacent Lot 24, challenged the approval on the grounds that the fence would obstruct his view of the Colorado River.

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Alleged Violations of CC&Rs

The Petitioner cited two specific sections of the Association’s CC&Rs as the basis for his complaint:

1. Section 3.16(1): Stipulates that fences and walls starting 130 feet from the front property line and extending toward the river may not exceed four feet in height and must be of an “open type face.”

2. Section 3.27: Mandates that back and front yard fences must not exceed four feet in height (open type), while side yard fences must not exceed six feet (constructed of wood, concrete block, or similar materials).

The core of the Petitioner’s argument was that the Association approved a fence for Lot 23 that reached at least five feet in height, thereby violating the four-foot restriction in Section 3.16(1) and the back yard provisions of Section 3.27.

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Findings of Fact

Board Approval and Meeting Discrepancies

On June 21, 2008, the Association Board met to discuss the proposed pool for Lot 23. The nature of this meeting and the subsequent approval were subjects of significant testimony:

• Petitioner’s View: Mr. Holzman, attending telephonically, contended that the Board approved the construction of the pool and fence despite his concerns about view obstruction.

• Association’s View: The Board President testified that the Board only approved the “concept” of the pool, conditioned on future engineering surveys and landscaping plans. They argued no formal written plans were approved during that session.

• Official Record: Meeting minutes and subsequent emails from the Board Secretary (Judy Jerrels) indicated that plans were indeed “passed around” and “conditionally approved,” with the understanding that revised plans would follow.

The Conflict of Regulations

The ALJ found the following facts critical to the final determination:

• County Requirements: It was undisputed that La Paz County requires pool fences to be a minimum of five feet in height.

• Board Recognition: During the June 21 meeting, the Board acknowledged the County’s five-foot requirement and received a legal opinion stating that CC&Rs do not prohibit pools on community lots.

• ALJ Determination: The ALJ concluded that the Board did approve a plan involving a fence of at least five feet in height to ensure compliance with the County ordinance.

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Legal Analysis and Conclusions of Law

Supremacy of Law over CC&Rs

The primary legal conclusion of the ALJ is that municipal ordinances take precedence over private restrictive covenants when the two are in direct conflict.

• Compliance Necessity: The Association is legally required to comply with County ordinances. It cannot be compelled by its members to enforce CC&R provisions (the four-foot height limit) that would cause a homeowner to violate safety laws (the five-foot pool fence requirement).

• Appropriateness of Action: Because the Board acted to align its approval with legal mandates, its decision was deemed appropriate.

Prevailing Party and Attorney Fees

Despite the ruling in favor of the Association, the Respondent’s request for attorney fees was denied based on the following:

• Statutory Limitations: Under A.R.S. § 12-341.01, attorney fees are awardable in an “action.” However, citing Semple v. Tri-City Drywall, Inc., the ALJ noted that an administrative proceeding does not constitute an “action” for the purposes of this statute.

• Lack of Governing Authority: The Association failed to cite any specific provision in its own governing documents that would allow for the recovery of fees or costs in this type of administrative proceeding.

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Final Order

The Administrative Law Judge ordered that no action is required of the Association regarding Mr. Holzman’s Petition. The decision was finalized on October 28, 2008, upholding the Association’s right to prioritize county safety ordinances over the height restrictions found in the CC&Rs.

Study Guide – 08F-H089003-BFS

Study Guide: Holzman v. Emerald Springs Homeowners Association

This study guide provides a comprehensive review of the administrative law case between Andrew Holzman and the Emerald Springs Homeowners Association. It explores the legal conflict between community-specific Covenants, Conditions, and Restrictions (CC&Rs) and municipal ordinances, specifically regarding property improvements and safety requirements.

Short-Answer Quiz

1. What was the primary legal conflict at the center of this dispute?

2. Identify the specific sections of the Emerald Springs CC&Rs that the Petitioner alleged were being violated.

3. What were the specific height and material requirements for fences as outlined in Section 3.27 of the CC&Rs?

4. Why did Andrew Holzman object to the proposed fence on Lot 23?

5. How did the Board meeting on June 21, 2008, contribute to the dispute?

6. What was the legal justification for the Administrative Law Judge (ALJ) ruling in favor of the Homeowners Association regarding fence height?

7. Describe the conflicting testimony regarding the existence of “plans” for the pool on Lot 23.

8. What role did Judy Jerrels’ emails play in the Board’s defense?

9. On what grounds did the ALJ deny the Respondent’s request for attorney fees?

10. What are the requirements for a party to appeal this final administrative decision?

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Quiz Answer Key

Question

Answer

The conflict involved a discrepancy between the Emerald Springs CC&Rs, which limited certain fences to 4 feet in height, and a La Paz County ordinance, which mandated that pool fences be a minimum of 5 feet in height. The case questioned whether an HOA could be forced to follow its own rules when they contradict local law.

The Petitioner alleged violations of Section 3.16(1), regarding fence heights and types for properties extending toward the river, and Section 3.27, which governs the height and construction materials for back, front, and side yard fences.

Under Section 3.27, back and front yard fences were restricted to a 4-foot maximum height and required an “open type” design. Side yard fences were permitted to be up to 6 feet in height and could be constructed of wood, concrete block, or similar materials.

Holzman, residing on Lot 24, was concerned that a 5-foot fence installed by his neighbors on Lot 23 would obstruct his view of the Colorado River. He also claimed the neighbors had previously agreed to move the pool and eventually remove the fence.

During this meeting, the Board conditionally approved the concept of a pool for Lot 23. While the Petitioner argued this constituted a formal approval of a fence violating CC&Rs, the Board maintained it was a conceptual approval contingent on future engineering surveys and updated landscaping plans.

The ALJ concluded that the Association cannot be compelled to abide by CC&R provisions that are contrary to law. Because the County ordinance required a 5-foot minimum for pool safety, that law superseded the 4-foot restriction in the CC&Rs.

Holzman contended that by conditionally approving “plans,” the Board had authorized specific construction. Conversely, Board President Sherri Mehrver testified that no formal written plans or engineering surveys had been submitted yet, and the “plans” mentioned in minutes referred only to a diagram.

Jerrels’ emails from July 17, 2008, suggested that revised plans were still expected from the owners of Lot 23. This supported the Board’s argument that they had not yet given final approval to specific construction details, such as side yard fencing materials or exact height.

The ALJ ruled that an administrative proceeding is not considered an “action” under A.R.S. § 12-341.01, which is the statute used to award attorney fees. Additionally, the Association failed to provide any provision within its own governing documents that allowed for such an award in this type of proceeding.

A party must commence an action to review the decision by filing a complaint within 35 days of the decision being served. Service is considered complete upon personal delivery or five days after the decision is mailed to the party’s last known address.

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Essay Questions

1. The Supremacy of Law over Private Agreements: Analyze the ALJ’s decision that Emerald Springs could not be compelled to follow CC&Rs that contradict County ordinances. Discuss the implications this has for homeowners associations when drafting and enforcing private community standards.

2. Evidentiary Interpretation of Board Minutes: Evaluate the weight given to the June 21, 2008, Board minutes. How did the phrasing “conditionally approved plans” create ambiguity, and how did the ALJ reconcile this phrasing with the testimony of Ms. Mehrver and the emails of Ms. Jerrels?

3. Property Rights and View Obstruction: Andrew Holzman’s primary grievance was the obstruction of his river view. Discuss the balance between an individual’s aesthetic enjoyment of their property and the legal necessity of safety regulations (like pool fencing) as presented in the case.

4. Administrative vs. Judicial Proceedings: Using the ALJ’s ruling on attorney fees as a baseline, compare the legal nature of an administrative hearing at the Office of Administrative Hearings to a standard civil “action.” Why does the law distinguish between the two regarding the recovery of legal costs?

5. The Role of Conditional Approval in Governance: The Board approved the “concept” of the Dekens’ pool while awaiting further surveys. Discuss the risks and benefits of HOAs granting conditional approvals before receiving finalized engineering and landscaping plans.

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Glossary of Key Terms

• A.R.S. § 12-341.01: A specific Arizona Revised Statute regarding the recovery of attorney fees; the ALJ ruled this did not apply to administrative hearings.

• Administrative Law Judge (ALJ): An official who presides over administrative hearings, such as Lewis D. Kowal in this matter, to adjudicate disputes involving state agency actions or regulated communities.

• CC&Rs (Covenants, Conditions, and Restrictions): The governing documents of a homeowners association that dictate the rules for property use, maintenance, and architectural standards within the community.

• Conditional Approval: A status granted to a project or plan that is accepted in principle but requires further documentation, surveys, or modifications before final authorization.

• Lot 23: The property owned by the Dekens, where the proposed pool and fence were to be installed.

• Lot 24: The property owned by the Petitioner, Andrew Holzman, located adjacent to Lot 23.

• Open Type Face Fencing: A style of fencing required by the Emerald Springs CC&Rs for certain areas to preserve views; contrasted with solid walls or blocks.

• Ordinance: A law or regulation enacted by a municipal body, such as La Paz County, which in this case mandated specific heights for pool safety fences.

• Petitioner: The party who initiates the legal proceeding or appeal; in this case, Andrew Holzman.

• Respondent: The party against whom a legal petition is filed; in this case, the Emerald Springs Homeowners Association.

Blog Post – 08F-H089003-BFS

When Rules Collide: 3 Surprising Lessons from the Emerald Springs HOA Legal Battle

I. Introduction: The Battle for the View

In the world of deed-restricted communities, homeowners often pay a significant premium for aesthetic certainty. Covenants, Conditions, and Restrictions (CC&Rs) are designed to offer a guarantee that a neighbor’s renovation will not infringe upon a skyline or a river view. However, a fundamental tension exists between these private restrictive covenants and the police power of local government.

This conflict reached a boiling point in Holzman v. Emerald Springs Homeowners Association, a dispute that began when a homeowner sought to protect his view of the Colorado River from a neighbor’s proposed pool and safety fence. The case, heard before an Administrative Law Judge (ALJ), provides a sobering look at the hierarchy of legal authority and the procedural traps that can leave an association vulnerable.

II. Takeaway 1: The Supremacy of Municipal Safety Ordinances

The central dispute in Holzman involved a direct contradiction between the Emerald Springs CC&Rs and La Paz County law. Sections 3.16 and 3.27 of the community’s governing documents were explicit: fences located 130 feet from the front property line and extending toward the river were capped at four feet in height. These provisions were intended to maintain a “step-down” effect to preserve the scenic corridor.

However, the owners of Lot 23 proposed a pool, and La Paz County ordinance required all pool enclosures to be a minimum of five feet in height for public safety. The ALJ determined that when a private contract (the CC&Rs) and a government safety ordinance collide, the ordinance prevails.

This creates a profound “Catch-22” for both associations and homeowners. A buyer may invest in a property specifically for its contractually protected views, yet that property right can be effectively extinguished by a change in local safety codes. The HOA, meanwhile, finds itself in the ironic position of being legally compelled to allow—and even facilitate—a violation of its own governing contract.

III. Takeaway 2: The Power of Admissions and Informal Minutes

The Holzman case underscores the danger of informal board governance and the legal weight of internal communications. During the June 21, 2008, Board meeting, the association discussed the pool project on Lot 23. The Petitioner, Andrew Holzman, attended telephonically and was unable to see the visual aids presented.

While the Association later argued that it had only approved a “concept” and that no formal plans were submitted, evidence suggested otherwise. A July 17, 2008, email from the Association’s secretary, Judy Jerrels, proved decisive. In the email, Jerrels admitted that “plans were passed around at the meeting for the attending membership to view.” This admission undermined the Board’s defense and led the ALJ to conclude that a “conditional approval” had indeed occurred.

For HOA boards, the lesson is clear: any recognition of a project in official minutes or officer correspondence can be construed as a formal action. The distinction between a “concept” and a “plan” is often lost if the administrative record shows the Board allowed the project to move forward.

IV. Takeaway 3: Winning the Merits Does Not Guarantee Legal Fees

Perhaps the most frustrating outcome for the Emerald Springs HOA was the financial resolution. Although the Association successfully defended its decision to follow county law, and the ALJ ruled that the Petitioner was not the prevailing party, the HOA was denied the recovery of its attorney fees.

The ALJ cited a critical distinction in Arizona law regarding fee shifting. Under A.R.S. § 12-341.01, fees are generally awardable to the prevailing party in “actions” arising out of contract. However, citing Semple v. Tri-City Drywall, Inc., the ALJ noted that an administrative hearing is not an “action” for the purposes of that statute.

To avoid being left with a significant legal bill even after a victory, associations must ensure their governing documents are specifically tailored for administrative forums. To maximize the chances of fee recovery, associations should prioritize:

• Explicit Provision for Administrative Forums: CC&Rs should explicitly state that the prevailing party is entitled to fees in any “legal proceeding, including administrative hearings.”

• Broad Definition of “Action”: Governing documents should define “action” or “litigation” to encompass Department of Real Estate or other administrative adjudications.

• Specific Statutory Citations: Ensure that any demand for fees references both contract law and the specific language of the association’s bylaws.

V. Conclusion: The Reality of Deed-Restricted Living

The Holzman v. Emerald Springs decision serves as a clinical reminder that HOA governance does not exist in a vacuum. While CC&Rs are binding private contracts that provide a sense of community control, they remain subordinate to the requirements of public safety and local government.

Ultimately, the case highlights the fragility of aesthetic protections when they meet the “police power” of the state. It forces a difficult realization for every resident of a common-interest community: If your community’s safety and your community’s aesthetics are in direct conflict, which one would you expect the law to choose? As the Emerald Springs battle demonstrates, public safety and municipal law will prevail every time.

Case Participants

Petitioner Side

Andrew Holzman (petitioner)
Owner of Lot 24; appeared on his own behalf

Respondent Side

Jason E. Smith (HOA attorney)
Carpenter, Hazlewood, Delgado & Wood, PLC
Represented Emerald Springs Homeowners Association
Sherri Mehrver (witness)
Emerald Springs Homeowners Association
Former Board President; testified at hearing
Judy Jerrels (board member)
Emerald Springs Homeowners Association
Secretary of the Association

Neutral Parties

Lewis D. Kowal (ALJ)
Office of Administrative Hearings
Administrative Law Judge
Waymen Dekens (neighbor)
Owner of Lot 23; neighbor proposing the pool/fence
Carolyn Dekens (neighbor)
Owner of Lot 23; neighbor proposing the pool/fence
Robert Barger (agency official)
Department of Fire Building and Life Safety
Recipient of decision copy
Debra Blake (agency official)
Department of Fire Building and Life Safety
Recipient of decision copy; Attention line

James, Lon vs. Corte Bella Country Club Association

Posted on September 25, 2008 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	08F-H089001-BFS
Agency	DFBLS
Tribunal	OAH
Decision Date	2008-09-25
Administrative Law Judge	Lewis D. Kowal
Outcome	no
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Lon James	Counsel	—
Respondent	Corte Bella Country Club Association	Counsel	Angela Potts

Alleged Violations

Section 3.14
A.R.S. § 33-1804

Outcome Summary

The Petition was dismissed. The claim regarding the Bylaws was precluded by mandatory ADR provisions in the CC&Rs. The claim regarding the open meeting statute was dismissed because an in camera review proved the closed meeting fell within valid statutory exceptions (personnel matters).

Why this result: Mandatory ADR clause in governing documents and statutory exceptions for closed meetings applied.

Key Issues & Findings

Allegation of Violation of Sec 3.14 of Bylaws

Petitioner alleged that the Board held a closed meeting to discuss and vote on a proposal to realign the Board, refusing homeowner permission to attend.

Orders: Dismissed based on requirement of Article XVII of CC&Rs that requires such disputes be resolved by alternative dispute resolution.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

Bylaws Section 3.14
CC&Rs Article XVII

Violation of A.R.S. § 33-1804 (open meeting)

Petitioner alleged the May 5, 2008 closed meeting violated open meeting statutes.

Orders: Dismissed; the meeting fell within statutory exceptions.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. § 33-1804

Decision Documents

08F-H089001-BFS Decision – 199085.pdf

Uploaded 2026-01-25T15:23:36 (96.0 KB)

Briefing Doc – 08F-H089001-BFS

Administrative Law Judge Decision: Lon James v. Corte Bella Country Club Association

Executive Summary

This briefing document summarizes the administrative law decision (Case No. 08F-H089001-BFS) regarding a dispute between Lon James (Petitioner) and the Corte Bella Country Club Association (Respondent). The Petitioner alleged that the Respondent violated community bylaws and Arizona state law by holding a closed Board meeting on May 5, 2008.

The Administrative Law Judge (ALJ), Lewis D. Kowal, dismissed the petition in its entirety. The ruling was based on two primary factors:

1. Jurisdictional Preclusion: Claims regarding Bylaw violations were subject to mandatory Alternative Dispute Resolution (ADR) as per the community’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs).

2. Statutory Compliance: An in camera review of evidence determined that the closed meeting held by the Board fell within the legal exceptions provided by A.R.S. § 33-1804, specifically regarding personnel matters and confidential information.

Case Overview and Procedural History

The Petitioner filed a petition with the Arizona Department of Fire, Building and Life Safety under A.R.S. 41-2198.01 (B). The Petitioner alleged that the Respondent held a closed meeting to vote on board realignment, refusing homeowner participation in violation of Community Bylaws (Section 3.14) and A.R.S. § 33-1804.

Case Detail

Information

Case Number

08F-H089001-BFS

Petitioner

Lon James

Respondent

Corte Bella Country Club Association

Hearing Date

September 16, 2008

Presiding Judge

Lewis D. Kowal

Final Action

Petition Dismissed

Analysis of Legal Issues and Rulings

1. Alleged Violation of Section 3.14 of Community Bylaws

The Petitioner argued that the Respondent failed to adhere to the open meeting requirements established in the community’s own bylaws.

• Respondent’s Defense: The Respondent moved for dismissal of this claim, citing Article XVII of the CC&Rs, which mandates that disputes relating to the interpretation or enforcement of governing documents must be resolved via ADR.

• Petitioner’s Counter-Argument: The Petitioner contended that ADR provisions only applied to the design or construction of property improvements.

• Judicial Conclusion: The ALJ found that the ADR provisions should be read in the “disjunctive.” The provisions apply not only to construction improvements but also to claims arising from the “interpretation, application or enforcement” of the Respondent’s governing documents. Consequently, the claim was precluded from the administrative hearing.

2. Alleged Violation of A.R.S. § 33-1804 (Open Meeting Law)

The core of the dispute involved a meeting held on May 5, 2008, from which homeowners were excluded.

• Legal Exceptions: Under A.R.S. § 33-1804(A), boards may hold closed meetings for specific reasons. The Respondent cited the following exceptions:

◦ A.R.S. § 33-1804(A)(2): Pending or contemplated litigation.

◦ A.R.S. § 33-1804(A)(3): Personal, health, or financial information about an individual member, employee, or contractor.

◦ A.R.S. § 33-1804(A)(4): Matters relating to job performance, compensation, or specific complaints against an individual employee or contractor.

3. Evidentiary Review and Methodology

To determine if the closed meeting was legal without disclosing confidential information to the Petitioner, the ALJ utilized an in camera review process.

• Review of Documents: The Respondent submitted eleven documents under seal. The Respondent argued that presenting this evidence in open court would force the disclosure of information they were legally required to keep confidential.

• Judicial Precedent: The ALJ cited Griffis v. Pinal County and Phoenix Newspapers, Inc. (2006) as guidance for performing an in camera review to balance the principles of public hearings against the necessity of preserving confidentiality.

• Findings: Following the review, the ALJ informed the parties that the meeting was “properly held as a closed meeting” because the purpose fell within at least one of the statutory exceptions.

• Petitioner’s Offer of Proof: The Petitioner was allowed to make an “Offer of Proof” regarding the evidence he would have presented. The ALJ noted that some of the information in the Petitioner’s own offer actually supported the conclusion that the meeting involved a personnel matter, which is a permissible reason for a closed session.

Final Determinations and Financial Rulings

Dismissal of the Petition

The ALJ issued a ruling from the bench dismissing the petition. The Petitioner was not considered the prevailing party and was therefore denied reimbursement for his filing fee.

Request for Attorneys’ Fees

In its response to the petition, the Respondent requested an award for attorneys’ fees and costs under A.R.S. § 12-341.01. The ALJ denied this request based on the following:

• Definition of “Action”: Citing Semple v. Tri-City Drywall, Inc., the ALJ noted that an administrative proceeding is not considered an “action” in the context of A.R.S. § 12-341.01.

• Governing Documents: The Respondent failed to cite any specific provision within its own governing documents that would provide for an award of fees in such a proceeding.

Final Order

The petition was dismissed. Pursuant to A.R.S. § 41-2198.04(A), this order constitutes the final administrative decision. While it is not subject to a request for rehearing, it may be appealed to the Superior Court within thirty-five days of service.

Study Guide – 08F-H089001-BFS

Administrative Law Study Guide: Lon James v. Corte Bella Country Club Association

This study guide provides a comprehensive review of the administrative law proceedings between Petitioner Lon James and Respondent Corte Bella Country Club Association (No. 08F-H089001-BFS). It examines the legal interpretations of association bylaws, open meeting statutes, and the procedural mechanisms used by an Administrative Law Judge (ALJ) to resolve disputes within a country club association.

Section 1: Short-Answer Quiz

Instructions: Answer the following questions in two to three sentences based on the provided source context.

1. What primary allegation did the Petitioner make regarding the board meeting held on May 5, 2008?

2. On what grounds did the Administrative Law Judge preclude the claim regarding the violation of Section 3.14 of the Bylaws?

3. How did the Respondent’s interpretation of Article XVII of the CC&Rs differ from the Petitioner’s interpretation?

4. What was the Respondent’s justification for requesting an “in camera review” of specific documents?

5. Which Arizona Supreme Court case did the ALJ use as guidance for conducting an in camera review, and what was that case about?

6. According to A.R.S. § 33-1804(A), what are the three specific exceptions cited by the Respondent for holding a closed meeting?

7. What is an “Offer of Proof,” and how did the Petitioner’s offer impact the ALJ’s decision?

8. Why did the ALJ determine that the Respondent was not entitled to an award for attorney’s fees?

9. What is the finality status of the Order issued by ALJ Lewis D. Kowal, and is it subject to a rehearing?

10. What are the specific requirements and timelines for a party wishing to appeal this final administrative decision?

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Section 2: Answer Key

1. The Petitioner alleged that the Respondent held a closed Board Meeting to discuss and vote on a proposal to realign the Board. He argued that refusing homeowners permission to attend or participate violated Community Bylaws 3.14 and A.R.S. § 33-1804.

2. The ALJ precluded this claim because Article XVII of the Association’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs) requires such disputes to be resolved by alternative dispute resolution (ADR). This mandatory provision barred the claim from being adjudicated in the current administrative hearing.

3. The Petitioner argued that the ADR provisions in Article XVII only related to the design or construction of property improvements. The Respondent argued the provisions should be read disjunctively, applying to any claims relating to the interpretation, application, or enforcement of the governing documents.

4. The Respondent asserted that the evidence justifying the closed meeting was inextricably intertwined with confidential information that could not be disclosed publicly. They requested an in camera review so the ALJ could verify the meeting’s legality without exposing protected data.

5. The ALJ cited Griffis v. Pinal County and Phoenix Newspapers, Inc. (2006). In that case, the Supreme Court remanded the matter for an in camera review to determine if personal emails on a government system were considered public records.

6. The exceptions included: (2) pending or contemplated litigation; (3) personal, health, or financial information about an individual member, employee, or contractor; and (4) matters relating to job performance, compensation, or specific complaints against an individual employee.

7. An Offer of Proof is a summary of testimonial and documentary evidence a party would have presented; in this case, the Petitioner’s offer actually supported the conclusion that the meeting fell under a personnel matter exception. It did not change the ALJ’s finding that the closed meeting was held in accordance with the law.

8. The ALJ ruled that an administrative proceeding is not an “action” under A.R.S. § 12-341.01, which is necessary for attorney’s fees to be awardable. Furthermore, the Respondent failed to cite any provision in its own governing documents that provided for such an award in this type of proceeding.

9. The Order is the final administrative decision and is not subject to a request for rehearing under A.R.S. § 41-2198.04(A). It is considered enforceable through contempt of court proceedings.

10. A party may appeal by filing a complaint within thirty-five days of the date the decision was served. Service is considered complete upon personal delivery or five days after the final decision is mailed to the party’s last known address.

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Section 3: Essay Questions

Instructions: Use the case details to provide in-depth analysis for the following prompts.

1. Mandatory Alternative Dispute Resolution (ADR): Analyze the significance of the ALJ’s decision to dismiss the Bylaw violation claim based on the CC&Rs. Discuss how the interpretation of “disjunctive” language in governing documents can impact a member’s right to an administrative hearing versus mandatory mediation or arbitration.

2. Transparency vs. Confidentiality: Evaluate the tension between the “open meeting” requirements of A.R.S. § 33-1804 and the exceptions allowed for board meetings. Discuss whether the in camera review process is an effective compromise for protecting individual privacy while ensuring association accountability.

3. The Role of Judicial Precedent in Administrative Law: Examine how the ALJ utilized Griffis v. Pinal County to justify procedural steps in this case. Why is it important for administrative law judges to look to Supreme Court decisions regarding public records when handling private association disputes?

4. Statutory Interpretation of “Action”: Contrast the legal definitions of an “administrative proceeding” and an “action” as they relate to the recovery of attorney’s fees under A.R.S. § 12-341.01. What are the implications for litigants who prevail in one forum versus the other?

5. Burden of Proof and the “Offer of Proof”: Discuss the procedural purpose of an Offer of Proof in a hearing. Analyze the irony in this case where the Petitioner’s own offer of proof reinforced the Respondent’s legal standing regarding the “personnel matter” exception.

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Section 4: Glossary of Key Terms

Definition

A.R.S. § 33-1804

The Arizona Revised Statute governing the requirement for open meetings within certain associations, including specific legal exceptions.

Alternative Dispute Resolution (ADR)

A process, such as mediation or arbitration, required by governing documents to resolve disputes outside of traditional court or administrative hearings.

Declaration of Covenants, Conditions, and Restrictions; the governing documents that outline the rules and regulations of a planned community or association.

In Camera Review

A private review of sensitive or confidential documents by a judge in their chambers (or “in chambers”) to determine their relevance or admissibility without disclosing them to the opposing party or the public.

Offer of Proof

A presentation made to the judge for the record when a party is not permitted to introduce certain evidence or testimony, describing what that evidence would have shown.

Petitioner

The party who initiates a petition or legal claim in an administrative hearing (in this case, Lon James).

Respondent

The party against whom a petition or legal claim is filed (in this case, Corte Bella Country Club Association).

Under Seal

Records or documents that are kept confidential and are not available for public inspection, often used during an in camera review.

Prevailing Party

The party in a legal proceeding that wins the case; here, the ALJ determined the Petitioner was not the prevailing party and thus not entitled to fee reimbursement.

Disjunctive

A grammatical or legal term indicating that items in a list (often separated by “or”) should be considered separately or as alternatives rather than collectively.

Blog Post – 08F-H089001-BFS

Behind Closed Doors: What a Recent Arizona HOA Ruling Reveals About Your Rights as a Homeowner

Most homeowners buy into a community under the comforting illusion that their dues purchase a front-row seat to the governance of their neighborhood. There is a common expectation that transparency is the default setting and that “open meeting” laws provide an unbreakable shield against secret governance.

In the arena of HOA law, however, transparency is often the first casualty of a well-drafted executive session. The case of Lon James vs. Corte Bella Country Club Association serves as a sobering cautionary tale of a “legal lockout.” When James challenged a closed-door meeting held to “realign the board,” he discovered that the legal framework governing HOAs often prioritizes board confidentiality over homeowner participation, leaving residents on the outside looking in.

This ruling highlights four critical takeaways that reveal just how tilted the playing field can be when a homeowner dares to challenge the association’s inner workings.

Takeaway 1: The “Open Meeting” Law Has Serious Loopholes

While A.R.S. § 33-1804 generally mandates that board meetings remain open to all members, the law provides broad exceptions that act as a legal shield for boards. In the Corte Bella case, the board met privately to discuss a proposal to “realign the board.” To a homeowner, a structural change in leadership sounds like a matter of public interest. To the law, however, it is frequently a protected personnel matter.

The ultimate irony in this case? The Petitioner’s own “Offer of Proof”—the evidence he intended to use to win—actually backfired. The Administrative Law Judge (ALJ) noted that James’s own testimony unintentionally supported the HOA’s claim that the meeting was legally closed as a personnel matter. It is a high-value lesson for any litigant: sometimes your own evidence proves the board’s right to exclude you.

Takeaway 2: The Judge Can See Evidence You Can’t (The In Camera Review)

One of the most significant tactical disadvantages a homeowner faces is the “In Camera Review.” To determine if the board’s secrecy was justified, the judge reviewed 11 sealed documents privately. James was never allowed to see the very evidence being used to dismiss his case.

This “secret” review is not an automatic right for associations; it is a hard-fought legal maneuver. In fact, the ALJ initially refused the HOA’s request for the review. It was only after a persuasive oral argument that the judge pivoted, balancing public hearing principles against the board’s need for confidentiality. Using the precedent of Griffis v. Pinal County, the court confirmed that a judge can review documents behind a “black box” to determine if they fall under public record exceptions. For the homeowner, this means fighting an opponent when the most critical evidence is invisible to you.

Takeaway 3: Your Right to Sue May Be Precluded by Your Own CC&Rs

Before you ever get to argue the merits of your case, you must survive the trapdoors buried in your own governing documents. In this case, James’s claim regarding a violation of Section 3.14 of the Bylaws was dismissed before it even reached the hearing stage.

The HOA successfully argued that Article XVII of the CC&Rs mandated Alternative Dispute Resolution (ADR). The judge applied a “disjunctive” reading of the law—meaning that because the document used the word “or,” the ADR requirement wasn’t restricted to hammers-and-nails construction issues. Instead, it applied to any claim relating to the interpretation or application of the governing documents. This is a common “ADR trap”: if your CC&Rs are written this way, your path to a standard administrative hearing is effectively blocked.

Action Item: Review your CC&Rs specifically for “disjunctive” language in your ADR or arbitration clauses. If the clause applies to construction or interpretation, you may be signing away your right to a public day in court.

Takeaway 4: Winning Doesn’t Mean Your Legal Bills Are Paid

In the administrative arena, victory often feels like a hollow financial win. In the Corte Bella ruling, even though the HOA successfully defended its actions and saw the petition dismissed, the judge denied their request for attorney’s fees.

The reasoning is a technicality that every homeowner should memorize: an administrative proceeding is not considered an “action” under Arizona law. Therefore, the statutes that typically allow a winner to recover fees in a contract-related lawsuit simply do not apply. This creates an administrative dead-end where both sides typically bear their own costs regardless of the outcome, making these battles a “lose-lose” for the bank accounts of both the individual and the community at large.

Conclusion: The Price of Participation

The Corte Bella ruling reinforces the substantial power HOA boards wield. By utilizing statutory exceptions, securing private judicial reviews, and leaning on mandatory ADR clauses, boards can effectively shield their most critical decisions from member oversight.

This leaves us with a difficult reality regarding the price of participation. If the most significant board decisions—those involving board realignment, litigation, and personnel—are legally permitted to occur behind closed doors, how can homeowners truly ensure accountability? Understanding these legal boundaries isn’t just about winning a case; it’s about recognizing the steep climb required to see what’s happening behind the curtain.

Case Participants

Petitioner Side

Lon James (Petitioner)
Appeared on his own behalf

Respondent Side

Angela Potts (Respondent Attorney)
Ekmark & Ekmart, LLC
Esq.

Neutral Parties

Lewis D. Kowal (Administrative Law Judge)
Office of Administrative Hearings
Robert Barger (Director)
Department of Fire, Building and Life Safety
Listed on mailing/service list
Debra Blake (Agency Staff)
Department of Fire, Building and Life Safety
Listed on mailing/service list

Bittner, Elmer -v- Greenfield Glen Homeowners Association

Posted on September 1, 2008 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	08F-H088018-BFS
Agency	DFBLS
Tribunal	OAH
Decision Date	2008-09-02
Administrative Law Judge	Brian Brendan Tully
Outcome	yes
Filing Fees Refunded	$550.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Elmer Bittner	Counsel	—
Respondent	Greenfield Glen Homeowners Association	Counsel	Franklyn D. Jeans, Esq. and Nicole S. Cassett, Esq.

Alleged Violations

Declaration Paragraph 32.6

Outcome Summary

The ALJ found that the Association's governing documents did not authorize unequal assessments based on garage size. The Association was ordered to cease the practice and refund the Petitioner's filing fee.

Key Issues & Findings

Unequal Assessments based on garage size

Petitioner challenged the Association's practice of charging higher assessments for units with 2-car garages compared to 1-car garages. The Respondent admitted the governing documents did not support this allocation.

Orders: Respondent shall abide by its governing documents in future assessments of Unit owners irrespective of the size of a Unit owner's garage unless documents are amended.

Filing fee: $550.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

A.R.S. § 41-2198
Declaration Paragraph 32.6

Decision Documents

08F-H088018-BFS Decision – 197550.pdf

Uploaded 2026-01-25T15:23:30 (102.0 KB)

Briefing Doc – 08F-H088018-BFS

Administrative Law Judge Decision: Bittner vs. Greenfield Glen Homeowners Association

Executive Summary

This briefing document summarizes the administrative law judge (ALJ) decision in the matter of Elmer Bittner vs. Greenfield Glen Homeowners Association (Case No. 08F-H088018-BFS). The dispute centered on whether the Greenfield Glen Homeowners Association (Respondent) possessed the legal authority under its governing documents to charge unequal common element dues based on the number of garage spaces in a unit.

The ALJ determined that the Respondent’s governing documents do not authorize tiered assessments based on garage size. Despite the Respondent’s long-standing practice of charging higher rates for two-car garage units, the court found no legal basis for this distinction in the Association’s Declaration or subsequent amendments. Consequently, the Respondent was ordered to cease unequal assessments and reimburse the Petitioner for his filing fees.

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Case Overview and Jurisdiction

Parties Involved

• Petitioner: Elmer Bittner, owner of a residence with a two-car garage within the Greenfield Glen development in Mesa, Arizona.

• Respondent: Greenfield Glen Homeowners Association, an entity whose powers are subject to specific governing documents and Arizona law.

Statutory Authority

The dispute was adjudicated by the Office of Administrative Hearings pursuant to A.R.S. § 41-2198.01(B), which authorizes the Arizona Department of Fire, Building and Life Safety to receive petitions regarding disputes between homeowners’ associations and their members. The jurisdiction of the Office is limited to ensuring compliance with A.R.S. Title 33, Chapter 16 and the specific planned community documents of the association.

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The Core Dispute: Unequal Assessments

The Petitioner challenged a dues structure that had been in place since approximately March 22, 1988. The Petitioner alleged that the Respondent violated the condominium and community documents by implementing the following monthly rate disparity:

Unit Type

Common Element Dues

2-Car Garage Unit

$70.58

1-Car Garage Unit

$57.75

Procedural Limitation

The ALJ ruled that the Petition could only address issues occurring after September 21, 2006, the effective date of the relevant statutes (A.R.S. § 41-2198, et seq.). The central legal question was narrowed to whether the Respondent’s governing documents provided the authority since September 2006 to assess owners at different rates based on garage capacity.

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Analysis of Governing Documents

The ALJ reviewed several key documents to determine the Respondent’s authority:

1. Original Declaration (1985): The Declaration of Horizontal Property Regime and Covenants, Conditions and Restrictions (CC&Rs).

2. Amendments (1986, 1989, 1994): Various recorded amendments to the original Declaration.

3. Clarification and Amendment Agreement (1987): Specifically, the addition of Paragraph 32.6.

Findings Regarding Paragraph 32.6

The Respondent cited Paragraph 32.6 as a potential source of authority. However, the ALJ’s analysis found this paragraph irrelevant to the current assessment practice:

• Scope: Paragraph 32.6 pertains specifically to the “Platting of Additional Property.”

• Purpose: It outlines how the “share of Common Expenses” should be calculated for units added to the Declaration at a later date, providing a formula for pro-rata portions if the number of units added differs from the original platting plan.

• Application: The document specifies that the calculation examples provided were intended only to illustrate the method for calculating assessments for added units and were not intended to reflect actual dollar amounts or general assessment practices for existing units.

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Respondent’s Admissions and Internal Challenges

In its answer to the complaint, the Respondent made several critical admissions that undermined its legal position:

• Lack of Support: The Respondent admitted that the Petitioner’s claim regarding unequal assessments was “endemic of a problem” and that the practice was not supported by Section 32.6 or any other provision in the Declaration.

• Loss of Institutional Knowledge: The Respondent stated that “no one currently serving on the Board of Directors… or Unit owners available to the Board can explain what Section 32.6 was intended to cover or how it was intended to be applied.”

• Attempted Reformation: The Board indicated they were attempting to pass an amendment to align the Declaration with past assessment practices. However, they expressed “fear” that the amendment would not pass, as it requires a 75% favorable vote of all unit owners.

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Conclusions of Law and Final Order

Legal Conclusions

1. Burden of Proof: The Petitioner carried the burden of proof by a preponderance of the evidence.

2. Unauthorized Assessments: The Respondent’s governing documents do not grant the authority to impose unequal assessments based on whether a unit has a one-car or two-car garage.

3. Compliance: The Respondent must abide by its governing documents, which, in their current state, require equal assessments.

Final Order

The Administrative Law Judge issued the following mandates:

• Cease Unequal Assessments: The Respondent must assess all unit owners equally, regardless of garage size, unless and until the governing documents are legally amended to provide for unequal assessments.

• Reimbursement of Fees: As the prevailing party, the Petitioner is entitled to the recovery of his filing fee. The Respondent was ordered to pay the Petitioner $550.00 within 30 days of the decision (September 2, 2008).

• Finality: This decision is the final administrative action and is enforceable through contempt of court proceedings.

Study Guide – 08F-H088018-BFS

Study Guide: Elmer Bittner vs. Greenfield Glen Homeowners Association

This study guide provides a comprehensive overview of the administrative hearing between Elmer Bittner and the Greenfield Glen Homeowners Association. It examines the legal dispute regarding assessment dues, the interpretation of governing documents, and the final decision rendered by the Office of Administrative Hearings.

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Review Quiz

1. What was the core allegation made by Elmer Bittner in his petition against the Greenfield Glen Homeowners Association? Elmer Bittner alleged that the Association changed common element dues from an equal rate to an unequal rate based on garage size. Specifically, he challenged the assessment of $70.58 for units with two-car garages compared to $57.75 for units with one-car garages, arguing this violated the condominium’s governing documents and Arizona law.

2. Which state agencies were involved in the processing and adjudication of this dispute? The Arizona Department of Fire, Building and Life Safety is authorized by statute to receive petitions regarding disputes between homeowner associations and their members. Once received, these petitions are forwarded to the Office of Administrative Hearings, an independent agency, for a formal hearing and decision.

3. Why was the scope of the Administrative Law Judge’s review limited to issues occurring after September 21, 2006? The Administrative Law Judge ruled that the petition could not address issues predating the effective date of A.R.S. § 41-2198, et seq. Because this specific statute became effective on September 21, 2006, the judge narrowed the dispute to whether the Association had the authority to assess unequal rates from that date forward.

4. According to the Findings of Fact, what are the primary governing documents of the Greenfield Glen Homeowners Association? The governing documents include the original 1985 Declaration of Horizontal Property Regime and Covenants, Conditions and Restrictions, as well as several amendments. These amendments were recorded in Maricopa County in February 1986, August 1987, August 1989, and December 1994.

5. How did the 1987 Clarification and Amendment Agreement (Paragraph 32.6) describe the calculation of assessments for added units? Paragraph 32.6 stated that the share of common expenses for units added to the Declaration must be equal to the pro rata portion that would have been borne if the property had been platted according to the original Exhibit “B.” It provided a mathematical example showing that if a parcel intended for 21 units was replatted for 14, the expenses would be redistributed so the total amount collected remained consistent with the original plan.

6. What admission did the Respondent make in its Answer regarding the practice of unequal assessments? The Association admitted that it had levied unequal assessments based on garage spaces for a number of years. However, it explicitly stated that this practice was not supported by Section 32.6 or any other provision in the Declaration, and that current board members could not explain the original intent of that section.

7. What plan did the Association’s Board of Directors outline to resolve the discrepancy between their practices and the Declaration? The Board planned to submit an amendment to the Unit owners to align the Declaration with past assessment practices. If the required seventy-five percent favorable vote was not obtained, the Board intended to appeal to the Superior Court of Maricopa County to reform the Declaration.

8. What is the legal standard of proof required in this administrative matter, and who carries it? Pursuant to A.A.C. R2-19-119(B), the Petitioner (Elmer Bittner) carries the burden of proof. The standard of proof required to prevail in the matter is a preponderance of the evidence.

9. What was the Administrative Law Judge’s final legal conclusion regarding the Association’s authority to charge different rates? The judge concluded that the Respondent’s governing documents, including the specific language in paragraph 32.6, did not grant the Association the authority to impose unequal assessments based on garage size. Consequently, the Association was ordered to abide by its documents and assess units equally in the future.

10. Aside from the change in future assessment practices, what financial restitution was ordered? Because the Petitioner was the prevailing party, the judge ordered the Respondent to pay the Petitioner his $550.00 filing fee. This payment was required to be made within 30 days of the date of the decision.

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Answer Key

1. Answer: The Petitioner alleged that the Association violated governing documents by charging higher common element dues for two-car garage units (70.58)thanforone−cargarageunits(57.75).

2. Answer: The Arizona Department of Fire, Building and Life Safety (received the petition) and the Office of Administrative Hearings (conducted the formal hearing).

3. Answer: The statute granting the authority for such administrative hearings (A.R.S. § 41-2198) did not become effective until September 21, 2006.

4. Answer: The 1985 Declaration and four subsequent amendments/agreements dated 1986, 1987, 1989, and 1994.

5. Answer: Assessments for added property must be a pro rata portion of common expenses based on the original platting density; if fewer units are built than originally planned, each unit pays a higher share to cover the total expenses.

6. Answer: The Association admitted that unequal assessments were “endemic of a problem” and conceded that no provision in the Declaration actually supported the practice.

7. Answer: They attempted to pass an amendment requiring 75% approval and, if that failed, planned to seek a court-ordered reformation of the Declaration.

8. Answer: The Petitioner carries the burden of proof, and the standard is “preponderance of the evidence.”

9. Answer: The judge found that the governing documents did not authorize unequal assessments and ordered the Association to cease the practice until or unless the documents are legally amended.

10. Answer: The Respondent was ordered to reimburse the Petitioner’s $550.00 filing fee within 30 days.

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Essay Questions

1. Statutory Limitations on Administrative Relief: Discuss the implications of the Administrative Law Judge’s ruling to exclude issues predating September 21, 2006. How does the effective date of a statute (like A.R.S. § 41-2198) impact the ability of a homeowner to seek redress for long-standing association practices?

2. Interpretation of Governing Documents: Analyze the Association’s admission that its assessment practices were not supported by its own Declaration. Why is strict adherence to the written Declaration critical in the management of a homeowners association, and what are the risks of “past assessment practices” that deviate from these documents?

3. The Complexity of Paragraph 32.6: Explain the logic of the “pro rata portion” calculation described in the 1987 Amendment. How does this provision attempt to protect the Association’s budget when the density of a development changes, and why was it insufficient to justify the garage-based assessments in this case?

4. The Amendment Process and Legal Reformation: The Association expressed fear that a 75% vote for an amendment would not pass. Compare the process of member-led amendments to the legal process of “reforming” a Declaration through the Superior Court. What are the democratic and legal hurdles involved in each?

5. The Role of the Petitioner in Administrative Law: Evaluate the role of Elmer Bittner as the Petitioner. Given that he had the legal recourse to sue since 1988 but waited until 2008, discuss how the administrative hearing process provides a different or more accessible avenue for justice compared to traditional litigation.

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Glossary of Key Terms

Definition

A.R.S. § 41-2198

The Arizona Revised Statute that authorizes the Department of Fire, Building and Life Safety to receive petitions regarding HOA disputes.

Administrative Law Judge (ALJ)

A judge who presides over hearings and makes decisions in disputes involving government agencies.

Assessment

The amount of money a homeowner is required to pay to the association for common expenses and maintenance.

Common Expenses

The costs associated with the operation, maintenance, and repair of the common elements of a condominium or planned community.

Declaration

The primary governing document (CC&Rs) that outlines the rights and responsibilities of the association and the unit owners.

Horizontal Property Regime

A legal structure for property ownership, commonly used for condominiums, where individuals own units and share common areas.

Petitioner

The party who initiates a legal action or petition (in this case, Elmer Bittner).

Platting / Replatting

The process of creating or changing a map (plat) showing the divisions of a piece of land into individual units or lots.

Preponderance of the Evidence

The standard of proof in most civil cases, meaning that the claim is more likely to be true than not true.

Pro Rata

A proportional allocation or distribution based on a specific factor (such as the number of units).

Respondent

The party against whom a petition is filed (in this case, the Greenfield Glen Homeowners Association).

Blog Post – 08F-H088018-BFS

The 20-Year “Garage Tax”: What One Arizona Homeowner’s Victory Teaches Us About HOA Power

The Hook: The Hidden Cost of Living in an Association

For most residents of planned communities, monthly Homeowners Association (HOA) dues are accepted as a necessary evil—the price of admission for clean streets and shared amenities. We pay them under a contract of trust, assuming the Board is following the law. But what happens when that trust is broken by a David-versus-Goliath struggle against institutional overreach?

Elmer Bittner, a resident of the Greenfield Glen Homeowners Association in Mesa, Arizona, looked at his bill and realized something was fundamentally wrong. For years, he and other residents were being subjected to what can only be described as “unauthorized taxation.” Bittner discovered he was being charged significantly higher monthly dues than his neighbors for one reason: he had a two-car garage. This discovery sparked a legal showdown at the Arizona Office of Administrative Hearings that exposed how easily an HOA can drift into illegal financial practices under the guise of “tradition.”

Takeaway 1: Longevity Does Not Equal Legality

One of the most alarming aspects of Bittner v. Greenfield Glen is the sheer duration of the injustice. The unequal assessment practice began on March 22, 1988, yet it took until 2008 for a legal ruling to stop it. This 20-year “garage tax” persisted because of institutional inertia—the dangerous tendency of homeowners to assume a rule is valid simply because “that’s the way it’s always been.”

While the unfairness spanned two decades, the Administrative Law Judge (ALJ) highlighted a critical hurdle for civic-minded homeowners: the law often has a short memory. The ALJ ruled that the case could only address issues arising after September 21, 2006—the effective date of A.R.S. § 41-2198. This serves as a vital lesson: your right to challenge HOA overreach often depends on specific, modern legal tools that may not have existed when the original “tradition” began. The financial discrepancy was stark:

Takeaway 2: The “We Don’t Know Why” Defense

When forced to justify why they were overcharging residents, the Association’s defense was a masterclass in absurdity. In Section 14 of the Findings of Fact, the Board essentially admitted they were enforcing a financial penalty that they themselves did not understand.

The Association attempted to hide behind “Section 32.6” of the governing documents. However, a deeper look at the 1987 Clarification and Amendment Agreement reveals that Section 32.6 was actually titled “Platting of Additional Property.” It was a clause meant to handle the shapes and sizes of units when adding new land to the development—not a license to charge different rates for garage space. The Association’s own admission in their Answer to the Complaint was a stunning display of incompetence:

For a governing body to demand money based on a clause they cannot explain is more than just a mistake; it is a breach of fiduciary duty.

Takeaway 3: The Governing Documents Are Final (Until They Aren’t)

The ALJ made it clear: an HOA must abide by its written documents, regardless of past practices. The Board at Greenfield Glen knew they were on shaky ground and attempted to “align” the documents with their illegal practices through a post-facto amendment. However, they faced a terrifying hurdle: the requirement for a 75% favorable vote of all Unit owners (voting or not).

This “voting or not” provision is a trap for modern homeowners. In this system, a neighbor’s apathy—simply failing to return a ballot—is legally recorded as a “No” vote. This makes reforming even an illegal practice nearly impossible. Rather than admitting fault when the vote seemed likely to fail, the Board planned a secondary aggressive maneuver: they intended to “appeal to the Superior Court… to reform the Declaration.” Essentially, the Board was prepared to spend the community’s own money on high-stakes litigation to force a legal change that would have validated their past unauthorized assessments.

Takeaway 4: The Small Victories Matter

The ruling was a definitive win for homeowner rights. The ALJ didn’t just suggest a change; he issued a mandate. The Association was ordered to cease unequal assessments and refund Bittner’s $550 filing fee.

For the individual homeowner, these administrative hearings are a powerful equalizer. They offer a venue to seek justice without the crushing initial costs of a Superior Court lawsuit. Perhaps most importantly, the ALJ’s decision has “teeth.” The order specifically notes that it is “enforceable through contempt of court proceedings.” This means that if an HOA decides to ignore the ruling and continue its unauthorized taxation, the Board could face the full weight of the judicial system.

Conclusion: A Final Thought for the Modern Homeowner

The victory of Elmer Bittner is a testament to the power of a single homeowner with a copy of the Declaration and the courage to ask “why?” It highlights a disturbing reality: many HOAs operate on a foundation of “tradition” and “past practice” that contradicts the very laws they are sworn to uphold.

If you looked at your HOA’s founding documents today, would the fees you pay actually be in writing, or are you paying for a tradition that doesn’t legally exist?

Case Participants

Petitioner Side

Elmer Bittner (petitioner)
Appeared personally

Respondent Side

Franklyn D. Jeans (HOA attorney)
Beus Gilbert, PLC
Nicole S. Cassett (HOA attorney)
Beus Gilbert, PLC

Neutral Parties

Brian Brendan Tully (ALJ)
Office of Administrative Hearings
Robert Barger (Director)
Department of Fire, Building and Life Safety
Listed on mailing distribution
Debra Blake (Agency staff)
Department of Fire, Building and Life Safety
Listed on mailing distribution

Kotrodimos, Leo & Nancy vs. The Estates at Desert Shadows

Posted on June 16, 2008 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	08F-H088015-BFS
Agency	DFBLS
Tribunal	OAH
Decision Date	2008-06-16
Administrative Law Judge	Michael G. Wales
Outcome	no
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Leo and Nancy Kotrodimos	Counsel	—
Respondent	The Estates at Desert Shadows Community Association, Inc.	Counsel	Curtis S. Ekmark, Esq.; Eric J. Boyd, Esq.

Alleged Violations

Unknown

Outcome Summary

The Administrative Law Judge dismissed the petition based on the Petitioners' request to withdraw filed on or about April 2, 2008, and the Respondent's withdrawal of its request for attorney fees.

Why this result: Petitioners withdrew their petition.

Key Issues & Findings

Unknown

Petitioners requested to withdraw their Petition.

Orders: The Petition is dismissed in its entirety upon the Petitioners' request to withdraw.

Filing fee: $0.00, Fee refunded: No

Disposition: dismissed

Decision Documents

08F-H088015-BFS Decision – 196775.pdf

Uploaded 2026-01-25T15:23:17 (57.6 KB)

Briefing Doc – 08F-H088015-BFS

Briefing Document: Dismissal of Case No. 08F-H088015-BFS

Executive Summary

This document provides a synthesis of the administrative order issued by the Arizona Office of Administrative Hearings regarding the legal matter between Leo and Nancy Kotrodimos and The Estates at Desert Shadows Community Association, Inc.

The case concluded on June 16, 2008, with an “Order Dismissing Petition.” The dismissal was precipitated by the Petitioners’ voluntary request to withdraw their petition and a subsequent withdrawal of a request for attorney fees by the Respondent. Pursuant to Arizona Revised Statutes (A.R.S.) §41-2198.04(A), this order constitutes a final administrative decision, precluding any further requests for rehearing.

Administrative Context and Case Identification

The proceedings were conducted under the jurisdiction of the Office of Administrative Hearings in Phoenix, Arizona. The case details are summarized below:

Attribute

Detail

Case Number

08F-H088015-BFS (Reference No. HO 08-8/015)

Petitioners

Leo and Nancy Kotrodimos

Respondent

The Estates at Desert Shadows Community Association, Inc.

Presiding Judge

Michael G. Wales, Administrative Law Judge

Issuing Authority

Office of Administrative Hearings

Date of Order

June 16, 2008

Procedural Resolution

The dismissal of the petition was not the result of a summary judgment or a full evidentiary hearing on the merits, but rather a mutual cessation of claims.

Petition Withdrawal

The document indicates that the Petitioners, Leo and Nancy Kotrodimos, filed a request to withdraw their petition on or about April 2, 2008. The source context does not specify the underlying reasons for the Petitioners’ decision to withdraw.

Attorney Fees

Concurrent with the Petitioners’ withdrawal, the Respondent, The Estates at Desert Shadows Community Association, Inc., withdrew its request for an award of attorney fees. This mutual withdrawal of claims and requests facilitated the clean dismissal of the case.

Judicial Ruling

Based on these filings, Administrative Law Judge Michael G. Wales ordered the dismissal of the petition against the Respondent in its entirety.

Legal Finality and Statutory Authority

The order emphasizes the finality of the administrative process in this matter. Under the authority of A.R.S. §41-2198.04(A), the document establishes the following:

• Finality: The order is designated as a “final administrative decision.”

• Rehearing Restriction: The decision is “not subject to a request for rehearing.”

Key Entities and Distribution

The order identified several key legal and administrative entities involved in the distribution of the final decision:

Legal Representation for Respondent

The Respondent was represented by the law firm Ekmark & Ekmark, LLC, specifically:

• Curtis S. Ekmark, Esq.

• Eric J. Boyd, Esq.

Regulatory Oversight

A copy of the order was directed to the Department of Fire Building and Life Safety – H/C, specifically to:

• Robert Barger, Director

• Debra Blake

Contact Information for Record

• Petitioners’ Address: 2234 N. Calle Largo, Mesa, Arizona 85207.

• Respondent’s Counsel Address: 6720 N. Scottsdale Rd., Scottsdale, AZ 85253.

• Office of Administrative Hearings Address: 1400 West Washington, Suite 101, Phoenix, Arizona 85007.

Study Guide – 08F-H088015-BFS

Study Guide: Kotrodimos v. The Estates at Desert Shadows Community Association, Inc.

This study guide provides a comprehensive review of the legal order issued by the Arizona Office of Administrative Hearings regarding Case No. 08F-H088015-BFS. The document focuses on the administrative dismissal of a petition involving a community association and the finality of such decisions under Arizona law.

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Part 1: Short-Answer Quiz

Instructions: Answer the following questions using 2–3 sentences based on the information provided in the source context.

1. Who are the primary parties involved in this administrative case?

2. What was the specific action taken by the Office of Administrative Hearings on June 16, 2008?

3. What prompted the Administrative Law Judge to dismiss the petition?

4. What did the Respondent agree to withdraw during these proceedings?

5. Under which specific Arizona Revised Statute (A.R.S.) was this order issued?

6. What is the status of this order regarding its finality and potential for rehearing?

7. Where is the Office of Administrative Hearings located?

8. Who represented the Respondent in this matter?

9. Which state department and director were included in the mailing list for this order?

10. On what approximate date was the original petition filed?

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Part 2: Answer Key

1. Who are the primary parties involved in this administrative case? The Petitioners are Leo and Nancy Kotrodimos, residents of Mesa, Arizona. The Respondent is The Estates at Desert Shadows Community Association, Inc.

2. What was the specific action taken by the Office of Administrative Hearings on June 16, 2008? The Office issued an “Order Dismissing Petition,” effectively closing Case No. 08F-H088015-BFS. The order dismissed the petition against the Respondent in its entirety.

3. What prompted the Administrative Law Judge to dismiss the petition? The dismissal was prompted by the Petitioners’ own request to withdraw their petition. The judge acted upon this request, which had been filed on or about April 2, 2008.

4. What did the Respondent agree to withdraw during these proceedings? The Respondent, The Estates at Desert Shadows Community Association, Inc., withdrew its request for an award of attorney fees. This withdrawal occurred in conjunction with the Petitioners’ request to dismiss the case.

5. Under which specific Arizona Revised Statute (A.R.S.) was this order issued? The order cites A.R.S. §41-2198.04(A) as the governing authority for the decision. This statute establishes the order as a final administrative decision.

6. What is the status of this order regarding its finality and potential for rehearing? The order is considered a final administrative decision. Per the cited statute, it is explicitly not subject to a request for rehearing.

7. Where is the Office of Administrative Hearings located? The office is located in Phoenix, Arizona. Specifically, the address provided is 1400 West Washington, Suite 101, Phoenix, AZ 85007.

8. Who represented the Respondent in this matter? The Respondent was represented by attorneys Curtis S. Ekmark and Eric J. Boyd. They are associated with the firm Ekmark & Ekmark, LLC, located in Scottsdale, Arizona.

9. Which state department and director were included in the mailing list for this order? Robert Barger, the Director of the Department of Fire Building and Life Safety, was included on the mailing list. The notice was specifically directed to the attention of Debra Blake within that department.

10. On what approximate date was the original petition filed? According to the order, the Petitioners filed their request to withdraw the petition on or about April 2, 2008. The source indicates that the dismissal was pursuant to this specific filing date.

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Part 3: Essay Questions

Instructions: Use the provided source context to develop comprehensive responses to the following prompts. (Answers not provided).

1. The Role of Consent in Administrative Dismissals: Analyze how the mutual withdrawals (the petition by the Kotrodimos and the attorney fees by the Association) influenced the Administrative Law Judge’s decision to dismiss the case in its entirety.

2. Statutory Finality in Arizona Law: Discuss the implications of A.R.S. §41-2198.04(A) on the legal rights of the parties involved. Why might a legislative framework forbid a request for rehearing in an administrative context?

3. Procedural Responsibilities of the Office of Administrative Hearings: Based on the “Order Dismissing Petition,” describe the formal requirements for documenting and communicating a final administrative decision to all involved parties.

4. Community Association Disputes: Using this case as a template, explore the typical structure of a legal dispute between homeowners and a community association within the Arizona administrative system.

5. The Function of the Administrative Law Judge: Evaluate the role of Michael G. Wales in this proceeding. How does his authority manifest in the closing of a case where the parties have reached a mutual cessation of claims?

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Part 4: Glossary of Key Terms

Definition

A.R.S. §41-2198.04(A)

The specific Arizona Revised Statute that governs the finality of administrative decisions in this context, making them exempt from rehearing requests.

Administrative Law Judge (ALJ)

A presiding official (in this case, Michael G. Wales) who hears and decides cases within an administrative agency.

Attorney Fees

Legal costs requested by a party to cover their representation; in this case, the Respondent withdrew their request for these fees.

Community Association

A legal entity (The Estates at Desert Shadows Community Association, Inc.) responsible for managing a specific residential development.

Department of Fire Building and Life Safety

The state agency involved in the oversight of the matter, represented by Director Robert Barger in the distribution list.

Dismissal

A formal order by the judge to end a legal proceeding without further trial or hearing.

Office of Administrative Hearings (OAH)

The Arizona state office responsible for conducting independent hearings for various state agencies.

Petition

The formal written document filed by the Kotrodimos (Petitioners) to initiate the legal grievance.

Petitioner

The party who initiates a lawsuit or legal proceeding (Leo and Nancy Kotrodimos).

Respondent

The party against whom a legal action is brought (The Estates at Desert Shadows Community Association, Inc.).

Withdrawal

The voluntary removal of a claim or request by a party in a legal case.

Blog Post – 08F-H088015-BFS

The Negotiated Exit: Why a Strategic Withdrawal Can Be the Ultimate Win in HOA Litigation

1. Introduction: The Quiet End to a Loud Dispute

In the high-stakes world of community association law, disputes often begin with a roar and end in a fiscal graveyard. Homeowners and Community Associations (HOAs) frequently find themselves locked in a cycle of escalating grievances and mounting legal invoices that threaten to eclipse the original dispute. We often expect these battles to conclude with a gavel-strike—a definitive “winner” and “loser.”

However, a masterclass in litigation avoidance can be found in a case heard within the Department of Fire Building and Life Safety context. On June 16, 2008, in the sterile environment of the Office of Administrative Hearings in Phoenix, Arizona, the matter of Leo and Nancy Kotrodimos vs. The Estates at Desert Shadows Community Association, Inc. (Case No. 08F-H088015-BFS) reached its conclusion. It didn’t end with a judgment, but with a strategic retreat that offers profound lessons for any board member or homeowner currently in the trenches.

2. The Power of the Voluntary Withdrawal

The legal machinery ground to a halt not because of a trial, but because of a choice.

The Petitioners, the Kotrodimos family, elected to withdraw their petition originally filed on April 2, 2008.

In administrative law, a voluntary withdrawal is more than a surrender; it is a pivot.

It suggests an “off-ramp” strategy—a realization that the administrative costs may soon outweigh the potential recovery.

By stepping away, the parties bypass the volatility of a judicial ruling and reclaim control over the narrative.

Administrative Law Judge Michael G. Wales formalized this strategic exit, using the internal reference Case No. HO 08-8/015 to issue the directive:

3.The Strategic Trade-Off: Attorney Fees as a Bargaining Chip

While the withdrawal of the petition was the primary move, the “negotiated exit” was secured by a crucial quid pro quo. The Estates at Desert Shadows Community Association, Inc. concurrently withdrew its request for an award of attorney fees.

In the ecosystem of HOA disputes, attorney fees are often the “poison pill” that prevents resolution. Parties frequently continue litigating simply because they cannot afford the risk of losing and being saddled with the opponent’s legal bills. By both sides backing down simultaneously, they neutralized the financial standoff. This mutual dismissal created a clean slate, allowing the association and the homeowners to walk away without the lingering sting of a secondary financial battle.

4.The Finality of the “Final Administrative Decision”

The Order signed by Judge Wales on June 16, 2008, carried a weight that many laypeople might overlook. It was not a temporary stay; it was a permanent seal. Under A.R.S. §41-2198.04(A), this dismissal is classified as a “final administrative decision.”

This “no-turning-back” clause is a critical component of strategic resolution. Because the decision is final and not subject to a request for rehearing, it provides the one thing that litigation rarely offers: absolute certainty. For The Estates at Desert Shadows Community Association, Inc. and the Kotrodimos family, the signing of this order meant the dispute was legally dead, with no opportunity for revival in that forum.

5. Conclusion: A Lesson in Resolution

The resolution of the Kotrodimos case serves as a poignant reminder that in the Office of Administrative Hearings, a “win” isn’t always defined by a favorable verdict. Sometimes, the most sophisticated legal move is to orchestrate a mutual exit that preserves resources and restores peace to the community.

When we strip away the filings and the procedural posturing, we are left with a fundamental question: Is the true victory found in the fight itself, or in the wisdom to secure a clean, final exit before the costs of “winning” become too high to pay?

Case Participants

Petitioner Side

Leo Kotrodimos (petitioner)
Nancy Kotrodimos (petitioner)

Respondent Side

Curtis S. Ekmark (attorney)
Ekmark & Ekmark, LLC
Attorney for Respondent
Eric J. Boyd (attorney)
Ekmark & Ekmark, LLC
Attorney for Respondent

Neutral Parties

Michael G. Wales (ALJ)
Office of Administrative Hearings
Robert Barger (Director)
Department of Fire Building and Life Safety
Copy recipient
Debra Blake (agency staff)
Department of Fire Building and Life Safety
Copy recipient

Sawyer, Mike vs. Terramar Homeowners Association

Posted on June 13, 2008 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	08F-H088013-BFS
Agency	Department of Fire, Building and Life Safety
Tribunal	OAH
Decision Date	2008-06-13
Administrative Law Judge	Thomas Shedden
Outcome	yes
Filing Fees Refunded	$550.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Mike Sawyer	Counsel	—
Respondent	Terramar Homeowners Association	Counsel	R. Corey Hill

Alleged Violations

A.R.S. § 33-1813

Outcome Summary

The Administrative Law Judge ruled in favor of the Petitioner, finding that the recall petition contained sufficient signatures (305 out of 1550 members) to trigger an election under A.R.S. § 33-1813. The HOA's defenses regarding the validity of the signatures were rejected because they offered no actual proof of the alleged defects (e.g., forgeries, ineligible signers) aside from hearsay regarding one individual.

Key Issues & Findings

Failure to hold recall election

Petitioner alleged the HOA violated statutes by failing to conduct a recall election upon receipt of a petition signed by more than 10% of the members. The HOA argued the petition was defective due to forged signatures, lack of solicitor verification, and other procedural issues but failed to provide sufficient evidence to support these affirmative defenses.

Orders: The HOA is ordered to comply with A.R.S. § 33-1813 by holding a recall election for the four named board members within 30 days and to refund the Petitioner's $550.00 filing fee.

Filing fee: $550.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

A.R.S. § 33-1813
A.R.S. § 41-2198
A.R.S. § 16-315

Decision Documents

08F-H088013-BFS Decision – 192785.pdf

Uploaded 2026-01-25T15:22:50 (100.7 KB)

Briefing Doc – 08F-H088013-BFS

Briefing Document: Sawyer v. Terramar Homeowners Association (No. 08F-H088013-BFS)

Executive Summary

This document provides a comprehensive synthesis of the administrative hearing decision regarding the dispute between Petitioner Mike Sawyer and Respondent Terramar Homeowners Association (HOA). The central issue was the HOA’s failure to conduct a recall election for four board members despite receiving a petition signed by over 10% of the membership.

The Administrative Law Judge (ALJ) ruled in favor of Mike Sawyer, finding that the HOA failed to provide evidence supporting its claims that the petition was legally or procedurally defective. Consequently, the HOA was ordered to hold the recall election within 30 days and reimburse the petitioner’s filing fee.

Case Overview

• Petitioner: Mike Sawyer

• Respondent: Terramar Homeowners Association

• Targeted Board Members: Ben Dass, Don Flickinger, Keith Miller, and David Mosienko.

• Primary Allegation: The HOA violated A.R.S. § 33-1813 by refusing to hold a recall election after being presented with a valid petition.

Arguments and Affirmative Defenses

The HOA contended that the petition was invalid based on several alleged procedural and legal defects. Their defense relied on both specific allegations and broader public policy arguments.

Alleged Petition Defects

The HOA asserted the following issues rendered the signatures invalid:

• Solicitation Issues: Failure to identify those soliciting signatures and failure to verify that solicitors were HOA residents.

• Petitioner Identity: Failure to properly identify the petitioner.

• Signatory Eligibility: Inclusion of signatures from renters, homeowners ineligible to vote (due to CC&R violations), and signatures that appeared to be forged.

• Physical Evidence: Claims that some street names were misspelled and that multiple entries appeared to be written in the same hand or the same ink color.

Public Policy Defense

The HOA argued that, as a matter of public policy, the petition should conform to state election laws found in A.R.S. Title 16.

Evidence and Testimony Analysis

The tribunal examined the validity of the petition through testimony from both parties and a review of the physical evidence.

Quantitative Analysis of the Petition

• Total Membership: Approximately 1,550 members.

• Statutory Requirement: A.R.S. § 33-1813 requires a petition signed by at least 10% of the members (approximately 155 signatures) to trigger a recall.

• Petition Count: The submitted petition contained 305 signatures, nearly double the required threshold.

Witness Testimonies

• Mike Sawyer (Petitioner): Testified that he was a homeowner who signed and solicited signatures. He admitted he did not sign the pages he solicited because he did not believe it was a requirement.

• Ben Dass (HOA President): Testified that the HOA hired an independent lawyer with private funds to investigate the petition. He claimed to have spoken with renters and individuals who denied signing, though he provided no specific details or counts of these instances.

• Dr. Keith Miller (HOA Board Member): Expressed suspicion over misspelled street names and ink colors. While he alleged many signatures were invalid due to CC&R violations, he provided no supporting details or specific names. Notably, he had previously testified in a different court that there were 180 valid signatures, a statement he dismissed at this hearing as “guessing.”

• Rick Card (Rebuttal Witness): Contradicted the HOA’s claim regarding a specific signatory, Lawrence “Hap” Flayter. While the HOA provided a letter from Mr. Flayter stating he did not recall signing, Mr. Card testified that he personally witnessed Mr. Flayter sign the petition.

Legal Conclusions

The ALJ’s decision was based on the application of Arizona statutes and the failure of the HOA to meet its burden of proof regarding its affirmative defenses.

Application of Law

1. Jurisdiction: The Office of Administrative Hearings has the authority to determine if a planned community violated A.R.S. Title 33.

2. Burden of Proof: The HOA bore the burden of proving its affirmative defenses regarding the petition’s defects. The standard of proof was a “preponderance of the evidence.”

3. Inapplicability of Title 16: The ALJ rejected the HOA’s public policy argument, noting there was no evidence that the HOA’s governing documents (Articles of Incorporation, Bylaws, or CC&Rs) required petitions to conform to state election laws (Title 16).

Findings on Credibility and Evidence

• Lack of Specificity: The HOA failed to provide the names or the specific number of signatures they believed were forged or invalid.

• Suspect Credibility: Dr. Miller’s testimony was deemed suspect because he based his suspicions on ink colors and handwriting while simultaneously admitting he had only seen copies, not the original petition.

• Hearsay: The letter and hearsay testimony regarding Mr. Flayter were given “no appreciable weight” because he did not testify and was not subject to cross-examination.

Final Order

The Administrative Law Judge ruled that Mike Sawyer sustained his burden of proof and was the prevailing party. The following orders were issued:

• Recall Election: Terramar HOA must comply with A.R.S. § 33-1813 and hold a recall election for board members Ben Dass, Don Flickinger, Keith Miller, and David Mosienko within 30 days of the effective date of the order (June 13, 2008).

• Financial Restitution: Terramar HOA must pay Mike Sawyer $550.00 for his filing fee within 30 days.

• Finality: This order constitutes the final administrative decision and is enforceable through contempt of court proceedings.

Study Guide – 08F-H088013-BFS

Study Guide: Sawyer v. Terramar Homeowners Association

This study guide provides a comprehensive review of the administrative law case between Mike Sawyer and the Terramar Homeowners Association. It examines the legal requirements for homeowner association (HOA) recall elections, the burden of proof in administrative hearings, and the specific findings of fact that led to the judicial order.

Part 1: Short Answer Quiz

Instructions: Answer the following questions based on the provided administrative decision. Each answer should be between two and three sentences.

1. What was the central allegation made by the petitioner, Mike Sawyer, against the Terramar Homeowners Association?

2. Which specific individuals were the targets of the recall petition submitted by the homeowners?

3. What procedural and legal defects did the HOA allege rendered the petition invalid in its initial response?

4. How did the HOA attempt to use A.R.S. Title 16 to defend its decision not to hold the election?

5. Why did HOA President Ben Dass use private funds rather than HOA funds to hire an independent lawyer for handwriting analysis?

6. What was the nature of the dispute regarding Lawrence “Hap” Flayter’s signature on the petition?

7. What specific suspicions did Dr. Keith Miller raise regarding the physical appearance of the petition pages?

8. According to the Conclusions of Law, what is the specific jurisdictional limit of the Office of Administrative Hearings in disputes involving planned communities?

9. How did the Administrative Law Judge determine that the petition met the statutory threshold for a recall election?

10. What were the three specific requirements mandated by the Administrative Law Judge’s final order?

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Part 2: Answer Key

1. Mike Sawyer alleged that the Terramar Homeowners Association violated A.R.S. § 33-1813 by failing to hold a recall election for four board members after being presented with a valid petition. He filed this petition with the Arizona Department of Fire, Building and Life Safety on March 27, 2008.

2. The petition specifically called for the removal of board members Ben Dass, Don Flickinger, Keith Miller, and David Mosienko. These individuals were identified in the petition as the subjects of the requested recall election.

3. The HOA claimed the petition failed to identify those soliciting signatures or verify they were residents, and failed to identify the petitioner. Additionally, they alleged the petition included invalid signatures from renters, signatures from homeowners ineligible to vote, and forged signatures.

4. The HOA asserted that public policy, as supported by the election laws in A.R.S. Title 16, should be applied to the petition process. However, the Judge ruled Title 16 was inapplicable because the HOA’s governing documents did not require petitions to conform to state election laws.

5. Ben Dass hired an independent lawyer with private funds because he wanted to avoid potential allegations of misusing HOA funds. This lawyer was retained to oversee a handwriting analysis of the signatures on the petition.

6. The HOA provided a letter from Mr. Flayter stating he did not recall signing the petition and did not want to be included. In contrast, witness Rick Card provided rebuttal testimony claiming he personally saw Mr. Flayter sign the document.

7. Dr. Miller testified that he was suspicious because some street names were misspelled and several entries appeared to be written by the same hand. He also noted that many signatures were written in the same color of ink, though he admitted he had only viewed copies of the petition.

8. The Office of Administrative Hearings has limited jurisdiction to determine if a homeowners association violated A.R.S. Title 33, Chapter 9 or 16, or the association’s specific governing documents. These documents include the Articles of Incorporation, Bylaws, and Covenants, Conditions, and Restrictions (CC & Rs).

9. The Judge found that the petition contained 305 signatures, which exceeded the 10% requirement for a recall election under A.R.S. § 33-1813. This calculation was based on Dr. Miller’s testimony that there are approximately 1,550 members in the HOA.

10. The order required that Mike Sawyer be deemed the prevailing party and that the HOA must hold a recall election for the four specified board members within 30 days. Furthermore, the HOA was ordered to reimburse Sawyer for his $550.00 filing fee.

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Part 3: Essay Questions

Instructions: Use the case facts and legal principles described in the source text to develop comprehensive responses to the following prompts.

1. The Burden of Proof and Affirmative Defenses: Analyze the role of the “preponderance of the evidence” standard in this case. How did the HOA’s failure to provide specific details—such as the names of allegedly forged signatures or the number of ineligible voters—impact the Judge’s ruling on their affirmative defenses?

2. Credibility of Testimony: Evaluate the Judge’s assessment of witness credibility, specifically regarding Dr. Keith Miller and Ben Dass. Why was Dr. Miller’s testimony about the color of the ink on the petition used to undermine his overall credibility?

3. Hearsay and Evidence Weight: Discuss why the letter from Lawrence “Hap” Flayter and the hearsay testimony regarding his signature were given “no appreciable weight” by the Administrative Law Judge. Compare this to the weight given to the live, cross-examined testimony of Rick Card.

4. Statutory Interpretation vs. Public Policy: The Respondent argued that A.R.S. Title 16 (Election Laws) should apply to HOA recall petitions based on public policy. Explain the Judge’s reasoning for rejecting this argument and why the HOA’s own governing documents are the primary authority in such matters.

5. Administrative Remedies and Enforcement: Examine the final orders issued by the ALJ. What is the significance of the 30-day timeline, the reimbursement of the filing fee, and the statement that the order is enforceable through contempt of court proceedings?

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Part 4: Glossary of Key Terms

Definition

A.R.S. § 33-1813

The Arizona Revised Statute that governs the process and requirements for the removal of board members in a planned community.

A.R.S. § 41-2198

The statutory authority that allows the Office of Administrative Hearings to conduct evidentiary hearings in disputes between members and planned communities.

Administrative Law Judge (ALJ)

An official who presides over an administrative hearing, evaluates evidence and testimony, and issues a decision and order.

Affirmative Defense

A fact or set of facts other than those alleged by the petitioner which, if proven by the respondent, defeats or mitigates the legal consequences of the respondent’s otherwise unlawful conduct.

CC & Rs

Covenants, Conditions, and Restrictions; the governing documents that outline the rules and limitations for property owners within a planned community.

Hearsay

An out-of-court statement offered in court to prove the truth of the matter asserted; in this case, the judge gave such evidence little weight because the declarant was not subject to cross-examination.

Petitioner

The party who initiates a legal action or appeal; in this case, Mike Sawyer.

Preponderance of the Evidence

The standard of proof in civil and administrative cases, meaning that the claim is more likely to be true than not true.

Prevailing Party

The party in a lawsuit who successfully wins the case or obtains the relief sought; here, the Petitioner.

Respondent

The party against whom a petition is filed; in this case, the Terramar Homeowners Association.

Blog Post – 08F-H088013-BFS