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
- A.R.S. § 41-2198
- Declaration Paragraph 32.6
Decision Documents
08F-H088018-BFS Decision – 197550.pdf
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: 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).
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
