Leckey, Richard M. vs. Dreamland Villa Community Club

Posted on January 26, 2009 by [email protected]

Case Summary

Case ID	08F-H089008-BFS
Agency	DFBLS
Tribunal	OAH
Decision Date	2009-01-26
Administrative Law Judge	Lewis D. Kowal
Outcome	false
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Richard M. Leckey	Counsel	—
Respondent	Dreamland Villa Community Club	Counsel	Jeffrey B. Corben, Esq.

Alleged Violations

Respondent’s Constitution Article V, Section 1; By-Laws Article X, Sections 1 and 3; By-Laws Article XI, Section 3 and 3(c)

Outcome Summary

The Administrative Law Judge granted the Respondent's motion to dismiss. The single issue raised by Petitioner regarding proxy votes from 2004 pre-dated the enabling legislation for the OAH's jurisdiction (effective Sept 21, 2006), which does not have retroactive effect. Furthermore, the ALJ ruled that the Respondent's Constitution is not a planned community document subject to OAH jurisdiction.

Why this result: Lack of subject matter jurisdiction over acts occurring prior to enabling legislation and over the Association's Constitution.

Key Issues & Findings

Validity of 404 signatures used as proxy votes

Petitioner challenged the validity of proxy votes from 2004. Respondent argued the act pre-dated enabling legislation and the Constitution is not a planned community document.

Orders: Respondent's Request to Dismiss Petition granted; matter vacated.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. § 33-1802
A.R.S. §§ 41-2198
A.R.S. § 41-2198.01(B)
Ayala v. Hill, 136 Ariz. 88

Decision Documents

08F-H089008-BFS Decision – 206585.pdf

Uploaded 2026-01-25T15:23:50 (75.4 KB)

Briefing Doc – 08F-H089008-BFS

Administrative Law Decision: Leckey v. Dreamland Villa Community Club

Executive Summary

This briefing document summarizes the administrative decision in Case No. 08F-H089008-BFS, heard by the Arizona Office of Administrative Hearings. The dispute involved Petitioner Richard M. Leckey and Respondent Dreamland Villa Community Club regarding the validity of a 2004 vote that transitioned the Respondent from a voluntary club into a planned community.

The Administrative Law Judge (ALJ) dismissed the petition on jurisdictional grounds. The ruling established three critical points:

• Statutory Limitations: Administrative agencies possess only the powers granted by statute and lack common law or inherent powers.

• Non-Retroactivity: The enabling legislation providing for administrative hearings in planned community disputes (effective September 21, 2006) does not apply retroactively to acts occurring in 2004.

• Document Definition: A community’s “Constitution” does not qualify as a “planned community document” under A.R.S. § 33-1802, placing it outside the tribunal’s oversight.

Core Dispute and Allegations

The case originated from a January 2004 balloting process conducted by the Dreamland Villa Community Club. This vote resulted in the organization becoming a “planned community”; prior to this, it operated as a voluntary club.

The Petitioner’s Claims

The Petitioner challenged the validity of 404 signatures used during the 2004 balloting. While initially identified as proxy votes, the Petitioner later filed a “Correction of Testimony” clarifying that the signatures in question were counted as either regular or absentee ballots.

The Petitioner asserted that the Respondent violated specific internal governance documents:

• Constitution: Article V, Section 1.

• By-Laws: Article X, Sections 1 and 3; Article XI, Sections 3 and 3(c).

The Discovery Argument

The Petitioner argued that although the act in question occurred in January 2004, he did not become aware of the alleged violations until November 2007. This date of discovery fell after the effective date of the legislation (September 21, 2006) that authorized the Office of Administrative Hearings to oversee such matters.

Jurisdictional and Statutory Framework

The decision heavily emphasized the limited scope of administrative tribunals compared to general courts.

Limits of Agency Power

Citing Ayala v. Hill, the ALJ noted that the Office of Administrative Hearings has no common law or inherent powers. Its jurisdiction is strictly confined to:

1. Determining if an association violated provisions of “planned community documents” (defined as Articles of Incorporation, Bylaws, or Covenants, Conditions and Restrictions [CC&Rs]).

2. Determining if an association violated A.R.S. Title 33, Chapters 9 or 16.

Definition of Planned Community Documents

A primary point of contention was whether the Respondent’s Constitution fell under the tribunal’s jurisdiction. The ALJ concluded that the Constitution is not a planned community document as defined by A.R.S. § 33-1802. Consequently, the tribunal lacked the authority to address any alleged violations of that specific document.

Legal Analysis and Findings

The Respondent moved for dismissal based on the timing of the events and the nature of the documents involved. The ALJ’s analysis focused on the following factors:

Analysis of Enabling Legislation

The legislation enabling the Office of Administrative Hearings to resolve planned community disputes became effective on September 21, 2006. The ALJ found that:

• The legislation does not provide for retroactive effect.

• A cause of action must come into existence or continue to exist after the effective date of the legislation to be heard.

• The 2004 balloting was a discrete act that occurred prior to the enabling legislation.

Determination on “Ongoing” Disputes

The ALJ rejected the notion that the discovery of the act in 2007 brought the matter within the tribunal’s reach. The ruling stated that the matter did not present an “ongoing or current dispute within the spirit and intent of the enabling legislation.” Because the act itself was pre-legislative, the ALJ determined it did not give rise to a cause of action that could be brought before the tribunal.

Final Decision and Order

The Administrative Law Judge concluded that because the central issue pertained to an act occurring before the effective date of the enabling legislation, no cause of action existed for the tribunal to adjudicate.

Key Rulings:

• Dismissal of By-Law Claims: It was unnecessary to address the alleged violations of the By-Laws because no valid cause of action existed under the non-retroactive statute.

• Dismissal of Constitutional Claims: The tribunal lacked jurisdiction over the Respondent’s Constitution. Even if the Constitution were a planned community document, the claim would still fail due to the timing of the act.

Final Order: The Respondent’s Request to Dismiss Petition was granted, and the matter was vacated from the docket. Per A.R.S. § 41.2198.04(A), the order represents the final administrative decision and is not subject to requests for rehearing.

Study Guide – 08F-H089008-BFS

Administrative Law Study Guide: Leckey v. Dreamland Villa Community Club

This study guide examines the administrative law decision in the matter of Richard M. Leckey v. Dreamland Villa Community Club (No. 08F-H089008-BFS). It focuses on issues of jurisdiction, the retroactivity of legislation, and the definition of planned community documents.

——————————————————————————–

Part I: 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 issue Richard M. Leckey raised during the pre-hearing conference?

2. How did the legal status of the Dreamland Villa Community Club change as a result of the January 2004 balloting?

3. Which specific internal documents did the Petitioner allege the Respondent had violated?

4. What was the Respondent’s primary argument regarding the timing of the alleged violations?

5. How did the Petitioner attempt to justify the timing of his petition despite the event occurring in 2004?

6. According to the decision, what defines the limits of the power and duties of the Office of Administrative Hearings?

7. What is the specific jurisdiction of the Office of Administrative Hearings regarding planned community disputes?

8. Why did the Administrative Law Judge (ALJ) refuse to address the alleged violations of the Respondent’s Constitution?

9. What was the ALJ’s conclusion regarding the retroactivity of the enabling legislation?

10. What was the final outcome of the case and what is the status of the ruling?

——————————————————————————–

Part II: Answer Key

1. What was the central issue Richard M. Leckey raised during the pre-hearing conference? The Petitioner sought to challenge the validity of 404 signatures used as ballots during a January 2004 vote. These signatures, which were counted as either regular or absentee ballots, were the basis for the Respondent becoming a planned community.

2. How did the legal status of the Dreamland Villa Community Club change as a result of the January 2004 balloting? Prior to the January 2004 action, the Dreamland Villa Community Club operated as a voluntary club. Following the balloting and the counting of the contested signatures, the organization transitioned into a “planned community.”

3. Which specific internal documents did the Petitioner allege the Respondent had violated? The Petitioner asserted that the Respondent violated Article V, Section 1 of its Constitution. Additionally, he alleged violations of Article X (Sections 1 and 3) and Article XI (Sections 3 and 3(c)) of the Respondent’s By-Laws.

4. What was the Respondent’s primary argument regarding the timing of the alleged violations? The Respondent argued that the act complained of occurred in 2004, which predated the September 21, 2006, effective date of the enabling legislation. Consequently, they maintained that no violation could be found because the law providing for administrative hearings was not yet in effect.

5. How did the Petitioner attempt to justify the timing of his petition despite the event occurring in 2004? The Petitioner argued that while the act itself occurred in early 2004, he did not become aware of the alleged misconduct until November 2007. He contended that because his discovery of the act happened after the September 2006 effective date, the petition should be considered valid.

6. According to the decision, what defines the limits of the power and duties of the Office of Administrative Hearings? The powers and duties of administrative agencies like the Office of Administrative Hearings are strictly limited to those granted by statute. They do not possess any common law or inherent powers beyond what is specifically authorized by the legislature.

7. What is the specific jurisdiction of the Office of Administrative Hearings regarding planned community disputes? The Office has limited jurisdiction to determine only if an association violated provisions of its planned community documents (such as Articles of Incorporation, Bylaws, or CC&Rs) or A.R.S. Title 33, Chapters 9 or 16. Jurisdiction is explicitly defined under A.R.S. §§ 41-2198 and 41-2198.01(B).

8. Why did the Administrative Law Judge (ALJ) refuse to address the alleged violations of the Respondent’s Constitution? The ALJ concluded that the Respondent’s Constitution does not qualify as a “planned community document” under the definition provided in A.R.S. § 33-1802. Therefore, the tribunal lacked the legal jurisdiction to determine whether a violation of that specific document had occurred.

9. What was the ALJ’s conclusion regarding the retroactivity of the enabling legislation? The ALJ determined that the enabling legislation does not provide for any retroactive effect and only applies to causes of action that come into existence after the effective date. Because the disputed signatures were from 2004, the matter did not represent a current or ongoing dispute within the spirit of the law.

10. What was the final outcome of the case and what is the status of the ruling? The ALJ granted the Respondent’s request to dismiss the petition and vacated the matter from the OAH docket. Under A.R.S. § 41.2198.04(A), this order constitutes the final administrative decision and is not subject to requests for rehearing.

——————————————————————————–

Part III: Essay Questions

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

1. Statutory Authority and Administrative Jurisdictions: Discuss the significance of the ruling that administrative agencies lack “common law or inherent powers.” How does this principle protect or limit the rights of parties like Leckey?

2. The Principle of Non-Retroactivity: Analyze the ALJ’s reasoning for dismissing the petition based on the effective date of September 21, 2006. Why is the date of the “act” prioritized over the Petitioner’s “date of discovery”?

3. Defining Planned Community Documents: Examine the distinction the ALJ made between a “Constitution” and “planned community documents” under A.R.S. § 33-1802. What are the legal implications for an organization when its primary governing document is ruled outside the jurisdiction of a specialized administrative tribunal?

4. Procedural Dismissal vs. Merit Review: The ALJ decided it was “unnecessary to address the alleged violations” of the By-Laws because no cause of action existed. Evaluate the efficiency and fairness of dismissing a case on jurisdictional grounds before examining the actual merits of the alleged violations.

5. The Transition from Voluntary Club to Planned Community: Based on the context of the case, discuss the legal complexities involved when a voluntary organization seeks to become a regulated planned community, specifically regarding the validity of the balloting process.

——————————————————————————–

Part IV: Glossary of Key Terms

Definition

A.R.S. § 33-1802

The specific Arizona Revised Statute that defines what constitutes a “planned community document.”

Administrative Law Judge (ALJ)

A presiding officer who conducts hearings and issues decisions for administrative agencies, in this case, the Office of Administrative Hearings.

Cause of Action

A set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party.

Common Law Powers

Authority derived from judicial decisions and custom rather than from specific statutes; the OAH was ruled not to possess these.

Enabling Legislation

A statute that grants new authority to a government official or agency, such as the law allowing administrative hearings for planned communities effective Sept. 21, 2006.

Jurisdiction

The official power of a legal body to make legal decisions and judgments regarding specific types of cases or documents.

Petitioner

The party who presents a petition to a court or administrative body (Richard M. Leckey in this matter).

Planned Community Documents

Specific legal filings including Articles of Incorporation, Bylaws, and Covenants, Conditions and Restrictions (CC&Rs) that govern a planned community.

Proxy Vote

A ballot cast by one person on behalf of another; in this case, the Petitioner initially challenged signatures used as proxy votes.

Respondent

The party against whom a petition is filed and who responds to the allegations (Dreamland Villa Community Club in this matter).

Retroactive Effect

The application of a law to events that took place before the law was passed; the ALJ ruled the enabling legislation had no such effect.

Voluntary Club

The legal status of the Respondent prior to the 2004 vote, distinguishing it from a mandated planned community.

Blog Post – 08F-H089008-BFS

Why the Past Stays in the Past: 4 Surprising Lessons from the Dreamland Villa Legal Battle

The 404-Signature Dispute

In the matter of Leckey v. Dreamland Villa Community Club, homeowner Richard M. Leckey challenged the very foundation of his community’s status. The conflict centered on a 2004 vote that transformed Dreamland Villa from a “voluntary club” into a “planned community,” a shift that fundamentally altered the rights and obligations of every resident.

Leckey targeted 404 signatures used during that January 2004 balloting, which he initially described as proxy votes before clarifying in a “Correction of Testimony” that they were counted as regular or absentee ballots. This case highlights a frustrating reality: what happens when you discover a potential injustice years after the ink has dried on the deal?

The great irony of the Leckey case is that the truth regarding those 404 signatures was never actually investigated. Because of rigid jurisdictional boundaries, the court never reached the “what” of the alleged fraud; it was entirely defeated by the “where” and the “when.”

The “Non-Retroactive” Barrier

The Administrative Law Judge (ALJ) dismissed the case primarily because the enabling legislation allowing the Office of Administrative Hearings (OAH) to oversee such disputes did not take effect until September 21, 2006. Since the controversial vote occurred in 2004, the tribunal determined it simply lacked the authority to look backward in time.

This serves as a critical lesson for homeowners: when new laws are passed to provide protections or oversight, they rarely reach back to heal old wounds. In the eyes of the administrative court, the timeline is a hard wall that cannot be breached, regardless of the merit of the underlying claim.

The Myth of “Inherent Power”

Homeowners often walk into a hearing assuming that any judge has the “inherent power” to right a clear wrong. However, as an “Information Architect” of HOA law must warn, the OAH is not a general common law court; it is a creature of statute with a very narrow, pre-defined “menu” of powers.

Unlike a Superior Court judge, an Administrative Law Judge cannot exercise “broad justice” or create equitable remedies unless the legislature specifically wrote that power into the law. If the statute doesn’t explicitly say the judge can do it, the judge cannot do it.

The Structural Loophole of Document Labels

A major component of Leckey’s challenge involved the “Constitution” of the Dreamland Villa Community Club. Here, the court revealed a structural loophole: the OAH’s jurisdiction is strictly limited by A.R.S. §§ 41-2198 and 41-2198.01(B) to specific “planned community documents.”

In Arizona, this “menu” of reviewable documents typically includes Articles of Incorporation, Bylaws, and CC&Rs. Because the governing document in question was labeled a “Constitution,” the ALJ concluded it was not a planned community document under A.R.S. § 33-1802, leaving the court without the power to even address whether its provisions were violated.

For the homeowner, this is a vital architectural warning: the label of a document can determine your level of legal protection. A community governed by a “Constitution” rather than traditional “Bylaws” may inadvertently—or intentionally—bypass the administrative oversight meant to protect homeowners.

The Discovery Rule vs. The Statutory Clock

Leckey argued that while the signatures were collected in 2004, he did not discover the alleged issue until November 2007—well after the 2006 enabling legislation was in place. He believed this “discovery” should bring his case within the court’s timeframe.

The ALJ rejected this argument, taking a hardline stance on the statutory clock. The court ruled that for a dispute to be heard, the underlying act must be “ongoing or current within the spirit and intent of the enabling legislation,” rather than a completed act from the past that was only recently discovered.

This highlights the high cost of delayed discovery in administrative law. The court prioritizes the finality of the effective date over the homeowner’s personal timeline of awareness, effectively locking the door on historical grievances.

A Final Thought for Homeowners

The dismissal of the Dreamland Villa case serves as a stark reminder that in the world of HOA litigation, jurisdiction and document structure are often more important than the facts of the grievance. If your community is undergoing a transition, “real-time” vigilance is your only true protection; once the statutory window closes, it rarely opens again.

As more voluntary clubs transition into formal planned communities, we must ask: how can homeowners ensure transparency at the moment of change? If the courtroom doors are locked to the past, the only way to protect the future of a community is to get the “architecture” of the governing documents right the first time.

Case Participants

Petitioner Side

Richard M. Leckey (Petitioner)

Respondent Side

Jeffrey B. Corben (attorney)
Maxwell & Morgan, P.C.

Neutral Parties

Lewis D. Kowal (ALJ)
Office of Administrative Hearings
Robert Barger (Director)
Department of Fire, Building and Life Safety
Listed in mailing distribution
Debra Blake (Agency Staff)
Department of Fire, Building and Life Safety
Listed in mailing distribution

Bittner, Elmer -v- Greenfield Glen Homeowners Association

Posted on September 1, 2008 by [email protected]

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.

——————————————————————————–

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.

——————————————————————————–

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.

——————————————————————————–

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.

——————————————————————————–

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.

——————————————————————————–

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.

——————————————————————————–

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.

——————————————————————————–

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.

——————————————————————————–

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.

——————————————————————————–

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

Sawyer, Mike vs. Terramar Homeowners Association

Posted on June 13, 2008 by [email protected]

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?

——————————————————————————–

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.

——————————————————————————–

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?

——————————————————————————–

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