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
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: 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.
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
