By return e-mail, please advise the disposition of your request for an Attorney General Opinion re whether Title 33 or Title 10 is controlling with respect to Planned Communities and Condominiums.
The multiple constitutional challenges by select association lawyers continues in LC2007-000588, LC2007-000598 and LC2008-000043, ".DFBLS's adjudication is an unconstitutional exercise of judicial power; order the DFBLS no longer accept petitions for hearings from complaining parties and shall no longer exercise any adjudicative power over community associations or the members thereof...." and more.
Woodlands II on The Creek, its board of directors and association members:
Too often the "judgment" of a board of directors, one or more individual board members and/or the board's lawyers proves to be sorely misplaced and, subsequently, painful for the association members largely oblivious, by design, to the board's conduct.
The record of CV1997-000435, Terravita Community Association v. Adolph ("Doc") H. and Joy G. Wussow, filed on January 1, 1997 and "resolved [Stipulation/Judgment and Order]" was a national embarrassment (local, regional and national television, talk radio, newspapers, magazines, Congressional Record, legal commentators and more) during its pendency and will forever remain a continuing embarrassment for Terravita.
In addition to being ill-advised, it is not nice to piss on the American flag, motherhood, apple pie or abuse one's misunderstood "powers and duties" by pissing in the face of any of your members ("Ekmark threatened to sue Wussow for defamation for riling up the homeowners with a letter that had gone to every homeowner pleading his case."). See Tim Maier's December 7, 1998 'Insight on the News' for a fractional sense of the inevitable and lasting consequences of a board's abusive conduct.
"Be careful what you wish for, lest it come true (and make the situation worse)," Anonymous, "The Monkey's Paw" by W.W. Jacobs, 1902
Subject: Re: [mail] Voting Delegates / SB1494 / TCA, Inc.
Hey Unhappy Man, Spread Your Poison. Judy Nottingham
-----Original Message----- From: william brown <wmbs-pp@...> To: mail <mail@...> Sent: Thu, 17 Apr 2008 2:29 pm Subject: [mail] Voting Delegates / SB1494 / TCA, Inc.
Voting Delegates/Arizona’s 48th Legislature (Second Regular Session) /SB1494 homeowner’s associations; proxies; nonprofit corporations/Terravita Community Association, Inc.
On May 18, 2007 I exercised my right pursuant to A.R.S. § 41-2198 et seq. (HB2824 [hearings], 47th Legislature/2nd Regular Session, sponsored by Rep. Farnsworth and yourself) to petition the DBFLS re a contested planned community matter. Did the association violate A.R.S. § 33-1812 proxies; absentee ballots, by its May 15, 2007 election of three directors to the TCA board.
On September 6, 2007 the Honorable Michael K. Carroll, Administrative Law Judge, published his reasoned and thoughtful decision (See Carroll Decision and Order 9-6-7attached) detailing his findings of fact and conclusions of law that resoundingly refuted and ridiculed the legal arguments of TCA and its lawyers that voting delegates are not proxies ("Respondent's attempt to distinguish proxies from delegate voting…the irony of Respondent's claim…it is difficult to understand Respondent's argument…Respondent's argument suggest - surely the Legislature did not intend such a result…Respondent also argues an unconstitutional impairment of contractual rights - how could those rights and interests be compromised…Respondent's attempt to differentiate and more").
All I needed to know to make me decide NOT to vote was that by voting YES I would be agreeing to a 25% quorum. There is no place on the "written consent" form to object to that. My guess is that most people who voted, with the exception of those who might benefit from a 25% quorum, have not even bothered to read or understand the documents involved. At the very least, the quorum should be the same as the Country Club's. If 33-1/3% apparently works for them, why did TCA decide to be different and go to 25%? There should have been an opportunity to debate this very important item. Besides, as has been pointed out,
an illegally elected Board of now only 5 remaining Directors, has no business revising any existing By-laws and CC&Rs. Here we go again....possibly back to court......the lawyers get richer and we get bankrupt. (Emphasis added)
[One or more names redacted (deleted) to protect the innocent in Terravita from their corporations, boards, managers, lawyers and individual member's mean spiritedness, vindictiveness, retaliation and false reporting.]
"Though it pains me to even acknowledge it, WMB's latest diatribe is so personal, and so distorts some public and private writings I recently made, that I can't resist responding." (Mamahead, 11/04/07 @ 10:00 PM, OTT) (Emphasis added)
Most of Terravita's old curmudgeons would find it difficult, if not impossible, to remember what they had for lunch yesterday let alone remember exactly (correctly) what TCA sent to the members two years ago...
Well, we just got back, (deleted), so I'm not sure what the train wreck is that you mention. If it's the Voting Delegate issue, what I remember is that the TCA board sent out a proposed CCR amendment to all of us two years ago providing for one home, one vote. It was stridently opposed on these pages and elsewhere by both Brown and Ryley, the TCA backed down and withdrew it. Then it was kicked around for these many months since until Brown attacked our plan in court on the grounds it didn't provide for one home, one vote!
Now, the Board is trying again to get it right and Ryley is leading the charge against them. How much hypocrisy is too much?
Yes, the board muddled on it for too long, but that's the way volunteer democracy too often works. And the CCMC is becoming less and less competent as time passes, in my view. But at least they are trying to do good things, albeit not so effectively. If there had been any really strong support from the Community for the change it would have been done long ago. Unfortunately most people simply don't care.
But these other guys, dear (deleted), are dead set on doing mischief and harm to the community. Why you and other good people are sympathetic, or at least tolerant, toward these guys is beyond me. I'll never understand it.
Allen (Mamahead 11/01/07 @ 10:06 PM)
A few comments to your e-mail..... I have been a Voting Delegate or Alternate for many years, and I know that they "requested" all Voting Delegates to pick up copies of the amended CC&Rs and By-Laws two different times since the Arizona Statute prohibiting proxy voting became law in August 2005. Meetings of those Delegates & Alternates were twice scheduled and twice cancelled, because TCA claimed that they did not get an adequate response from tose delegates. I personally think that the law is the law is the law...and the law trumps CC&Rs and ByLaws and should have been complied with in the 2006 & 2007 TCA elections. However, apparently the Ekmark law firm felt that proxy voting was not the same as Voting Delegates. Actually, the OAH Judge recently said that it was worse than proxy voting (and I absolutely agree) ...and therefore his decision in favor of the "mischievous" Brown...who, after 2 years of waiting in the wings to observe what action TCA would take to comply with the Statute, decided to ask a judge to decide who was right...the Arizona Legislature or Ekmark. Brown won and we had to pay his court costs of $550....(.the check has already been mailed to him). Now, in all their questionable wisdom, TCA is appealing this to the Superior Court. Read John Ryley's "mischievous" posting on OTT detailing what occurred at the Oct. Board meeting. Two other attorneys present in the audience (Terravita residents) did not think we would win the appeal. One of them, I understand , actually believed that this time Brown was correct about the issue, although it was unfortunate that he felt it necessary to take legal action. I suppose if he or someone else had not sued, we could have kept defying the law til death us do part. After all, it was just a little HOA law....nothing so dramatic as committing a felony etc.......But ignoring it for 2 years has, in my mind, created a train wreck.
As for what you may recall of something that was sent out over 2 years ago, if TCA backed down and withdrew it most likely was because their attorneys advised them that the document was legally unsustainable if challenged.
With regard to tolerating the guys you speak of, some of us may continue on occasion to be advocates because they are both very intelligent and always speak the truth. Whether it is the truth you wish to believe to be the truth, may be another matter entirely. One other thing.... I am sure both gentlemen act quite independently from one another, and if they seem to often choose the same battle, it doesn't mean that they are plotting a mutual strategy to "harm the community" or do "mischief". For example, as to Delegates.... Ryley and others believe they can serve a worthwhile function other than to elect Board members. Brown apparently is totally opposed to Delegates in any capacity.
Ryley views things from his lawyer's perspective...he is a decent, honest man who wants to share his views with those who choose to listen to his side of the latest community issue. I will not defend Brown.....he would not want anyone to defend him...because I don't believe he cares what anyone else thinks of him since , in his own mind, he is absolutely certain that he is right.
Our little "volunteer democracy" has different viewpoints just as those found on city, state and national political levels. We are all entitled to voice our opinions...but in Terravita many are afraid to...others feel it is futile....and, sadly, I find myself falling into the latter category.
P.S. Ryley's website is www.johnryley.com. You might find it of interest.
(John/Jane Doe, 11/02/07 @ 8:17 PM)
Whether you support or oppose any role for Terravita's Voting Delegates, you may agree that any proposed amendments to Terravita governing documents (voting delegates or other provisions) sponsored by the TCA board would best serve the community's understanding, agreement and/or opposition to the proposed amendments if they were conceived in the light of day following a full, open, vigorous discussion and debate permitting the affected members an opportunity to review, consider, comment, challenge and/or negotiate the proposed amendments.
Instead, the members receive the board's oafish notice and empty plea, "PLEASE VOTE.Your vote is needed.ENCOURAGE YOUR NEIGHBORS TO VOTE," on October 30, 2007 before a scintilla of information "relevant" to the members' vote is received.
"The voting delegate system should be maintained under the CC&Rs, however, to allow them to comment upon any amendments, and to make their recommendations known to the board and the community before the final proposed amendments are sent out to all of the residents for voting by absentee ballot. I am in favor of retaining the neighborhood delegate system under the CC&Rs as a check upon the TCA board for certain issues as is currently provided under the CC&Rs. I am therefore not in favor of a wholesale deletion of the "voting delegate system" wherever it appears in the CC&Rs, as has been proposed by the Ekmark firm, thereby given the TCA board (and the Ekmark firm) unfettered discretion to do whatever they want. Secret executive sessions, resolutions passed without open meetings, lawsuits initiated without open meetings, voting delegate approval, or communications with the residents, public records as to legal fees billed and expended by TCA or AIG in connection with the voting delegate litigation, not disclosed after properly requested, based on allegations that they are protected under the "pending litigation" exception to the discovery of the public records of TCA, etc. What is TCA hiding here? In addition, the "pending litigation" exception does not apply.
We should not be stampeded into amending the CC&Rs without considerable discussion and debate from the community at public meetings, and recommendations from the voting delegates. This process should be deliberate and should take time. There is no need to expedite this process with respect to our governing document.
We should take our time to carefully study such proposed amendments on a community-wide basis with public meetings and open forum discussions. We should hold new elections for the 2006 and 2007 board seats, removing all legal issues by ratification of past board actions, and move forward, eliminating unnecessary and costly litigation. Voting on proposed amendments to determine whether TCA will retain its illegal voting delegate system under its CC&Rs is ridiculous. We must comply with the law.We have no choice. We can do that now." (John Ryley, 10/25/07, OTT) [Emphasis added]
WMB (WMB, 11/03/03 @ 8:34 AM, OTT and others)
Long before there was NRGM issue, Brown campaigned for years with the property and income tax authorities to raise Terravita taxes for all of us, with some success, by the way, until we were able to reverse him on appeal, at considerable expense. Ryley may be a decent man, but I too am a lawyer and I read many of his treatises to be twisted renditions of the facts and law to serve his cause at the time. Neither one has ever, ever had one constructive word to say about any of our boards, directors or community management, or others that try to do good things for the community, that I have ever read.
It continues to amaze me that people of good will can view the same conduct and come out with such extremely different judgments. I'll never understand it. But I respect it.
And let's see, which board or management group was it that cut you off from OTT access? Hmmmm.
Allen (Mamahead 11/03/07 @ 8:41 AM)
".I too am a lawyer.until we were able to reverse him on appeal, at considerable expense.boards, directors or community management, or others that try to do good things for the community.which board or management group was it that cut you off from OTT access?" Mamahead 11/03/07
".I too am a lawyer." It would be charitable not to comment about some lawyers.
".we were able to reverse him on appeal." We (who?).reverse him (whom?). Exactly who were/are the parties to the TCC's tax litigation? Ask the real lawyers.
".try to do good things for the community." Same sad song from similarly disposed IYPs: "This is a great community and deserves the best leadership available. Please, do not criticize Board members, they are supplying their time and talent to improve the community. Support the Boards, and if necessary voice your opinion in a sane and civil manner." Prettyman 02/26/06
".cut you off from OTT access?"
Smile Networks recently arranged with AOL to be notified whenever one of their customers clicks on the "This message is Spam" button for an email received from a Smile hosted address.
Below is a copy of the report we received. The complainant is not always readily apparent in the message; in fact, at times it may not be discernable.
We generally recommend that you cease sending messages to complainants. Obviously, use your own good discretion, however bear in mind that if repeated complaints are registered by AOL, they may block the sender's email, or even all mail coming from Smile Networks, which could have a significant effect upon your email service.
The observation, 'Is there any wonder why many find some lawyers beneath contempt,' was not posted on OurTattlerToo but rather shared with select friends in Terravita (14) and friends/associates outside Terravita (23). At the time of the observation, the author firmly believed the statement reflected the sad truth that some lawyers are beneath contempt, a truth that was absolutely confirmed following Mamahead@...'s open post on OTT. Mamahead@...'s self-flagellation on OurTattlerToo seems to deny his very prayer, "Give me a break!"
While it may be true the author of the January 12, 2005 message on OurTattlerToo, 'Proposed Sale of Non-resident Golf Memberships - TCA,' was unknown or whose name was withheld from Subscribers to OTT (includes Mamahead@...), it is not true that the message was an "anonymous 'legal' screed" as many in Terravita and outside Terravita, to included Messrs. Thomas, Knopf, Fries, Russell, Kelly, Schweikert, Joslin and other second readers, know the author and recognize his legal scholarship as opposed to Mamahead@...' belief that the message is a long monotonous harangue. Simply compare the substance and scholarship of the 01/12/05 'Proposed Sale' message with, "They and the community must act only after having the advice of retained and competent counsel on what powers and authority they have, together with the procedures to follow in order to effect them."
The pejorative use of "anonymous" and/or unwarranted ad hominem attack seem to suit Mamahead@... (".absurd observation.distorted view.'contemptible'.unfair or unreasonable") and those of his ilk, to include MCHAZIN@... ('obnoxious"), Bjon818@... (It would be charitable not to comment.) and others, when the observations and/or "opinions" of others dare to disagree with Mamahead@... and those of his ilk.
Contrary to Mamahead@...'s mistaken belief re the golf proposal, some in Terravita are not terrified by the recommendations of the boards of directors of TGC or TCC and/or the silence of the TCA board, however do understand why ".it (sic) is beyond me [01/12/05 OTT, Mamahead@...]."
Subject: Fwd: Amending TCA Stuff....Doing Mischief or Harm
(WMB, 11/03/07 @ 11:11 AM, TCA Members (not Mamahead) and others)
TCA Board
TVCC Board
Fellow Residents, I am uncomfortable voting on the proposed amendments to the Association's Governing Documents (CC&R's and Bylaws) which, according to the email "among other things, would remove the Voting Delegate system and allow for a one house/one vote system".
Being concerned, I got the package of revised CC&R's and it was about 3 1/2 inch thick, small print front and back of documents, much with lines through it to show what's being changed, etc. Unfortunately, it was no help.
I know we have a complex set of rules and bylaws that we are trying to simplify but I'm not confident these changes will cause no harm and simply make our clubs work better.
I would feel much more comfortable if the board(s) got together and wrote up something to explain this as clearly as they can manage and circulate their summaries among themselves until they reach a concensus. Creating this summary should cause the boards to hash out their myriad interpretations of how changes will improve things. That "consensus summary" which most agree describes the proposed changes and their benefits (and the drawbacks) is what I want to see circulated to residents before the vote. Giving residents their honest appraisal, including potential risks, will give residents confidence concerning their vote.
So to the TCA and Country Club boards, is there any chance this could be done?
Sincerely,
Sue E. Dean(11/03/07 @ 1:05 PM, OTT) (Emphasis added)
33945 N. 66th Way Scottsdale, AZ85266 deanks@... (489) 595-8113
Extremely unlikely, in my view, but it is reasonable to ask the TCA Board for a simple, understandable summary of the changes.
Allen Head (Mamahead, 11/03/07 @ 10:20 PM to Sue Dean and OTT) (Emphasis added)
While reasonable, why should it be "extremely unlikely" that the TCA board (Ekmark) provide the members an understandable summary of the proposed changes before asking the members to vote?
Would Mamahead's observation re the TCA board comport with his lament about others, "...never (sic) had a constructive word to say about any of our boards, directors or community management, or others that try to do good things for the community...," or do some lawyers simply not give a damn about what the boards, directors, managers and others (includes lawyers) do or not do in Terravita.
"...the Board is trying again to get it right ("If it's the Voting Delegate issue, what I remember is that the TCA board sent out a proposed CCR amendment to all of us two years ago providing for one home, one vote.") and Ryley is leading the charge against them. How much hypocrisy is too much?
Yes, the board muddled on it for too long, but that's the way volunteer democracy too often works. And the CCMC is becoming less and less competent as time passes, in my view. But at least they are trying to do good things, albeit not so effectively. If there had been any really strong support from the Community for the change it would have been done long ago. Unfortunately most people simply don't care.
But these other guys...are dead set on doing mischief and harm to the community. Why you and other good people are sympathetic, or at least tolerant, toward these guys is beyond me. I'll never understand it." (Mamahead, 11/01/07)(Emphasis added)
"It continues to amaze me that people of good will can view the same conduct and come out with such extremely different judgments. I'll never understand it. But I respect it. I too am a lawyer." (Mamahead, 11/03/07)
The advice some receive from those with Esq. as a suffix to their name may be less valuable than a Starbucks' Grande Carmel Macchiato ($3.70 plus tax), particularly from those lawyers that, by their own admission, "never understand it."
In addition to making an effort to understand Terravita's issues (seemingly too complex for some but not for all) rather than simply whining "I'll never understand it," perhaps those possessing little understanding of the issues but who nonetheless seem compelled to regularly opine to others about those very issues should embrace the sagaciousness of 'What's good for the goose is good for the gander ("How much hypocrisy is too much?").'
WMB (WMB, 11/04/07 @ 10:08 AM, OTT and others)
Dear Mr. Brown:
I have appealed to you in the past sincerely requesting that you use a larger text font so that many more interested parties can read and understand your (usually extremely precise and detailed messages). For reasons unknown to me you have ignored my requests. This discussion is important to all homeowners and I think you can be a serious resource for all of us, but not if you continue using tiny print and excessive detail every time you write. I have resorted to not reading much more than a line or 2 of your messages for those reasons. I believe I am not the only one who doesn't read your messages but sometimes they are right on point and I just wish you would do this little thing for others like me. I would also ask that you think in terms of writing letters to a newspaper editor, keeping them as concise and to the point as possible so that it is comprehensible to the majority. If you try, I'm sure you don't have to "dumb down" your prose, just simplify and keep it short, making a real effort to refrain from sarcasm.Please, I am in earnest. (Emphasis added)
Sue Dean
On Sun, 4 Nov 2007 10:08:04 -0700 "william brown" <wmbs-pp@...> writes:
While reasonable, why should it be "extremely unlikely" that the TCA board (Ekmark) provide the members an understandable summary of the proposed changes before asking the members to vote?
Would Mamahead's observation re the TCA board comport with his lament about others, "...never (sic) had a constructive word to say about any of our boards, directors or community management, or others that try to do good things for the community...," or do some lawyers simply not give a damn about what the boards, directors, managers and others (includes lawyers) do or not do in Terravita.
"...the Board is trying again to get it right ("If it's the Voting Delegate issue, what I remember is that the TCA board sent out a proposed CCR amendment to all of us two years ago providing for one home, one vote.") and Ryley is leading the charge against them. How much hypocrisy is too much?
Yes, the board muddled on it for too long, but that's the way volunteer democracy too often works. And the CCMC is becoming less and less competent as time passes, in my view. But at least they are trying to do good things, albeit not so effectively. If there had been any really strong support from the Community for the change it would have been done long ago. Unfortunately most people simply don't care.
But these other guys...are dead set on doing mischief and harm to the community. Why you and other good people are sympathetic, or at least tolerant, toward these guys is beyond me. I'll never understand it." (Mamahead, 11/01/07) (Emphasis added)
"It continues to amaze me that people of good will can view the same conduct and come out with such extremely different judgments. I'll never understand it. But I respect it. I too am a lawyer." (Mamahead, 11/03/07)
The advice some receive from those with Esq. as a suffix to their name may be less valuable than a Starbucks' Grande Carmel Macchiato ($3.70 plus tax), particularly from those lawyers that, by their own admission, "never understand it."
In addition to making an effort to understand Terravita's issues (seemingly too complex for some but not for all) rather than simply whining "I'll never understand it," perhaps those possessing little understanding of the issues but who nonetheless seem compelled to regularly opine to others about those very issues should embrace the sagaciousness of 'What's good for the goose is good for the gander ("How much hypocrisy is too much?").'
WMB (WMB, 11/04/07 @ 10:08 PM to Sue Dean and others)
Though it pains me to even acknowledge it, WMB's latest diatribe is so personal, and so distorts some public and private writings I recently made, that I can't resist responding.
First of all, I did not say that it was extremely unlikely that the TCA would send out a summary of their proposed new changes to the CC&R's relating to the Voting Delegates issues. The fact is that not only do I think it's reasonable for them to do so, I'd be very surprised if they don't. What I was responding to was Sue Dean's question contained in her November 3rd posting entitled "THE VOTE" in which she asked a large number of recipients whether they thought it reasonable that allthree boards get together and issue a single, common set of governance rules applicable to all. That is what I said was extremely unlikely. Why WMB misreported that is beyond me.
Also from what I thought was a private communication that someone sent off to him, he strains to ridicule what I did not say by cutting and pasting parts and pieces of what I did say. He did some key omitting as well. The really weird thing is that he brings up subjects he would be better off not putting into play at all, despite his efforts to distort the sense of my remarks. For instance he does have it right that the TCA board some two years ago sent out a proposed CC&R's amendment changing the present Voting Delegates regime to reflect a 'one home, one vote' concept. And he intimates that I said John Ryley led the charge against them. Actually, I said that both Brown and Ryley led the charge against those changes at the time. And my point was that today they are both very critical of the Board for not having exactly those types of changes in place. Not only are they failing to disclose their original opposition the amendmentbut WMB himself is putting the whole onus on poor John Ryley alone. Talk about selective distortion!
He also tries to mock my puzzlement about why some good and decent citizens of our community seem to admire and support those who seek to cause mischief and harm to our common well-being: like working for years to cause the property and income taxes of all of Terravita to be substantially increased, with some success until reversed through considerable effort and legal expense to the community. Now why in the world would he want to open that door?
You ask a good question, Mr. Brown: "How much hypocrisy is too much?".
Allen Head (Mamahead, 11/04/07 @ 10:00 PM, OTT) (Emphasis added)
Those (curmudgeons and others in Terravita) with little to say of substantive value generally say little or simply whine, kvetch or wring their hands about that which they know little or understand less, and are unwilling to discover the truth for themselves.
Most of Terravita's old curmudgeons would find it difficult, if not impossible, to remember what they had for lunch yesterday let alone remember exactly (correctly) what TCA sent to the members two years ago (correctly, April 14, 2005 which was two years six and one-half months ago / "...what I remembers...two years ago..."), for what purpose the document was sent, what I may have written to the TCA board, its lawyers (Ekmark), subscribers to OTT, select legislators and others on April 26 and 27, 2005 about TCA's/Ekmark's proposal.
It is naďve in the extreme (even for an old curmudgeon) to believe (then, Apr-May '05 or today) that TCA "backed down and withdrew it" rather than know correctly that TCA's lawyers advised its client that the document (poorly crafted) and its proposal would prove to be legally unsustainable if challenged. It's the challenge (demonstrably not from the lemmings to the sea and lambs to the slaughter) that the boards, their managers and lawyers and the old curmudgeons fear most, otherwise they could do whatever they chose notwithstanding their governing documents and the law in Arizona. TFB!
WMB
p.s. If you are inclined, who might the IYP curmudgeon be?
Subject: Old curmudgeons have selective memories...followed by dementia.
Bill: Although I have recently decided to become a "Terravita lemming", ...I just received something from an old curmudgeon which my alter ego insists requires my response.. Is there even a particle of truth in this statement?: "....I'm not sure what the train wreck is that you mention. If it's the Voting Delegate issue, what I remember is that the TCA board sent out a proposed CCR amendment to all of us two years ago providing for one home, one vote. it was stridently opposed on these pages and elsewhere by brown and ryley, the TCA backed down and withdrew it. Then it was kicked around for many months until........." ????????
Your sincerity, " I have resorted to not reading much more than a line or 2 of your messages for those reasons (tiny print and excessive detail).ask you to think in terms of writing letters to a newspaper editor (which I regularly do without complaint from any papers' editors), keeping them as concise and to the point as possible so that it is comprehensive to the majority (will you be the arbiter of that which is concise, on point and comprehensible for the "majority" which, be assured, will exclude a broad spectrum of third-party readers [editors, lawyers, judges, legislators and their staffs, homeowner advocates and other non-Terravita readers] that have no difficulty recognizing, understanding and appreciating the substantive value of my messages).just simplify and keep it short (will you be the arbiter of those issues that are capable of being reduced [shortened] to the simplistic in furtherance of the majority's comprehension).make (sic) a real effort to refrain from sarcasm (which came first the chicken or the egg? - when you have read some of the e-mails sent directly to me {not unlike your message below}, you will know the answer to which came first the chicken or the egg) because, 'Please, I am in earnest,'" strikes me as transparently disingenuous.
For my edification, please tell me if you have you read (with comprehension) the hundreds (900++) of pages from the record of the hearing in Office of the Administrative Hearings, to include Ekmark's 734 page 'Respondent's Response To Petition'; listened to the audio recording of that hearing; read Judge Carroll's Decision and Orders; read TCA's (Ekmark's) complaint to the Superior Court; read the defendants' answers (WMB and Arizona Department of Fire, Building and Life Safety (Arizona Attorney General); read the 286 pages of TCA/Ekmark proposed changes to TCA's governing documents {includes 640 "Deletions," 531 "Insertions" and 1 "Move'} "provided" TCA's voting delegates on June 28, 2006 [Note: many of Terravita's voting delegates simply never pick-up the proposed changes (Exhibit 18, OAH hearing); what substantive information (factual and truthful - evidence admitted into the record) have you and the members of TCA received from TCA/Ekmark; what substantive information (factual and truthful - evidence admitted into the record) have you and the members of TCA received from WMB, whether you chose to read much more than a line or 2 of the record and, of the documents you may have bothered to have read, exactly which came from TCA/Ekmark and which from WMB?
In case you weren't blindcopied already.....at least there is someone who istrying to pay attention.
It is hard to imagine that 900 plus of us will read and comprehend...before giving or not giving "written consent". Have not yet received it....know I won't read it.....but , if I did, probably wouldn't comprehend it.... and therefore will not give "written consent." (Emphasis added)
Fellow Residents, I am uncomfortable voting on the proposed amendments to the Association's Governing Documents (CC&R's and Bylaws) which, according to the email "among other things, would remove the Voting Delegate system and allow for a one house/one vote system".
Being concerned, I got the package of revised CC&R's and it was about 3 1/2 inch thick, small print front and back of documents, much with lines through it to show what's being changed, etc. Unfortunately, it was no help.
I know we have a complex set of rules and bylaws that we are trying to simplify but I'm not confident these changes will cause no harm and simply make our clubs work better.
I would feel much more comfortable if the board(s) got togetherand wrote up something to explain this as clearly as theycan manage and circulate their summariesamong themselves until they reach a concensus.Creating this summary should cause the boardsto hash out their myriad interpretations of how changes will improve things. That "consensus summary" which most agree describes the proposed changes and their benefits (and the drawbacks) is what I want to see circulated to residents before the vote. Giving residents their honest appraisal, including potential risks, will give residents confidence concerning their vote.
So to the TCA and Country Club boards, is there any chance this could be done? (Emphasis added)
Sincerely,
Sue E. Dean 33945 N. 66th Way Scottsdale, AZ85266 deanks@... (489) 595-8113
WMB (WMB, 11/05/07 @ 7:29 AM to Sue Dean and others)
Has Mamahead, any member of the TCA board (none attended the hearing) or member of the community read (with comprehension) the hundreds (900++) of pages from the record of the hearing in Office of the Administrative Hearings, to include Ekmark's 734 page 'Respondent's Response To Petition'; listened to the audio recording of that hearing; read Judge Carroll's Decision and Orders; read TCA's (Ekmark's) complaint to the Superior Court; read the defendants' answers (WMB and Arizona Department of Fire, Building and Life Safety (Arizona Attorney General); read the 286 pages of TCA/Ekmark proposed changes to TCA's governing documents {includes 640 "Deletions," 531 "Insertions" and 1 "Move'} "provided" TCA's voting delegates on June 28, 2006 [Note: many of Terravita's voting delegates simply never pick-up the proposed changes (Exhibit 18, OAH hearing); what substantive information (factual and truthful - from the record) have you and the members of TCA received from TCA/Ekmark; what substantive information (factual and truthful - from the record) have you and the members of TCA received from WMB? Of the documents you may have read exactly which came from TCA/Ekmark and which came from WMB?
Serving Cave Creek, Carefree, North Scottsdale, North Phoenix, Rio Verde, Anthem, The Boulders, DesertMountain, Legend Trail, PinnaclePeak, Terravita, Tramonto, Tatum Ranch and Winfield
September 19-25, 2007
Holding an HOA board’s feet to the fire
Is it worth the board’s excoriation?
By Linda Bentley
SCOTTSDALE – Last year the legislature passed a law giving citizens who live in common interest developments governed by a homeowners association the ability to have their grievances heard by an administrative law judge through the Department of Fire Building and Life Safety (DFBS).
For a $550 filing fee, a homeowner can now bring a claim against their HOA for breach of the association’s governing documents or state statute.
If the homeowner prevails, statute requires the association reimburse the homeowner’s filing fee.
Previously, addressing the same types of grievances required filing a civil action in superior court, an infinitely more costly ordeal.
In 2005, the legislature passed HB 2154, prohibiting planned communities from votes allocated to a unit being cast by proxy.
The statute specifically states, “The association shall provide for votes to be cast in person and by absentee ballot ...” Sen. Chuck Gray, R-Dist. 19, a legislator at the time, who sponsored HB2154, said the intent of the bill was to offer a fair playing field for HOA voters because there had been serious misuse and, in some cases, even fraud.
Since the bill was signed into law, Terravita Community Association (TCA), a 1,380-home community in North Scottsdale, has held two elections using its delegate voting system, even though it was brought to the board’s attention that their method of voting was no longer permitted by law.
Terravita is divided into 22 distinct geographic neighborhoods, each of which elects a delegate and an alternate delegate to represent the members living in that neighborhood at elections for members of the board.
The voting delegates are entitled to cast a vote for each lot owned in that neighborhood as that voting delegate deemed appropriate in his/her sole discretion.
On May 15, 2007, TCA held an election for three board positions whereas 18 of the voting delegates from the 22 neighborhoods cast votes, electing three new board members, on behalf of 1,094 association members.
Following the May 15, 2007 election, William M. Brown, a Terravita homeowner filed a 31- word complaint with the DFBS alleging the three board members were elected pursuant to proxy, in violation of A.R.S. §33-1812.
Three TCA attorneys from Ekmark & Ekmark responded to Brown’s complaint with a 734- page answer, citing another party’s case number, with cut and paste arguments on a different subject, objections to exhibits Brown had not submitted and mailed all their pleadings to Brown with an incorrect Zip Code.
TCA President Louise Harkinson, one of only two witnesses lawfully subpoenaed and duly served, chose to ignore the subpoena.
While ordinarily ignoring a court-ordered subpoena could result in a warrant and arrest, holding Harkinson in contempt was apparently beyond the administrative law judge’s authority.
So, the hearing proceeded without Harkinson on Aug. 9 before Administrative Law Judge Michael K. Carroll.
Although the hearing was important enough for four Ekmark & Ekmark attorneys to be present, not one of TCA’s seven board members attended.
On Sept. 6, Carroll found in favor of Brown and ordered TCA to reimburse his $550 filing fee.
In his decision, Carroll stated there was no dispute regarding the facts in the case. And, the only issue raised was whether a ‘delegate’ form of representative government for a homeowners’ association violates the prohibition against the use of proxy voting.
The association argued voting delegates were not proxies, calling the use of proxies a form of “vote delivery,” and the use of delegates a form of “corporate governance.” Carroll stated, “By definition, ‘delegates’ are authorized to act as substitutes for a group of association members with respect to voting on association matters which require a vote of the members. That is a proxy.” “Notwithstanding respondent’s attempt to distinguish proxies from delegate voting, not even proxies create as much potential for abuse as the delegate voting system,” said Carroll, who pointed out TCA’s delegate voting system essentially disenfranchises all but 22 of TCA’s 1,380 members in board elections.
In a footnote, Carroll explains how TCA’s governing documents provide for the election for the members of the board by a majority vote of the voting delegates, whereas as few as 12 votes could potentially elect a board member and, in the May 15, 2007 board election, all but 18 of the 1,380 members were effectively disenfranchised.
The association then argued the individual association members were incapable of violating the prohibition against the use of proxies because the governing documents precludes their right to vote at all, and the governing documents prohibit voting delegates from voting by proxy.
Carroll said the association was suggesting “… the legislature’s prohibition against the use of proxies could be circumvented by simply creating a system that transfers the voting rights of 1,380 association members to a handful of delegates who are technically in compliance with statute because those delegate votes are not cast pursuant to a proxy,” adding, “Surely the legislature did not intend such a result when it enacted A.R.S. §33-1812A.” In conclusion, Carroll said, “Respondent’s attempt to differentiate the delegate voting system from the use of proxies is a classic ‘distinction without a difference.’ The voting delegates were ‘proxies’ and, as such, violate the clear language and intent of A.R.S. §33-1812A.” Although he didn’t order TCA to set aside the May 15 election, Carroll ordered TCA to abide by the law, which prohibits votes cast pursuant to a proxy.
On Sept. 14, the TCA Board of Directors sent out an E-mail to notify members the Sept. 25 TCA meeting was cancelled.
It read: “As you may or may not be aware, one of the owners within Terravita, Bill Brown, filed an action with the administrative law judge … challenging the method of voting for the Terravita Community Association as violating the law. The administrative law judge ordered that the association must ‘follow the law,’ with no explanation. The Terravita Community Association Board of Directors is going to appeal this decision to the superior court. Due to the many governance uncertainties that this decision has created, the board meeting scheduled for Sept. 25 has been canceled.” The notice is clearly evident that the TCA Board also violated the noticing requirement for the meeting it held at which the board unilaterally decided to appeal the decision, in violation of the state’s open meeting law requirements.
Since Carroll’s decision, Brown said he has been visited by the Scottsdale Police Department three times, stemming from allegations being made against him by Harkinson.
While much has been said and written following TCA’s Community‘September 25th Meeting Cancellation Notice’ e-mail broadcast, an unmitigated lie, and its subsequent posting on Terravita’s mailbox kiosks, know the following re TCA’s violation of A.R.S. §33-1812:
[Note: the file in No. 07F-HO67035-BFS / Case No. HO 06-7/035 is a public record available to any interested party.]
1) On May 15, 2007 TCA’s voting delegates (18) elected three members to the TCA board;
2) On May 18, 2007 WMB filed a thirty-one (31) word petition with the Department of Fire, Building and Life Safety allegation a violation of A.R.S. §33-1812;
3) On June 11, 2007 TCA’s lawyers (Lynn M. Krupnik, Quentin T. Phillips and Kristina L.
Pywowarczuk filed Respondent’s (TCA) Response to Petition, a seven hundred thirty-four (734) pleading;
4) On June 18, 2007 DFBLS referred the Petition for Hearing to the Office of Administrative Hearings and scheduled its hearing for July 26, 2007;
5) On June 21, 2007 Judge Carroll signed subpoenas commanding Ronald R. Roessler and Louise A. Harkinson “to attend a hearing in this matter” on July 26, 2007;
6) On June 22, 2007 Pywowarczuk, Krupnik and Phillips filed a Motion to Continue citing “scheduling conflicts;’
7) On June 25, 2007 the Honorable Michael K. Carroll issued his Order Denying Motion to Continue Hearing:
“The Motion is apparently based on the fact that ‘counsel will be out of town.’
Three attorneys, with the law firm of Ekmark & Ekmark, LLC, are listed in the Motion as representing Respondent. The Motion does not indicate that all the listed attorneys will be out of town on July 26, nor does it indicate that the appearance of all the listed attorneys is essential to adequately defend Respondent against Petitioner’s single claim that proxies were improperly used in the election of board members.
No good cause appearing, it is Ordered denying Respondent’s Motion to Continue.”
8) On June 26, 2007 (note, Judge Carroll did not wait for Petitioner’s response for obvious reasons…no good cause) Petitioner filed its Response to Respondent’s Motion to Continue citing TCA’s motion ‘lacks good cause and should be denied because it is groundless, not made in good faith, done solely for the purposes of delay and harassment and Petitioner’s witnesses, Ronald R. Roessler and Louise A. Harkinson, have been commanded pursuant to subpoena to appear on July 26, 2007.’
9) On June 26, 2007 TCA’s lawyers file Notice of Errata, “Our Response to Petition and Motion to Continue contained the incorrect case number. The case number as filed was HO 06-7/017 and the correct case number should be HO 06-7/035.” [Incorrect and/or misfiled pleadings would continue throughout the proceedings up to and after the hearing date.]
10) On June 28, 2007 TCA’s lawyers filed Respondent’s Request for Reconsideration of the Order Denying the Respondent’s Motion to Continue citing, in-part, “Lynn Krupnik, who will not be available on the scheduled hearing date, is essential to the defense of the Association…she has essential (and irreplaceable) knowledge of the Association’s delegate voting system…In fact, Ms. Krupnik, would handle this matter exclusively, but for the fact that she is a transactional and not a litigation attorney…these documents are quite detailed, well in excess of 100 pages in length…a system of voting which is both extremely complex and uncommon…the Petitioner does not have to provide a disclosure statement, identify any of his witnesses, or produce any evidence prior to the day of trial…the Association has no scheduled meetings of the members or voting delegates.” [Note: Pywowarczuk, in TCA’s motion for reconsideration and after citing the Rules of Civil Procedure, complained to the Judge in the hearing that TCA and its counsel had been “ambushed” by the Petitioner with respect to exhibits (disclosure) to be offered at trial, when, in-fact, had TCA’s counsel simply read the OHA’s Procedural Rules she would likely have not made such a caviler, reckless and false statement to Judge Carroll.]
11) On July 7, 2007 Petitioner filed its Response to Respondent’s Request for Reconsideration of the Order Denying the Respondent’s Motion to Continue citing, in-part, the following:
“Lynn graduated first in her class from Arizona State University College of Law, where she was named the ASU Alumni Association Outstanding Graduate. Ms. Krupnik also received the International Academy of Trial Lawyers Award (for exceptional trial advocacy skills in LawSchool Clinic)…”Lynn Krupnik, Attorney & Staff Profiles, Ekmark & Ekmark, LLC, “making communities better,” www.ekmarklaw.com(Emphasis added)
The combined essential knowledge and irreplaceable experience of Petitioner’s witnesses, Ronald R. Roessler and Louise A. Harkinson who have been active members of the association for over twenty-two years, nine plus years as officers of the board of directors including six years as board presidents, belies counsel’s representations to the Court that the association would be unfairly deprived of the expertise necessary to anyone’s understanding of the association’s “extremely complex and uncommon” system of voting because attorney Krupnik “…who is essential to the defense of the Association will not be available on the scheduled hearing date (sic).”
While the Terravita Community Association’s governing documents, to include the Declaration of Covenants, Conditions and Restrictions for Terravita and the By-Laws of Terravita Community Association, Inc. that are respectively fifty-five (55) and twenty-three (23) pages in length (contrary to counsel’s representations to the Court that the documents are“…well in excess of 100 pages in length”), relevant to the contested matter in HO 06-7/035, the May 15, 2007 election of three (3) board members in violation of Arizona Statute (A.R.S. 33-1812), may well be as uncommon as they are archaic and/or unlawful, they are not “extremely complex.” Further, the substantive pages relevant to the unlawful election are a fractional part of the actual seventy-eight (78) pages.
Again in contravention with counsel’s (Pywowarczuk) representation to the Court, “In addition, the Association has no scheduled meetings of the members or voting delegates,” the next scheduled TCA meeting is July the 24th, 2007 at 4:00 PM (see attached e-mail dated July 2, 2007 at 1:54 PM from Kevin Pollock, CMCA, CAAM, Community Manager, Terravita Community Association to William Brown, wmbs-pp@...).
Counsel’s motion lacks good cause and should be denied because it is groundless, is not made in good faith, misstates the facts and truth and is sought solely for the purposes of delay and harassment.
12) On July 10, 2007 TCA’s lawyers filed Respondent’s Motion for Summary Judgment, incorrectly docketed as a “Motion for Summary Suspension,” citing, in-part, “Respondent, Terravita Community Association, Inc., hereby moves for summary judgment on the sole claim in the Petition. No genuine issue of material fact exists. The Board members were properly elected at the Association’s May 15, 2007 election pursuant to the Association’s voting delegate system. At no time were proxies used as Petitioner alleges, Petitioner has offered absolutely no evidence to the contrary.” [Again, had TCA’s counsel simply read the OHA’s Procedural Rules she would likely have not made such a caviler, reckless and false statement to the Court.]
13) On July 12, 2007 Judge Carroll’s Minute Entry noticed the parties: “Petitioner filed a Response in opposition to an apparent request by Respondent to reconsider a denial of a motion to continue. This Office is not in receipt of a motion filed by Respondent asking for reconsideration of the previous order denying the request to continue the hearing date. A copy of that motion may be faxed to this Office at 602-542-9827.” [Error that needs correction, “errata”]
14) On July 16, 2007 Petitioner filed its Response to Respondent’s “Motion for Summary Suspension,” citing, in-part, the following:
As of this date, July 16, 2007, Petitioner has not received Respondent’s Motion for Summary Suspension (OAH docket 07/10/07 DOCREC “Document received Respondents Motion For Summary Suspension submitted by Kristina Pywowarczuk/lb”).
Petitioner incorporates its July 13, 2007 letter to Mr. Jeffrey A. Sanchez, Office of Administrative Hearings, advising OAH of the Respondent’s failure to properly serve Petitioner with the Motion for Summary Suspension and requesting OAH or the Court deny Respondent’s motion (see Sanchez letter attached).
Apparently Respondent and Ekmark & Ekmark have some continuing difficulty complying with OAH’s R2-19-106 and R2-19-108 (Judge Michael K. Carroll’s Minute Entry, July 12, 2007).
In addition to the Petitioner’s request the Court deny the Motion for Summary Suspension, Petitioner further requests the Court deny any subsequent filing corrected by Respondent’s counsel (Notice of Errata, June 26, 2007) as untimely filed in this matter pursuant to R2-19-106.
15) On July 16, 2007 Judge Carroll’s Minute Entry noticed the parties: “Respondent filed a Motion for Summary Judgment. Petitioner filed a response in opposition to that Motion. It is Ordered denying the Motion for Summary Judgment.
16) On July 16, 2007 Judge Carroll’s Order Granting Continuance noticed the parties, in-part: “Good cause appearing to warrant a short continuance, it is Ordered granting the motion to continue and resetting the hearing to August 9, 2007.”
17) On July 23, 2007 Judge Carroll signed subpoenas (second time subpoenas were issued in this matter) commanding Ronald R. Roessler and Louise A. Harkinson “to attend a hearing in this matter” on August 9, 2007. [Note: the subpoenas were served on Roessler and Harkinson on July 25, 2007.]
18) On July 25, 2007 TCA’s lawyers sent a letter to Judge Carroll stating in-part: “This firm has learned the President of the Board of Directors for the Association, Louise Harkinson, will be undergoing surgery on August 8, 2007 and will still be hospitalized on August 9, 2007. Assuming the Petitioner will chose to subpoena Ms. Harkinson (third time) for the new date (no new date was ever ordered by the court), Respondent wanted to provide this Court with the most up-to-date information regarding availability.” Enclosed in Pywowarczuk’s letter was Mayo Clinic Scottsdale’s ‘Authorization To Return To Work/School.’
19) On July 27, 2007 Judge Carroll’s Minute entry notice the parties, in-part:“The parties are advised that Petitioner contacted a person related to the undersigned administrative law judge and discussed some aspects of the case which relate to a recent motion to continue this matter filed by the attorneys for Respondent. In addition, Petitioner sent that person an e-mail regarding this matter, a copy of which is attached to this Order. Both parties are assured that this incident does not have any bearing on the ability of the undersigned judge to view the facts and law in this case fairly and impartially, and does not warrant a recusal.”
20) On July 30, 2007 Petitioner replied as follows:
Petitioner respectfully requests the Court conduct the hearing in this matter on its scheduled date, Thursday, August 9, 2007 at 9:00 a.m. Respondent and counsel’s purpose since June 22, 2007 has been to delay these proceedings (Motion to Continue, Motion to Reconsider and July 25, 2007 letter to the Court re Harkinson’s surgery). Respondent and counsel have not acted in good faith.
Counsel “...has learned …Harkinson will be undergoing surgery on August 8, 2007 and will be hospitalized on August 9, 2007…Respondent wanted to provide this Court with the most up-to-date information regarding availability (sic).” Pywowarczuk, July 25, 2007
In support of Petitioner’s request the hearing be held as scheduled on August 9, 2007, Petitioner incorporates its July 27, 2007 letter to the Court in reply to counsel’s letter of July 25, 2007 and further, upon information and belief, informs the Court of the following:
1) Harkinson - Mayo Clinic Scottsdale, MC# 4-989-125-2, August 8, 2007 surgery was scheduled n June 29, 2007;
2) Mayo’s plastic and reconstructive surgery protocol requires at least two visits with the patient’s surgeon and one or more visits with the surgical team staff to ensure the patient is comfortable with their decision (June 29, 2007) to have surgery;
3) Counsel’s Motion for Reconsideration was filed on June 28, 2007;
4) The Court’s Order Granting Continuance to August 9, 2007 was entered on July 16, 2007;
5) The surgical procedure scheduled for August 8, 2007 is elective cosmetic surgery;
6) Mayo Clinic Scottsdale offers its cosmetic surgery patients a “summer discount” during the slower summer surgical months (includes August);
7) Harkinson’s scheduled surgery qualifies for the Mayo discount;
8) On July 27, 2007 the office of Dr. Deborah S. Bash, Harkinson’s surgeon, confirmed a
post August 8-9, 2007 alternative surgery date was available and would not affect Harkinson’s discount;
9) As of approximately 8:27 a.m. on July 27, 2007 (12 days following Order Granting
Continuance), Harkinson had not made any inquiry of Mayo to reschedule her elective
surgery on a date that would not conflict with the scheduled hearing date in this matter, August 9, 2007.
Respondent and counsel would have this Court accept their July 25, 2007 misrepresentations as fact and truth. Further, they have asked this Court to constructively continue this matter until September 10-24, 2007 (Mayo ‘Authorization to Return to Work/School,’ “Patient recovery period will last approximately 4-6 weeks.”).
Petitioner restates its request the Court grant a pre-hearing conference on the record to hear specific allegations of counsel’s multiple misrepresentations made to this Court, including earlier misrepresentations re the “qualifications” of counsel and the “no scheduled association meetings” representation. With the Court’s permission, a brief voir dire of Harkinson should illuminate Respondent and counsel’s misrepresentations, their delay intended to frustrate opposing party and their willful failure to act in good faith.
21) On August 9, 2007 the hearing in No. 07F-HO67035-BFS, William M. Brown vs. Terravita Community Association, Inc. was held without the appearance of Harkinson, a lawfully subpoenaed witness who chose to defy the Court’s command to attend. [The hearing {4 hours, 28 minutes and 53 seconds} is an audio public record available to any interested party on the OAH’s website, www.azoah.com, 07f-h067035-bfs-DS230076.DSS]
22) On August 16, 2007 Judge Carroll’s Minute Entry noticed the parties, in-part: “The assigned Administrative Law Judge, having reviewed the e-mail received on August 14, 2007 and August 15, 2007…Parties are reminded that no filing should be sent without a copy duly sent to the opposing party. The following orders are made:1) Respondent is directed to supply a copy of its fax of August 2, 2007 to Petitioner; 2) Respondent shall have leave to supplement the record with the affidavits referenced in its pre-trial memorandum by Friday August 17, 2007 at 5:00 p.m. as evidenced by actual receipt by the Office of Administrative Hearings, Respondent shall also reflect in its filing that copies were mailed to Petitioner (the affidavits were not attached to the pre-trial memorandum filed by Respondent, such affidavits were likewise not attached to the copy filed with the Administrative Law Judge); 3) Petitioner shall have until August 31, 2007 to respond to the memorandum. Failure by Respondent to file the affidavits as hereby directed will result in the memorandum being rejected and not considered; 4) No reply to Petitioner’s response will be entertained.” [More “errata,” error that needs correction, by TCA’s lawyers]
23) September 6, 2007 Judge Carroll publishes his decision and order, Administrative Law Judge Decision, in No. 07F-HO67035-BFS that confirms the Petitioner’s simple thirty-one (31) word complaint that TCA violated the law (A.R.S. §33-1812) and disenfranchised 1,362 members of TCA.
A common sense reading of the decision clearly demonstrates the Judge takes exception with the Respondent’s argument “that the individual association members were incapable of violating the prohibition against the use of proxies in A.R.S. §33-1812 A because the Declaration precludes their right to vote at all. As a corollary to that argument, Respondent’s Bylaws prohibit voting delegates, the only members eligible to vote in Board elections, from voting by proxy.”
Further Judge Carroll’s reasoned and thoughtful decision provides its readers with six pages of detailed findings of fact and conclusions of law that resoundingly refutes and ridicules the legal arguments of TCA and its lawyers that voting delegates are not proxies (“Respondent’s attempt to distinguish proxies from delegate voting…the irony of Respondent’s claim…it is difficult to understand Respondent’s argument…Respondent’s argument suggest – surly the Legislature did not intend such a result…Respondent also argues an unconstitutional impairment of contractual rights – how could those rights and interests be compromised…Respondent’s attempt to differentiate and more”).
Judge Carroll’s decision and order absolutely belies TCA’s September 14, 2007 notice to the community, “The administrative law judge ordered that the Association must “follow the law”, with no explanation,” and exposes those responsible for the notice as the unmitigated liars they are.
Contrary to some of what has been said and written following TCA’s Community notice, the filing of the Petition in this matter (May 18, 2007) was not personal but rather challenged the conduct and actions of the corporation, Terravita Community Association, Inc., acting through its board of directors (all seven directors, pre and post the May 15, 2007 illegal election).
Notwithstanding the association’s, its board of directors’ and attorney’s failure to act in good faith in this matter and their multiple misrepresentations (false reporting) to the Court and to the community, any individual board member’s personal false reporting to others is reckless in the extreme as a matter of law. Further, anyone that understands the specific standards of care by which directors and officers are judged and the derivative liability that attaches to those that have aided and abetted a breach of that fiduciary duty, should leave their personal animus at the threshold of the board’s meeting room.
Lastly, the bold affirmation, “The Terravita Community Association Board of Directors is going to appeal this decision to the Superior Court,” should not go unchallenged by the 1,373 members of Terravita disenfranchised with respect to this “decision” and other such decisions steeped in hubris, ignorance, contempt and stupidity, all coupled by their transparent dishonesty.
Subject: SB1062 Homeowners' associations; for sale signs
My dear Representative Crandall:
If Dennis Welch, a member of the Fourth Estate, Tribune, East Valley-Scottsdale, in his April 10, 2007 article 'Political strife threatens for-sale yard sign bill,' reports correctly your belief (and amendment) that gated communities should be excluded from SB1062, respectfully, you could not be more incorrect.
Kindly consider my private gated "member only" community, Terravita, juxtaposed against the 48th Legislature's efforts (and previous legislatures) to amend Title 33 and/or write new law that further opens the commerce, conduct, records and actions of HOAs (and other non-profit corporations, social recreational clubs) to their members, associations that have in the past, present and likely in the future denied members their legal rights.
Terravita, “The Harmony of Land and Life,” is a 1993 north Scottsdale high-end gated golf and country club community of 1380 single-family homes (+/- 60% full-time residents and +/- 40% seasonal residents [winter]) on 823 of HighSonoranDesert with +/- 2900 residents. Our homeowner association board has seven members. Following the settlement (May 1998) of a 1997-1998 class action lawsuit against our community’s developer, an Arizona trial court created two additional associations/non-profit corporations within our community: a country club association/non-profit corporation (mandatory membership pursuant to Social Agreement filed of record and appurtenant to the land) to take title to the community’s country club assets (37,000+ SF clubhouse and dinning rooms, swimming pool, tennis courts, Desert Pavilion, parking facilities and certain roads leading to the facilities) and a golf club association/non-profit corporation (membership is voluntary) to take title to the community’s golf assets (18 hole championship golf course, maintenance facilities and certain cart paths throughout the community). Sadly, the trial court’s decision creating these additional associations/non-profit corporations within our community was affirmed on appeal by the Arizona Court of Appeals. The country club corporation/association has the mirror-image membership of the homeowner association (1380 members) and has its own seven-member board of directors (4 social non-golf and 3 social golf members). The golf corporation has +/- 390 golf members (all of which are social members of the country club) and has it own seven-member board of directors. Our homeowner association is governed by a declaration, bylaws, articles of incorporation, architectural design guidelines (all 1993 documents) and certain association rules and regulations promulgated during the past +/- eight years. The country club association/non-profit corporation has its own bylaws, articles of incorporation, a shared membership plan with the golf club and its own rules and regulations. The golf club association/non-profit corporation has its own bylaws, articles of incorporation, a shared membership plan with the country club and its own rules and regulations.
In sum, our community has three separate and distinct associations/non-profit corporations within its gates, three boards of directors with seven members each (21 total board members), multiple standing and ad hoc committees responsible to their respective board of directors, separate governing documents for the three associations, one management firm for the homeowner association, a different management firm for the country club while golf is self-managed (badly) and seven law firms representing (badly) the three corporations and their boards of directors.
Imagine the harmony of land and life in our community?
Contrary to your reported belief, "He said the decision to regulate signs should be left to the local management," an argument echoed by those in the HOA industry, not all local "management" serves the best interest of an association's homeowner members.
Know that the HOA industry's membership is largely comprised of law firm and management firm stakeholders that make their living controlling the day-to-day lives of association members by telling them what they can do, when they can do it, how they can do it and where they can do it in communities in which the stakeholders do not live. Consider the Terravita experience:
Management Firm: Terravita Community Association, Inc. - since +/- 1996 managed by Capital Consultants Management Corporation, Bart Park III, President of CCMC, past president of CAI (Community Associations Institute, Central Arizona Chapter) and a founding member and current board member of AACM (Arizona Association of Community Managers)
Law Firm: Terravita Community Association, Inc. - since +/- 1996 represented by Ekmark & Ekmark, LLC, Curtis S. Ekmark, past president of CAI, Central Arizona Chapter, member (1 of +/- 90 in the country) College of Community Association Lawyers, past and current co-chair LAC (Legislative Action Committee, CAI Central Arizona Chapter).
Law Firm: Terravita Country Club, Inc. (social recreational club with the mirror image membership of TCA [1380 mandatory members]) - since +/- 199_ represented by Carpenter Hazlewood, PLC, Scott B. Carpenter, past president of CAI, Central Arizona Chapter, member (1 of +/- 90 in the country) College of Community Association Lawyers, past and current co-chair LAC (Legislative Action Committee, CAI Central Arizona Chapter).
Law Firm: Terravita Golf Club, Inc. (social recreational club) - since +/- 1997 represented by William J. Sims III, Moyes Storey (previously with Santin, Poli, Ball & Sims).
Excepting Sims, the record, position and testimony of these lawyers and managers at the Legislature (48th and previous legislatures) is all too often in opposition to legislation that benefits the homeowner member of associations and/or seeks to diminishes the authority and control of the stakeholders over those lemmings to the sea and lambs to the slaughter (board member “fiduciaries” ostensibly serving the association members)
Perhaps, Representative Crandall, you might be interested in a lovely home on Terravita's golf course. Then tell me that all citizens, whether they live in associations or not, should not be treated the same.
The $8.5 million Community Center Project at Apache Wells has been stopped. Attorneys for the AWHOA Board of Directors have recommended that they "stand down" from starting the project and collecting the $6020 special assessment that was to be due April 2, 2007. The project hold was precipitated by a law suit that was filed in Superior Court Thursday by lead attorney Steven Cheifetz on behalf of homeowners who opposed the excessive cost of the project. It is hoped that the opposing parties can now come together and find some middle ground that will meet the needs of the entire community without a lengthy and costly legal battle. The law suit against the AWHOA Board is available online at www.angelfire.com/blog/saveaw/.
The underlying substantive message of 'Safe and Secure Communities' is, unless you enjoy pissing up a rope (TCA/TCC/TGC), take the conduct and/or action of those organizations and their 'leadership" to the appropriate federal, state, county and/or municipal agencies that exercise regulatory or legislative authority over the organizations' conduct and action.
It is your right to seek redress of your concerns and/or issues that your "leadership," by its non-responsiveness, chooses to ignore. Although not an exhaustive list, the following agencies will listen to you with comprehension, consideration and, where appropriate, will intercede on your behalf:
Federal - Internal Revenue Service; U.S. Attorney; others
State - Arizona Attorney General (Civil Division [represents over 75 State agencies, boards and commissions]; Civil Rights Division [Fair Housing] and Criminal Division [Special Investigations]); Department of Building and Fire Safety (HOA contested matters); Legislature; Office of Administrative Hearings (HOA contested matters); others
County - Maricopa County Assessor; Attorney; Board of Supervisors; Health Services (Environmental Services Department); Recorder; Sheriff; Superior Court; others
Scottsdale - Citizen & Neighborhood Resources; City Attorney (Civil/Prosecution/Victim Services); Community Services; Mayor and City Council; Municipal Services; Planning and Development Services; Police; Preservation; Water Resources; others, each with their many varied related divisions
Note the date of Ten Tam's message to Scottsdale Police Department, 'Cops Crack Down on Ridgemark HOA (March 8, 2007),' Lt. Connor's and WMB's conversation re Terravita ("...stop means stop [come to a halt] and 25 mph does not mean 35-40+ mph...") {March 15, 2007}, Connor's call to "...my contact at Capital Consultants" (March 21, 2007) and e-mail to WMB (March 21, 2007) and TCA's serendipitous letter "Dear Fellow Homeowner: Due to continued speeding and safety violations..." (March 21, 2007).
Homeowners should avail themselves of the offices of every agency (federal, state, county and municipal) that potentially has a "dog in that fight" respecting the individual and his/her association.
TCA (not unlike TCC and TGC), while generally non-responsive to the members' comments, observations, suggestions, recommendations, and/or complaints, was responsive (same day, March 21, 2007) to SPD.
Imagine if the caller had been Alex Skoczen, Bill Uhrick, David Valentine, Tom Molatore, Evelyn Anderson, Sue Dean, Charlie Mason (when still a member), WMB, Julie Ivery, John Ryley or any number of members largely ignored, disparaged or, in some cases, demonized in furtherance of TCA's, TCC's and TGC's agendas.
In furtherance of the quality of life, safe and secure communities within the City, substitute Terravita for Ridgemark in “Cops Crack Down On Ridgemark HOA (see below).”
Stop means stop (come to a halt) and 25 mph does not mean 35-40+ mph simply because there is no enforcement.
While the potential to injure, maim, kill and/or cause property damage by the reckless and unlawful operation of an automobile, van, truck or other motor vehicle is well-known and widely accepted, the same must be said for the +/- 500 lb golf cart with a load capacity of 3,000 lbs traveling at 19+ mph in Terravita undeterred by any enforcement of the community’s rules and regulations or the law in Arizona.
Ten Tam
Cops Crack Down on Ridgemark HOA
By Michael Van Cassell
Hollister - Look out, Ridgemark residents. The California Vehicle Code is being taken a little more seriously behind those gates.
The Ridgemark Homes Association recently asked local law enforcement agencies for more traffic patrol on the gated community's private roads. The San Benito County Sheriff's Office and the California Highway Patrol obliged, stepping up patrol and enforcement efforts Thursday.
Deputies and CHP officers are looking to crack down on speeding, drivers who run stop signs and those who ignore seat belt laws in the community, Ridgemark Golf and Country Club general manager Eric Dietz said.
Doug Boyce, a Ridgemark Homes Association director, said deputies and CHP officers have always had the right to patrol the community's roads. But after receiving numerous complaints from residents, the association asked CHP Capt. Brent Newman and San Benito County Sheriff Curtis Hill to make their law enforcement agencies more of a presence at Ridgemark.
"We're hoping this will slow everyone down and save someone's life," Boyce said.
The 25 mph speed limit has been posted at Ridgemark's entrance for years, Boyce said. However, the signs, which also state that the California Vehicle Code is enforced, were not up to Caltrans standards and were replaced within the last two weeks, he said.
Boyce said the alternative to increased enforcement is speed bumps.
Some Ridgemark residents welcome the presence of additional law enforcement. Bill Roberts, an 18-year Ridgemark resident, said speeding and the running of stop signs have become problems at Ridgemark.
"It's just a general disregard for public safety," Roberts said. "I see it more and more in Hollister too."
Roberts said it is too soon to tell if the agencies' efforts have made a difference.
Sheriff's Lt. Roy Iler said deputies began patrolling Ridgemark on Thursday, and have since issued about 10 tickets for various traffic violations. The CHP did not have statistics on how many tickets it had issued since Thursday.
The sheriff's office has received complaints about over enforcement, Iler said. However, the positives have outweighed the negatives, he said.
"I've probably had five or six people calling the station and thanking us," Iler said. "We're mostly trying to get the message out."
The agencies sent Ridgemark homeowners a 30-day notice to announce the stepped-up enforcement, Iler said.
Newman said the CHP is not playing favorites, but is focusing on blatant traffic violations.
"We're not in there trying to enforce every equipment violation," Newman said.
Michael Van Cassell covers public safety for the Free Lance. He can be reached at 831-637-5566 ext. 335.
Subject: RE: Scottsdale - Safe and Secure Communities
Mr. Brown, I've done some research through our city attorney's office, which confirmed what I believed. The police department does not have lawful authority to enforce traffic violations on private/gated roadways. We can enforce criminal traffic violations, such as DUI. I have spoken to my contact at Capital Consultants and requested she forward this information to the persons responsible you've listed below. (I took out any identifying information and told them it was from "concerned residents") I also offered our help if they need suggestions on how to address this issue, it just can't be enforcement. Thank you.
Pat Connor
From: william brown [mailto:wmbs-pp@...] Sent: Thursday, March 15, 2007 10:18 AM To: Connor, Pat #424 Subject: Scottsdale - Safe and Secure Communities
Pat:
It was my pleasure, personal as well as professional, speaking with you re the issues raised in Ten Tam's 03/08/07 message to select officers in the SPD, sharing some of my experiences and concerns with respect to Terravita and learning something about your responsibilities and likely course of action following our conversation.
Thank you for your call.
Persons responsible in-part for Terravita's safety and security:
Louise Harkinson, board president, Terravita Community Association, Inc. 488-7716
Dave Hetrick, board president, Terravita Golf Club, Inc. 575-9550
Delores Bergeron, manager (Capital Consultants Management Corporation), TCA, Inc. 595-7533
Serving Cave Creek, Carefree, North Scottsdale,
North Phoenix, Rio Verde, Anthem, The Boulders, Desert Mountain, Legend
Trail, Pinnacle Peak, Terravita, Tramonto, Troon, Tatum Ranch and Winfield. February 15 - 21, 2006
sonorannews.com
Terravita – somewhere between
Wisteria Lane and Bellevue
Desperate fish-wives hold an election
By Linda Bentley
SCOTTSDALE – While taking a little trip down memory
lane, a January 2003 piece by David La Touche, a Terravita resident at the
time, titled, “Anatomy of a fish-wife” surfaced.
It began, “If Audubon had been attempting a description of
this mysterious creature, he might have offered the following … General
description: A large gaudily plumed species characterized by a small head and a
large mouth, the latter open more often than not.” La Touch continued, “Often
seen with other females of the species with whom it communicates in simple
(minded) phrases delivered in a loud and repetitive manner.” In his commentary
about some of his fellow community and golf club members, La Touche went on, “…
leaving Audubon, our local fish-wives are, unfortunately, not bird species that
we can send the cat outside to chase off. In addition to providing noise
pollution to our communities, they invade our e-mail systems, reducing
band-width with their shrill and uncivil commentary.” Drawing from his vast
collection of repetitive fish-wife phrases, including, “Why don’t you do
something like being a director and help the community?” La Touche responded,
“Well, in my case, I’ve a doctorate in radiation biology, and I don’t think
that qualifies me to run a golf operation. I’m probably no more or less
qualified than any of the current directors, but at least I’m honest enough to
face my limitations.” Moving on to the next fishwife phrase, “If you keep
criticizing the directors no one will want to be a director,” La Touche wrote,
“Yeah, I wish.
Then perhaps we could get some professional management.” He
then quoted from the grand finale of fish-wife phrases (our personal favorite),
“You write in that rag the Sonoran News and it hurts our community, an’ nobody
reads that rag!” La Touche responded, “Well, if nobody ‘reads that rag’ how is
it hurting the community?” He then went on to describe a conversation between
himself and a club member (CM): CM: “That Sonoran News, they never get their
facts straight!” La Touche: “Well what facts do you mean, in what article?” CM:
“Why I would never read a rag like that!” La Touche: “Then how do you know that
they don’t get their facts straight? CM: “sputter … sputter.” La Touche wrote,
“So let’s not delude ourselves about this – everybody in our community reads
the Sonoran News – cover to cover – and particularly the fish-wives.” While La
Touche is now living happily ever elsewhere, the fish-wives are still active in
Terravita.
The Terravita Golf Club (TGC) has convinced both the country
club (TCC) and the community association (TCA) that it would be best for the
community to sell non-resident golf memberships (NRGM), since there are not
enough folks living in Terravita who want a golf membership.
However, there’s also no evidence there are people living
outside Terravita who wish to purchase a golf membership.
Selling outside memberships, should anyone want to buy one,
will cause the community to lose its favorable common area valuation of $500,
although the TGC claimed it would pay the difference in taxes assessed, which
could go from $5 to $100,000.
But if the TGC is unable to sell NRGM, the community will
have already lost its favorable common area valuation and be required to pay
the increase in property taxes, although, with what money is unclear.
The issue of NRGM is not new and remains as contentious as
the day residents sued Del Webb to keep the golf course private back in 1997.
But it continues to rear its ugly head and once again has
divided the community between the wants and the wantnots.
And the fish-wives have been out in force as the NRGM issue
finally made it all the way through to a community-wide election.
Although it was suggested in a letter to the TCC Board of
Directors by two members of the community to have Maricopa County Elections
handle the election for an extremely reasonable fee, the TCC board insisted
upon handling the election itself.
Well, as simple as an allmail election may have seemed, it was
way beyond the board’s abilities.
A problem was discovered after a community member mailed his
ballot in the return envelope provided. He wanted to make sure his ballot was
received so he sent it certified mail, return receipt requested.
The U.S. Post Office returned it stamped, “Undeliverable –
insufficient address.” The return envelopes were pre-printed with the address:
P.O. Box 472, Scottsdale, AZ 85262.
However, the Kachina Station, which is the Post Office for
the 85262 zip code, has no such P.O. Box number.
P.O. Box 472 is a Mail Boxes Etc. number and requires a
street address, suite number, and use of either “#” or “PMB” before the 472.
However, many of the ballots mailed without return addresses
and some met their demise in the postal dead letter file.
The story gets much deeper and nastier than space will allow
and the fish-wives were out in full force.
TCC’s president proved La Touche accurate when he lashed out
at various community members who were upset about the botched election.
When one resident suggested the entire board step down, the
president sent him an e-mail to chastise him for not becoming a board member
and just sitting on the sidelines criticizing those who do.
Meanwhile Terravita’s
professional management company CCMC has promoted Terravita’s onsite Manager
Mike Fee to a higher position at Greyhawk.
So, while Terravita pays CCMC for Mike Fee’s services, he’s
out getting OJT (on-thejobtraining) at Greyhawk.
Then there’s
Collette Scott, another one of CCMCs management employees at Terravita, who
popped up on the MCSO Techno-Cops fugitive list with an arrest warrant issued
on Aug. 17, 2004 for her failure to appear at the McDowell Mountain Justice
Court for a “public order crime.” It’s all true, regardless of what the
fish-wives may say.
As four of the six signatories to the unchanged March 22, 2000 "Resolution of the Terravita Community Association Board of Directors Regarding Community Bulletin Boards," you must find the transparent hypocrisy of the two current TCA officers reported responsible for removing "The Case Against Non-Resident Golf Memberships" yesterday repugnant in the extreme.
A recitation of the obligations, duties and standards of care owed by directors to an association hardly seems necessary, however it would seem apparent and incumbent on the TCA Board to declare a vote of no confidence respecting these directors and invite their voluntary resignations. Failing their immediate resignations, the Board should communicate its will to the Voting Delegates. Pursuant to Article II, 2.4 Special Meetings and Article III, 3.6 Removal of Directors and Vacancies, the Voting Delegates, assuming agreement with the Board, should exercise their proper authority to remove as quickly as permitted by the constituent documents, the offending directors.
Subject: [mail] Kiosk Notice Re "No-NRGM" Website and OTT
Two board members of TCA contacted Mike Fee this last Sunday, and instructed him to take down the Kiosk Notice posted last Friday, regarding the existence of the website, www.no-nrgm.com, and also how to subscribe to OurTattlerToo, an internet message board for the residents of Terravita, to better inform them regarding issues raised by NRGMs.
The Kiosk Notice was taken down without any call or notice to any of the other board members of TCA.
The TCA board is now going to vote on whether to repost the Kiosk Notice at its board meeting this Tuesday at 4:00 p.m., or decide that the Kiosk Notice will not be reposted. The two board members of TCA who are also golf members, are conflicted by law, and should therefore not vote on this issue.
You have a first amendment right as a resident of Terravita to become informed about the issues surrounding NRGMs, especially since TCC wouldn't agree to send out a mailing by residents opposed to NRGMs, to present the other side against NRGMs.
The two board members who decided that you don't have such right, are acting as censors. Why? What personal agenda do they have? What right do they have to prevent the free flow of information and opinions at Terravita regarding NRGMs?
You should be outraged over this censorship, and attend the TCA board meeting this Tuesday to demand that the Kiosk Notice be immediately reposted by TCA.
Keep Terravita Private.
Vote "NO" on NRGMs.
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Should not the same AG Opinion apply equally to
associations/non-profit corporations? Perhaps the 47th Legislature
should consider the opinion and its application to HOAs, associations,
anon-profit corporations and others.
WMB
Don Peters was
my appellate lawyer in 1998 following Terravita’s abysmal “settlement” of the
CV97-23946, Terravita’s Class Action Complaint against Del Webb re the sale,
transfer and settlement of Webb’s golf and non-golf assets, a flawed settlement
that continues to be a problem for Terravita today, seven plus years later.
Attorney General
Opinions - 2005
July 25, 2005 Re:
Open Meeting Law Requirements and E-mail to and from Members of a Public Body No. I05-004 (R05-010)
Subject: Fw: upcoming AZ legislative session - SB1007, SB1008

Counsel:
Sometimes good comes from a blind hog finding an acorn. Sometimes good comes from the focused efforts of those exercising a modicum of common sense (read David D. Dodge's "Nonrefundable Fees - Trouble With a Dollar Sign," Arizona Attorney, December 2005), doing that which should be intuitively obvious to the "professionals" and doing that which is right and fair.
If Waring, Gray, Farnsworth and others pass new law (statutory remedies) during the Second Regular Session of the 47th Legislature, when an association/non-profit corporation board of directors directs its professionals to wrongfully deny (a historic unlawful practice [Say, Terravita]) a member his/her right to the association's/non-profit corporation's books and records, it will come with a price without the righteous having to sue the bastards.
I trust you will personally and professionally support legislation that is right and fair.
Subject: upcoming AZ legislative session - SB1007, SB1008
Well folks, a longtime advocate working with Sen. Jim Waring has gotten SB1007 on the agenda. Congratulations Bill Brown and Sen. Waring, and to Brian Townsend.
The bill sets $20/hour max charge for providing records and removes the unconscionable "pending litigation" exclusion. In my opinion, this wording is a bastardized version of the Rules of Civil Procedure relating to discovery of information with respct to litigation. The attorneys who promoted this provision well know that the Rule pertains to work products, such as notes, opinions, strategy, etc. with respect to the litigation, AND NOT TO EXISTING CORPORATE BUSINESS RECORDS THAT, UNDER LAW, ARE AVAILABLE TO HOMEOWNERS.
For those not familiar with the issues prompting this bill, it has to do with CAI lobbyist attorneys not following the letter of the law, and enforcement of the laws is necessary.
All:Your support of Senator Waring’s SB1007 is appreciated in advance.Advocates for individual rights in associations and non-profit corporations will continue to seek amendments to Title 33 and/or new law that further opens the commerce, conduct, actions and records of these associations and corporations to their members. Additionally, advocates will seek statutory remedies (sanctions, penalties, monetary fines, other) against those associations and corporations that deny members their legal rights.
WMB
Forty-seventh Legislature, Second Regular Session 2006: SB1007, Introduced by Senator Waring An Act Amending Sections 33-1248, 33-1258, 33-1260, 33-1804, 33-1805 and 33-1806, Arizona Revised Statutes Relating to Condominiums and Planned Communities. Reference Title: condominiums; homeowners’ associations; records; fees
“Hey Bill, it’s Brian at the State Senate. Just wanted to let you know that he (Senator Waring) has introduced SB1007 which is available on the website now, and it makes your requested changes to 33-1805, striking contemplated litigation. It does a few other things as well, but that provision is in SB1007. Just thought I’d let you know that he had done it and it’s out there so that hopefully you can support it through the process and if you know other people who might be able to contact their members as well to generate some support for it, that would be great. If you have any questions, give me a call 926-____. Thanks.
Hope things are well. Talk to you later. Bye.”
Brian Townsend Policy Advisor to the Majority
December 5, 2005
--------------------------------- SB1008
Sets foreclosure option to unpaid assessments in excess of $5,000. Remember, while penalties, late charges and interest are not foreclosuable amounts, the statute still allows for foreclosure on attorney and collections fees. Why, I ask?
___________________________________________________ AHLIS Legal Information eEditorials Citzens for Constitutional Local Government George K. Staropoli http://pvtgov.org
Your support of Senator Waring’s SB1007 is appreciated in
advance.
Advocates for individual rights in associations and
non-profit corporations will continue to seek amendments to Title 33 and/or new
law that further opens the commerce, conduct, actions and records of these
associations and corporations to their members. Additionally, advocates will
seek statutory remedies (sanctions, penalties, monetary fines, other) against
those associations and corporations that deny members their legal rights.
WMB
Forty-seventh
Legislature, Second Regular Session 2006:
SB1007,
Introduced by Senator Waring
An
Act Amending Sections 33-1248, 33-1258, 33-1260, 33-1804, 33-1805 and 33-1806,
Arizona Revised Statutes Relating to Condominiums and Planned Communities.
“Hey
Bill, it’s Brian Townsend at the State Senate. Just wanted to let you know that
he (Senator Waring) has introduced SB1007 which is available on the website
now, and it makes your requested changes to 33-1805, striking contemplated
litigation. It does a few other things as well, but that provision is in
SB1007. Just thought I’d let you know that he had done it and it’s out there so
that hopefully you can support it through the process and if you know other
people who might be able to contact their members as well to generate some
support for it, that would be great. If you have any questions, give me a call
926-____. Thanks. Hope things are well. Talk to you later. Bye.”
An association and its board of directors
apologizing for its apparent ignorance, arrogance, total lack of common sense
(notwithstanding the advise and counsel of its lawyers) and transparent
mean-spiritedness is an interesting, albeit underutilized, approach to
association governance.
Given Terravita’s (TCA/TCC/TGC) long sad
record of ignorance, arrogance, total lack of common sense and transparent
mean-spiritedness (although not all inclusive: terms and conditions of the
“settlement” of CV97-23946; TCA vs. Wussow; TCC’s failure to pay its 2nd
half ’98, 1st and 2nd half ’99 and 1st half
’00 real estate taxes; Desert Pavilion kitchen debacle (+/- $100k); Elan
Account (TCC-TGC credit card abuse); construction defect litigation in 2000
opposed by Terravitan’s “popular petition” versus 700+ construction defect
plaintiffs in 2005; TCC’sreal
property taxes [Common Area Valuation] and its still unresolved lawsuits
against Maricopa County [Assessor] and the State of Arizona [ADOR]; TGC’s three
failed bites at the non-resident golf membership apple, with a fourth pending
seemingly supported by TCC’s front men; IRS and TCC’s/TGC’s qualifications as
organizations exempt from income tax; TCC board members’ conflict of interest
[NRGM]; TCC, TGC and certain individual board members are defendants in a
pending [20+ months] federal lawsuit; TGC and 12 board members and their
spouses are defendants in a pending [16+ months] state civil lawsuit brought by
some of TGC’s own members; past, present and future financial condition and/or
solvency of TGC [confidentiality demanded by TGC of TCC board members re TGC’s
financial condition secreted from TCC’s 1380 members]; TCC’s swimming pool,
tennis courts, glue lam beams and other; during the period of 05/01/02 through
04/30/04, TCC and TGC have expended $300,000+ of their members’ due on legal
fees [what might those fees be from 05/01/04 to the present given TCC’s and
TGC’s continuing and expanding legal problems {during the exact period of time,
TCA’s legal fees were less than $10,500}]; Molatore vs. TCC and the Arizona
Attorney General re Molatore’s complaint of housing discrimination; TGC and the
Arizona Attorney General re civil and/or criminal RICO allegations and more),
when was the last time these associations and boards of directors accepted
responsibility for their conduct and actions, or ever apologized to the
members?
Board of directors must understand their
conduct and actions should not be made easy by the mistaken belief that the
cost of their conduct and actions will be borne by OPM (Other People’s Money).
It is the members’ money and the members’ associations!
WMB
The Privatopia Papers
September 13, 2005
Ocala subdivision apologizes for barring
temporary housing of evacuees an
Associated Press report 09/13/05
OCALA - A homeowners association has apologized for telling
residents that subdivision rules would keep them from temporarily housing
Hurricane Katrina evacuees.
The Majestic Oaks Homeowners Association said Monday it made a
serious error when it told residents that hosting families from the devastated
Gulf Coast would violate deed restrictions.
"We believed that more than one family in a house for an
extended period of time would be a violation of the covenants, which could
expose the homeowners to litigation for not enforcing the covenants," the
board wrote in an apology delivered to residents' mailboxes. "No matter
how well intended we were, it was an error and we sincerely apologize."
Residents in the 500-home subdivision are now free to offer shelter
to people who fled the storm's destruction.
The board initially notified homeowners that they could not
temporarily host hurricane evacuees after learning one resident planned to take
in three New Orleans families.
Some angry residents said they would consider moving, and two
members of the board resigned in protest.
Homeowner Diane Mercier applauded the apology.
"We can now begin meeting the needs of families that will be
coming into our community," she told the Ocala
Star-Banner.
Marion County Neighborhood Won't Allow
Hurricane Evacuees
9/6/2005
By David Hamilton/WCJB TV20 News
Deeds aren't the only thing restricted in one Southwest
Marion County community, as residents learned over the weekend that they won't
be able to house hurricane evacuees who fled from the Gulf Coast.
Citizens at each home in Majestic Oaks subdivision near
Ocala received flyers on Saturday reminding them of the community's by-laws,
which also explained that housing evacuees would be a violation of those rules.
The flyers were distributed by the community's Homeowners
Association Board of Directors after its members learned that a minister who
lives in the neighborhood planned on housing families from the Gulf Coast.
The flyer outraged many residents, who say they can't
believe the board is being this heartless; however, the board's Vice President,
Audrey Andrews, said their actions were misunderstood.
She says they were only trying to remind residents that
they are a single-family dwelling neighborhood, and that the covenants of the
community have been in place for many years. Andrews says she shares her
neighbors compassion for Hurricane Katrina victims, but says a better approach
would be to donate money to charitable organizations.
To the Mister Magoo/Mr. Limpet look-alike and his brother golfer, Ichabod Crane, who regularly demonstrate their infantile age while driving their cars/golf carts down Amber Sun Drive by imitating Vice President Nelson Rockefeller’s one-fingered salute to young voters at a 1976 Bob Dole political rally, rather than offend neighbors, their friends and invited guests as you speed down Amber Sun Drive and are inexorably driven to count your IQ, a single finger on a single hand, try stopping and exploring a more in-depth expression of your feelings.
Milquetoast shrinking violets should probably just speed by without stopping and GFY.
Sadly, Terravita's governing bodies and their agents seem to be unduly challenged with respect to compliance with federal and state statutes and county and municipal codes, ordinances and regulations: (IRS 501(c)(7) organizations [TCC & TGC]; Mason vs. TGC, Inc, et al.; Thayer vs. TCC, Inc., TGC, Inc., et al.; TCC, Inc. vs. Maricopa County Assessor and Arizona Department of Revenue [real property taxes]; MCESD-TCC's swimming pool; AZ AG's Civil Rights Division-Conciliation Agreement; City of Scottsdale-Desert Pavilion kitchen and others).
Apparently, the tree trimmings and landscape materials directly across the street from our home (and other homes throughout Terravita) placed there before our trimmings and equally or more weathered, were not deemed to be a fire hazard by "Terravita homeowners ("homeowner's concerns") who indicated that the brush may be a fire hazard."
Those "Terravita homeowners ("homeowner's concerns")" affirming the trimmings were developing an unpleasant odor are damn liars.
TCA, Inc. and CCMC (as well as TCC and TGC) should be "concerned" with compliance with the law, not with foisting unsolicited, un-welcomed and unlawful assistance on homeowners that are in-fact in compliance with the City of Scottsdale's Solid Waste Department's Brush Guidelines (Restrictions and/or Changes).
David Valentine (a past TCA director), in his message, "Terravita Country Club - July 19m 2005 Pool Update II," to the TCC board, TCC's manager and pool committee members, expressed sentiments worthy of Terravita's governing bodies' careful consideration, "Do what I pay you to do. Get the work (sic) done, get out of my way, and leave me alone."
Brush Removal, "We will make every effort to ensure that this does not happen to you or any other Terravita homeowner in the future." Lipstick on a pig!
By return mail, please provide the TCA, Inc. policy, if any, respecting its employees, sub-contractors, agents and/or others entering any residential yard in Terravita without lawful authority when the person’s intent for entering or remaining is not licensed, authorized or otherwise privileged.
Further, please provide the TCA, Inc. policy, if any, respecting its employees, sub-contractors, agents and/or others controlling or converting the property of a Terravita owner with the intent to deprive the owner of his/her property without lawful authority.
Your timely response is appreciated in advance.
William M. Brown
Partner
B:/WMB/Terravita/TCA, Inc.Board of Directors/Criminal Trespass/DPML&P
Earlier today, I asked Collette Scott to call you and Angel Ramirez of Four Peaks Landscape Management regarding removal of the brush in the front yard of your property. My intention was to assist you in having the brush removed prior to next week’s scheduled brush pick-up by the city of Scottsdale Solid Waste Department.
The TCA office had been contacted by Terravita homeowners who indicated that the brush may be a fire hazard and was also developing an unpleasant odor. In an effort to expedite the brush removal on your property to address these homeowners’ concerns, I felt that having the TCA’s landscape contractor, Four Peaks Landscape Management, remove the brush in your front yard would be the best way to address this issue. Obviously, I wrongly assumed that the TCA would receive your consent prior to removing the brush and, unfortunately, the brush was removed from your property without your knowledge, which I regret having happened.
The TCA was attempting to help you with getting the brush removed, however, I understand your concern with the association removing anything from a homeowner’s private property without the homeowner’s permission, and we will make every effort to ensure that this does not happen to you or any other Terravita homeowner in the future.
Subject: Fw: Thomas L. Molatore vs. Terravita Country Club - AG Civil Rights Division Mediated Conciliation Agreement
[ag.inquiries@... Please forward this message to Ms. Virginia Herrera-Gonzales (e-mail address uncertain)]
Dear Ms. Herrera-Gonzales:
The courtesy of a response from the AG's Civil Rights Division would be appreciated.
At the behest of Tony (no last name provided), my Tuesday morning (08/ 02/05) call to the Complaint and Conflict Resolution Section was referred to Ms. Melanie Pate.
"You have requested a copy of the Conciliation Agreement between Mr. Molatore and TCC. That document will not be provided you. A.R.S. 33-1805 states that documents related to "pending or contemplated litigation" and documents relating to "personal, health, and financial information about an individual member" of the Association need not be disclosed," Scott B. Carpenter, Carpenter Hazlewood, PLC, counsel for TCC, Inc. Bootstrapping at its worse.
Perhaps the Attorney General's Civil Rights Division would agree that disclosing the Conciliation Agreement 27+ months after its mediation would further the 1379 other members' understanding of their civil rights and fair housing rights in their own community.
Subject: Thomas L. Molatore vs. Terravita Country Club - AG Civil Rights Division Mediated Conciliation Agreement
Ms. Pate:
Upon information and belief, the Civil Rights Division of the Office of the Attorney General mediated a complaint/dispute between Thomas L. Molatore and Terravita Country Club in early 2003 resulting in a Conciliation Agreement requiring certain improvements to TCC’s facilities be made on behalf of TCC members with disabilities in furtherance of the members’ accessibility to the facilities. $40,000+ was spent on TCC’s swimming pool improvements that include a “beach access (zero depth entry).” On July 5, 2005, TCC affirmed, “…the beach access is in full compliance…we have no further obligations under the Conciliation Agreement (see 07/05/05 VanDerway to Molatore attached).” The parties’ open dispute with respect to compliance, whether ADA or MCESD, has embroiled the community of Terravita. [Note: membership in TCC is mandatory for all Terravita’s 1380 homeowners (compelled by deed and social agreement appurtenant to the land), as such the questions/issues respecting compliance affects all members, whether able bodied or disabled.
Notwithstanding TCC’s three “Not Approved” Construction Inspections by MCESD (02/17/05; 03/21/05 and 06/15/05) and a “Not Approved” Special Survey (06/20/05, “…evaluate zero depth entry and deck”), TCC opened the swimming pool on April 1, 2005. On July 14, 2005 the pool was “Closed By Order of MCESD.” On July 15, 2005, TCC without approval re-opened the pool (1:07 PM). Three hours later on July 15, 2005 the pool was “Closed By Order of MCESD (3:54 PM)” for its “…failure to qualify for a permit and operating without a permit [‘This establishment fails to meet minimum standards as set forth by the Maricopa County Environmental Health Code.’]
Notwithstanding the terms and conditions of the Conciliation Agreement (unknown to the members), there are substantive questions whether the pool violates the handrail requirements of Maricopa County Environmental Health Code, Chapter VI (Bathing Places – Public & Semipublic Swimming Pools), Section 14 (Zero Depth Entry Pools), Regulation 3. (“Handrails shall be provided at the ends of the zero depth entry.”) and the handrail requirements of ADA. Further, TCC’s required compliance with MCEHC’s fencing requirement, Chapter VI, Section 7, Regulation 2. Fencing 8.b. (self-latching device), effectively denies access to the pool and pool area to the disabled as well as those able bodied members whose stature prevents them from opening the pool’s gates (see July 20-26, 2005 Sonoran News, “Terravita – Silence of the laps turns revenge of the board. Maricopa County orders Terravita’s pool closed”).
Contrary to the applicable open books and records statutes (Title 10 and Title 33), TCC, through its counsel, has denied the members their right to inspect and/or copy the Conciliation Agreement while spending the members’ dues ($2,318,400 per year) in a continuing failed effort to accommodate the disabled and to bring TCC’s facilities into compliance (federal, state, county and/or municipal).
By facsimile [(480) 949-7587] and Regular US Mail, please forward a copy of the Conciliation Agreement to:
While you may be attempting to help yourself and only the other members of TCC similarly situated, I am trying to help protect the right of all members (+/- 2 million) in Arizona's 10,000+ associations (as well as the 55+ million Americans living in 250,000+ associations across the country) to have access (inspect/copy) to their association's books and records as provided by statute and not denied by the whim of a board of directors or its counsel. For years before your complaint to the AG and continuing to the present (see WMB to Rep. Gray and others), my friends and I in Arizona and across the country have worked tirelessly to protect the individual's rights in associations, to expand those rights where needed and to seek enforcement of those rights by the appropriate regulatory authority.
Those individuals that will not help themselves by helping others that are eminently capable, regularly successful and willing to help them, and by enabling those that would deny them, are little more than a sad disappointment to their friends, neighbors and the thousands or millions of unknown persons similarly situated.
While building his media empire, Ted Turned proclaimed to the world in no uncertain terms, “Lead, follow or get the hell out of the way.” In your lifetime you will meet very few people that embrace and practice a wisdom that benefits not the individual but the greater good.
Your assistance is appreciated in advance. You may forward any e-mails from me re this issue and/or other legislative issues to Jeff Sandquist and/or others engaged in shaping HOA legislation.
Mr. Brown, Thank you for contacting our office. We are looking into this situation for you. I would like permission from you to forward these emails to Mr. Jeff Sandquist, a lobbyist who has helped Mr. Gray with HOA legislation and also would like to know if Mr. Sandquist can contact you to try to help you with this situation. Please email me back and let me know.
Thanks!
Sue Smith Assistant to Representatives Chuck Gray and Michele Reagan 602-926-3136
From: william brown [mailto:wmbs-pp@...] Sent: Monday, August 01, 2005 9:46 PM To:Chuck Gray Subject: Fw: Books and Records, TCC, Inc.
My dear Representative Gray:
The requested document is a Conciliation Agreement by and between Terravita Country Club, Inc. and Thomas L. Molatore referenced in the TCC, Inc. (R.E. VanDerway) letter, “Swimming Pool Modifications, Conciliation Agreement dated April 18, 2003,” to Thomas L. Molatore dated July 5, 2005 and is in open dispute by the parties (letter from TCC to Molatore and response by Molatore to TCC) as to the terms and conditions flowing from an Attorney General mediation between the parties.
As the community (1380 North Scottsdale homes) will apparently be denied the disputed record (Conciliation Agreement),
You will not be getting this record. I’ll send you a formal letter with the explanation. [Carpenter, 08/01/05, 7:56 PM]
perhaps your good offices might inquiry of TCC/Carpenter, why, in furtherance of the legislature's understanding of the difficulties members have in accessing their association's/non-profit corporation's records.
Thank you in advance for your understanding and assistance.
While you may be attempting to help yourself and only the other members of TCC similarly situated, I am trying to help protect the right of all members (+/- 2 million) in Arizona's 10,000+ associations (as well as the 55+ million Americans living in 250,000+ associations across the country) to have access (inspect/copy) to their association's books and records as provided by statute and not denied by the whim of a board of directors or its counsel. For years before your complaint to the AG and continuing to the present (see WMB to Rep. Gray and others), my friends and I in Arizona and across the country have worked tirelessly to protect the individual's rights in associations, to expand those rights where needed and to seek enforcement of those rights by the appropriate regulatory authority.
Those individuals that will not help themselves by helping others that are eminently capable, regularly successful and willing to help them, and by enabling those that would deny them, are little more than a sad disappointment to their friends, neighbors and the thousands or millions of unknown persons similarly situated.
While building his media empire, Ted Turned proclaimed to the world in no uncertain terms, “Lead, follow or get the hell out of the way.” In your lifetime you will meet very few people that embrace and practice a wisdom that benefits not the individual but the greater good.
The requested document is a Conciliation Agreement by and between Terravita Country Club, Inc. and Thomas L. Molatore referenced in the TCC, Inc. (R.E. VanDerway) letter, “Swimming Pool Modifications, Conciliation Agreement dated April 18, 2003,” to Thomas L. Molatore dated July 5, 2005 and is in open dispute by the parties (letter from TCC to Molatore and response by Molatore to TCC) as to the terms and conditions flowing from an Attorney General mediation between the parties.
As the community (1380 North Scottsdale homes) will apparently be denied the disputed record (Conciliation Agreement),
You will not be getting this record. I’ll send you a formal letter with the explanation. [Carpenter, 08/01/05, 7:56 PM]
perhaps your good offices might inquiry of TCC/Carpenter, why, in furtherance of the legislature's understanding of the difficulties members have in accessing their association's/non-profit corporation's records.
Thank you in advance for your understanding and assistance.
Mr. Brown: Since the beginning of my firm’s representation of TCC, it has been clear and I know you have understood that you do not have direct access to me. Your request that I tell my client anything in particular is not well received.
Scott B. Carpenter, Esq. CARPENTER HAZLEWOOD, PLC 1400 E. Southern Ave., Suite 640 Tempe, AZ 85282 480-991-6949 Telephone 480-991-7040 Fax scott.carpenter@... www.carpenterhazlewood.com
The information in this e-mail is ATTORNEY-CLIENT PRIVILEGED AND CONFIDENTIAL and is intended solely for the use by the individual or entity named above. If you believe that it has been sent to you in error, do not read it. Please reply to the sender that you have received the message in error, then delete it.
This firm may act as a debt collector. Any information obtained will be used for that purpose.
From: William M. Brown [mailto:wmbs-pp@...] Sent: Friday, July 29, 2005 5:01 PM To: Scott B. Carpenter Cc: cicir@... Subject: Books and Records, TCC, Inc.
Counsel:
Notwithstanding your client’s curious e-mail message of 8:42 AM this date, “ We are in receipt of your request postmarked July 26, 2205,” at COB (5:00 PM) this evening they remain non-responsive and non-compliant to the July 25, 2005 records request.
Since May 27, 2005 (Request To Inspect/Copy Records), has your client forgotten its obligation/s with respect to the books and records of the corporation and a member’s right to inspect and/or copy those records (not more than five days following receipt of a [sic] demand) of the corporation?
Please advise your client of their obligation pursuant to law and their governing documents.
Subject: Fw: Custodian of the Records - Second Request
Counsel:
If you agree that the Arizona Revised Statutes and the Amended and Restate Bylaws of Terravita Country Club, Inc. permit a member to inspect and copy certain records of the corporation, please advise your client of their obligation under the law.
Pursuant to the Arizona Revised Statutes and the Bylaws of Terravita Community Association, Inc., please advise the date, not more than five days following receipt of this demand, and time the following corporate record/s will be made available for inspection and copying:
1)Conciliation Agreement by and between Terravita Country Club, Inc. and Thomas L. Molatore referenced in the TCC, Inc. (R.E. VanDerway) letter, “Swimming Pool Modifications, Conciliation Agreement dated April 18, 2003,” to Thomas L. Molatore dated July 5, 2005.
If my request is denied in whole or part, you are requested to justify all deletions by reference to specific exemptions of the statutes. You are expected to release all segregable portions of otherwise exempt materials. I, of course, reserve the right to appeal your decision to withhold any information.
Your timely compliance is appreciated in advance.
William M. Brown
Partner
WMB/dl
B;/WMB/Terravita/TCC, Inc. 04/18/03 Conciliation Agreement/MLP/File
GS: You should send SBC an e-mail asking why a member should be denied his corporation's books and records, or, in Carpenter's mind, are all inhabitants of this planet denied "direct access to him (sic)" except for his clients? WMB
In a message dated 8/1/2005 8:07:19 PM US Mountain Standard Time, wmbs-pp@... writes:
Mr. Brown: Since the beginning of my firm’s representation of TCC, it has been clear and I know you have understood that you do not have direct access to me. Your request that I tell my client anything in particular is not well received.(Emphasis added)
Now, see what you did? You pissed him off!
___________________________________________________ AHLIS Legal Information eEditorials Citzens for Constitutional Local Government George K. Staropoli http://pvtgov.org
Mr. Brown: Since the beginning of my firm’s representation of TCC, it has been clear and I know you have understood that you do not have direct access to me. Your request that I tell my client anything in particular is not well received.(Emphasis added)
Scott B. Carpenter, Esq. CARPENTER HAZLEWOOD, PLC 1400 E. Southern Ave., Suite 640 Tempe, AZ 85282 480-991-6949 Telephone 480-991-7040 Fax scott.carpenter@... www.carpenterhazlewood.com
The information in this e-mail is ATTORNEY-CLIENT PRIVILEGED AND CONFIDENTIAL and is intended solely for the use by the individual or entity named above. If you believe that it has been sent to you in error, do not read it. Please reply to the sender that you have received the message in error, then delete it.
This firm may act as a debt collector. Any information obtained will be used for that purpose.
From: William M. Brown [mailto:wmbs-pp@...] Sent: Friday, July 29, 2005 5:01 PM To: Scott B. Carpenter Cc: cicir@... Subject: Books and Records, TCC, Inc.
Counsel:
Notwithstanding your client’s curious e-mail message of 8:42 AM this date, “ We are in receipt of your request postmarked July 26, 2205,” at COB (5:00 PM) this evening they remain non-responsive and non-compliant to the July 25, 2005 records request.
Since May 27, 2005 (Request To Inspect/Copy Records), has your client forgotten its obligation/s with respect to the books and records of the corporation and a member’s right to inspect and/or copy those records (not more than five days following receipt of a [sic] demand) of the corporation?
Please advise your client of their obligation pursuant to law and their governing documents.
Subject: Fw: Custodian of the Records - Second Request
Counsel:
If you agree that the Arizona Revised Statutes and the Amended and Restate Bylaws of Terravita Country Club, Inc. permit a member to inspect and copy certain records of the corporation, please advise your client of their obligation under the law.
Pursuant to the Arizona Revised Statutes and the Bylaws of Terravita Community Association, Inc., please advise the date, not more than five days following receipt of this demand, and time the following corporate record/s will be made available for inspection and copying:
1)Conciliation Agreement by and between Terravita Country Club, Inc. and Thomas L. Molatore referenced in the TCC, Inc. (R.E. VanDerway) letter, “Swimming Pool Modifications, Conciliation Agreement dated April 18, 2003,” to Thomas L. Molatore dated July 5, 2005.
If my request is denied in whole or part, you are requested to justify all deletions by reference to specific exemptions of the statutes. You are expected to release all segregable portions of otherwise exempt materials. I, of course, reserve the right to appeal your decision to withhold any information.
Your timely compliance is appreciated in advance.
William M. Brown
Partner
WMB/dl
B;/WMB/Terravita/TCC, Inc. 04/18/03 Conciliation Agreement/MLP/File
Subject: RE: Custodian of the Records - Second Request
You will not be getting this record. I’ll send you a formal letter with the explanation.
Scott B. Carpenter, Esq. CARPENTER HAZLEWOOD, PLC 1400 E. Southern Ave., Suite 640 Tempe, AZ 85282 480-991-6949 Telephone 480-991-7040 Fax scott.carpenter@... www.carpenterhazlewood.com
The information in this e-mail is ATTORNEY-CLIENT PRIVILEGED AND CONFIDENTIAL and is intended solely for the use by the individual or entity named above. If you believe that it has been sent to you in error, do not read it. Please reply to the sender that you have received the message in error, then delete it.
This firm may act as a debt collector. Any information obtained will be used for that purpose.
From: william brown [mailto:wmbs-pp@...] Sent: Friday, July 29, 2005 8:49 AM To: Scott B. Carpenter Subject: Fw: Custodian of the Records - Second Request
Counsel:
If you agree that the Arizona Revised Statutes and the Amended and Restate Bylaws of Terravita Country Club, Inc. permit a member to inspect and copy certain records of the corporation, please advise your client of their obligation under the law.
Pursuant to the Arizona Revised Statutes and the Bylaws of Terravita Community Association, Inc., please advise the date, not more than five days following receipt of this demand, and time the following corporate record/s will be made available for inspection and copying:
1)Conciliation Agreement by and between Terravita Country Club, Inc. and Thomas L. Molatore referenced in the TCC, Inc. (R.E. VanDerway) letter, “Swimming Pool Modifications, Conciliation Agreement dated April 18, 2003,” to Thomas L. Molatore dated July 5, 2005.
If my request is denied in whole or part, you are requested to justify all deletions by reference to specific exemptions of the statutes. You are expected to release all segregable portions of otherwise exempt materials. I, of course, reserve the right to appeal your decision to withhold any information.
Your timely compliance is appreciated in advance.
William M. Brown
Partner
WMB/dl
B;/WMB/Terravita/TCC, Inc. 04/18/03 Conciliation Agreement/MLP/File
Subject: Fw: Rep. Chuck Gray re future legislation, "...penaltities for associations that fail to follow statute..."
My dear Representative Gray:
At the behest of my friend and sometimes association (HOA)/non-profit corporation antagonist, Bart Park III, please be advised that in the instant (albeit far too frequently) case of non-compliance with the books and records statute (Association financial and other records) in Terravita it is not the non-compliance of the HOA (TCA, Inc.), but rather Terravita Country Club (TCC, Inc.), an Arizona non-profit corporation, one of three such corporations in Terravita, each with its own governing documents and each with a seven person board of directors. You may find it noteworthy that TCC's and TCA's counsel are not unfamiliar to you and your brethren legislators, Scott B. Carpenter and Curtis S. Ekmark respectively.
Please know many homeowners in the "...20% of HOAs having 80% of the problems (sic)" would applaud the 48th Legislature for legislation that would penalize an association/non-profit corporation for its non-compliance with the statutes, but would rather see funding for the Office of the Attorney General as the appropriate agency to enforce the applicable association/non-profit corporation statutes, not unlike the AG's enforcement of Arizona's public bodies' statutes.
Subject: RE: Rep. Chuck Gray re future legislation, "...penaltities for associations that fail to follow statute..."
Would you please let Representative Gray know that it is the TCC and not the TCA.
Thank you in advance.
From: William M. Brown [mailto:wmbs-pp@...] Sent: Monday, August 01, 2005 1:52 PM To: Bart Park Subject: Fw: Rep. Chuck Gray re future legislation, "...penaltities for associations that fail to follow statute..."
Subject: Rep. Chuck Gray re future legislation, "...penaltities for associations that fail to follow statute..."
GS: Chuck Gray, your readers and other legislators may be interested in Terravita's most recent apparent attempt to deny a member his/her right to the association's/non-profit corporation's books and records. WMB
A comprehensive new law governing homeowners associations goes into effect Aug. 12 and provides property owners more protection from — and recourse when dealing with — unscrupulous HOA board members, the sponsor of the legislation says.
Rep. Chuck Gray, R-19, said H2154 (Laws 2005 Chapter 269) attempts to address the minority of devious HOA board members that are creating the majority of the problems.
“Eighty percent of the HOAs are fine, but there are 20 percent out there…that are having problems,” he said. “But, they are having 80 percent of the problems.”
Among other things, the law — it was a strike-everything omnibus bill that combined the elements of four pieces of legislation — eliminates the use of proxy votes in association elections, reduces the threshold for removing a board member and requires HOAs to provide voting by absentee ballot.
Rep. Gray's comments in the AZ Capitol Times article about the problems with HOAs stemming from "rogue boards" and "not caused by the entire board, but by individual elected board members," reflects a bias that pervades the Legislature.
The board as a whole is responsible for the governance of the HOA, not the president and definitely not the hired hand management firm. An individual board member does not control the board. It's the apathy, the noninvolvement of "conscripted" board members who violate their fiduciary duties that allows the dominant member to control the board for his personal agenda. No, the problem stems from a defect in the HOA scheme and the failure of the Legislature to protect the rights of homeowners by instituting enforcement penalties and sanctions against boards and directors. The can range from a prohibition on serving as a board member, officer, or committee person for 2 - 5 years, to civil penalties, to Class 2 misdemeanors.
The following is an excerpt from an email exchange reflecting the board's "nose up" to the statutes and governing documents. Well known CAI member attorneys, often speaking before the Legislature, represent the HOA and clubs. -------------------------------------------------------
Sent: Monday, August 01, 2005 10:19 AM Subject: Re: Request To Inspect/Copy Records
Since the only way to force a Terravita Board to disclose Books and Records may be to sue them at a cost upwards of five to seven thousand dollars, perhaps they feel safe in ignoring such requests. After all they can simply pay their attorney fees out of the kitty while you, as you know, must foot the bill individually.
----- Original Message -----
Sent: Monday, August 01, 2005 8:30 AM Subject: Request To Inspect/Copy Records
HRW:As a resident of Terravita since March 1996, you are undoubtedly aware of TCC's checkered past with respect to federal, state, county and municipal compliance issues, its most recent compliance issues with Maricopa County's Environmental Services Department and likely future issues with these and/or other agencies.
As Secretary of the country club board familiar with compliance issues, you may
find the following e-mail messages (5) more disturbing than simply curious. TCC has been non-responsive to the July 25, 2005 request notwithstanding the July 28, 2005 reminder and two inquires of TCC's counsel. Excepting the July 25, 2005 request, the reminder and inquires are not required by statute. The statement, "We are in receipt of your request postmarked July 26, 2005," is not relevant to the request and is absolutely false..
TCC's compliance with the law is not voluntary.
If you believe this example (and/or others) may resonant with select members of the Legislature sympathetic to the plight of the individual member in an association/non-profit corporation, please feel encouraged to share it with them.
Counsel: Notwithstanding your client’s curious e-mail message of 8:42 AM this date, “ We are in receipt of your request postmarked July 26, 2205,” at COB (5:00 PM) this evening they remain non-responsive and non-compliant to the July 25, 2005 records request.
___________________________________________________ AHLIS Legal Information eEditorials Citzens for Constitutional Local Government George K. Staropoli http://pvtgov.org
Continuing
grand wisdom from the Condo King, a charter member of the Gang That Can’t Shoot
Straight
(see Cyr, 07/25/05 below)
CAI Message Board:
Proxies assigned to a BOD
Posted by:
rpallen on 07/24/2005
The association I manage is in a resort area with 100% absentee owners, so most
owners don't know one another. Given this situation, we depend heavily on
proxies to be able to hold the meeting. Since most owners don't know anyone in
the area to whom they can assign their proxy, we get a lot of proxies assigned
to the BOD or the president of the BOD (by title, not by name). There was some
contentious debate at the last annual meeting on how these proxies are voted
and the board would like to establish a policy so that the owners know how
these proxies will be voted so that it doesn't appear the BOD is engaging in
"smoke-filled room" shenanigans. Any ideas on possible policies?
Thanks. Randy
Posted by: joevella on 07/24/2005
A proxy and/or ballot by mail voting system, utilizing standard forms, should
be established to prevent the leadership of the association from being
hamstrung in making important decisions, especially where an extraordinary
majority is required, as for the amendment of governing documents or the
borrowing of money. This system is especially important where there are a
number of absentee owners, either investors or those whose occupancy is
seasonal or irregular, such as in a retirement or resort project.
Realistically, any quorum requirement in excess of 20 to 25 percent of the
authorized votes may be difficult to achieve, even with proxy or mail votes.
The meeting where the board deliberates where to place the
proxies must be noticed to all and made public. The reasons which weighted the
boards decision (s) could be summarized, published and distributed.
Posted by:
rpallen on 07/24/2005
Thanks, joevella. The dispute arises more from election of directors than other
decisions. Though we try to have all of the candidates known beforehand, we do
allow floor nominations. Currently, once the election is underway, the board
"retires to an anteroom" to vote the proxies they have. Many owners
think this places too much power in the BOD to keep people on the board they
like and not get fresh people with new ideas. I am leaning toward recommending
a policy where the BOD treats the proxies as "for quorum purposes
only" and doesn't vote them, ie abstains for those proxies. That will give
more power to the people who attend the meeting and reduce the undue influence
of the BOD. As it stands now, the BOD usually has so many proxies, they can
determine the outcome any vote, despite how the members present vote.
Posted by: artcyrsmca on 07/24/2005
randy,
Allowing the handful of people who can attend the Annual
meeting being the only ones to be able to vote is a TERRIBLE idea.
That in essence takes all voting power away from other Owners
and grants super voting ststus to a few. NOT allowable in my book.
Almost every set of documents either grants an Owner to vote
by absentee ballot or by proxy.
Because of the lack of attendance in most associations,
voting by prior ballot or proxy happens by 25%-50% of owners. As long as there
is ample time & opportunity for anyone to run for office and contact all
potential voters (owners).
If for example, Mary Jones who lives in unit 13 wants to run
for the BOD, she can mail out a flyer to all owners stating so and asking for
their proxy or ballot.
Your new rule would either make that impossible, or make any
BOD proxy unfair.
Art Cyr - CT
Posted by:
rpallen on 07/24/2005
Art, Actually, the way the situation is now, we have the situation you describe
where super voting status IS held by a few-the BOD-because they hold so many
proxies granted by people who have no idea who else they can grant them to. It
is that situation we are trying to correct Perhaps I was not as clear as I
could have been. The rule we are considering would not preclude any of the
things you mentioned. The rule making proxies for quorum purposes only would
only apply to proxies that name the BOD or an officer of the board-by title,
not name-as the proxy holder. Any proxy with an individulas name would not be
effected. In your example of Mary Jones, she could still do as you suggested.
And she wouldn't have to worry about the board members ganging up against her
because they hold so many proxies.
Posted by: artcyrsmca on 07/24/2005
Randy,
Sorry, what you're proposing STILL dis-infranchises some
owners. Right or wrong, they are telling the BOD to do what they think is best
for the association.
ANYBODY that wants a different result needs to do some hard
work within the framework established in your CC&Rs.
I can't tell you how many people in associations use that
complaint, but don't want to make the effort to run or win. Thats BS.
Art Cyr - CT
Posted by: rpallen on 07/25/2005
Art, I disagree that our proposal disenfranchises anyone. The rule would be
published and all owners would be informed of the options available to them.
These would include naming a board member-by name-and that board member would
be able to vote that proxy. They could also submit a designated proxy, that is
a proxy which instructs the person holding it how to vote. So they would have
options available to them to either vote the way they want or to give the proxy
to an individual, even a board memeber, to vote. It is my experience that most
people-not all, but most-who send in a proxy designated to the board rather
than an individual, do not know who is running and couldn't cast an informed
vote anyway. They don't do this so much because they have any tremendous faith
in the board, but just so that the association meets the quorum requirement and
can conduct business. At our last meeting, when we counted the vote for the
vacant director position, one person had an overwhelming majority of the votes
of the people in attendance at the meeting. However, when the board's proxy
votes were added in, this individual lost by a small margin. The board had
voted overwhelmingly for the other candidate-primarily because they like him
and dislike the other candidate. The owners who attended the meeting felt
disenfranchised because the board, not the owners, controlled the outcome of
the election.
Posted by: joevella on 07/25/2005
I understood what the difficulty is that is why I wrote: "The meeting
where the board deliberates where to place the proxies must be noticed to all
and made public. The reasons which weighted the boards decision (s) could be
summarized, published and distributed."
In many associations the board selects where to vote the
proxies. My suggestion is to make that procedure public. Let the arguments pro
and con be subject to the light of day. Transparency becomes clear and
discourages trustees from selecting friends, creating distortions, being
political or vengefull.
Posted by: Samantha on 07/25/2005
Following far too many years of boards of
directors’ abuse of voting proxies in Arizona, the Forty-seventh Arizona
Legislature passed House Bill 2154, signed into law by the Governor on May 9,
2005, prohibiting votes cast pursuant to a proxy:
33-1812. Proxies; absentee ballots; definition
A. NOTWITHSTANDING ANY PROVISION IN THE COMMUNITY DOCUMENTS,
AFTER TERMINATION OF THE PERIOD OF DECLARANT CONTROL, VOTES ALLOCATED TO A UNIT
MAY NOT BE CAST PURSUANT TO A PROXY. THE ASSOCIATION SHALL PROVIDE FOR VOTES TO
BE CAST IN PERSON AND BY ABSENTEE BALLOT AND MAY PROVIDE FOR VOTING BY SOME
OTHER FORM OF DELIVERY. NOTWITHSTANDING SECTION 10-3708 OR THE PROVISIONS OF
THE COMMUNITY DOCUMENTS, ANY ACTION TAKEN AT AN ANNUAL, REGULAR OR SPECIAL
MEETING OF THE MEMBERS SHALL COMPLY WITH ALL OF THE FOLLOWING IF ABSENTEE
BALLOTS ARE USED:
1. THE ABSENTEE BALLOT SHALL SET FORTH EACH PROPOSED ACTION.
2. THE ABSENTEE BALLOT SHALL PROVIDE AN OPPORTUNITY TO VOTE
FOR OR AGAINST EACH PROPOSED ACTION.
3. THE ABSENTEE BALLOT IS VALID FOR ONLY ONE SPECIFIED
ELECTION OR MEETING OF THE MEMBERS AND EXPIRES AUTOMATICALLY AFTER THE
COMPLETION OF THE ELECTION OR MEETING.
4. THE ABSENTEE BALLOT SPECIFIES THE TIME AND DATE BY WHICH
THE BALLOT MUST BE DELIVERED TO THE BOARD OF DIRECTORS IN ORDER TO BE COUNTED,
WHICH SHALL BE AT LEAST SEVEN DAYS AFTER THE DATE THAT THE BOARD DELIVERS THE
UNVOTED ABSENTEE BALLOT TO THE MEMBER.
5. THE ABSENTEE BALLOT DOES NOT AUTHORIZE ANOTHER PERSON TO
CAST VOTES B. VOTES CAST BY ABSENTEE BALLOT OR OTHER FORM OF DELIVERY ARE VALID
FOR THE PURPOSE OF ESTABLISHING A QUORUM.
C. NOTWITHSTANDING SUBSECTION A OF THIS SECTION, AN
ASSOCIATION FOR A TIMESHARE PLAN AS DEFINED IN SECTION 32-2197 MAY PERMIT VOTES
BY A PROXY THAT IS DULY EXECUTED BY A UNIT OWNER.
D. FOR THE PURPOSES OF THIS SECTION, "PERIOD OF
DECLARANT CONTROL" MEANS THE TIME DURING WHICH THE DECLARANT OR PERSONS
DESIGNATED BY THE DECLARANT MAY ELECT OR APPOINT THE MEMBERS OF THE BOARD OF
DIRECTORS PURSUANT TO THE COMMUNITY DOCUMENTS OR BY VIRTUE OF SUPERIOR VOTING
POWER. ON BEHALF OF THE MEMBER.
Further, HB 2154
made the removal of a member of the board of directors with or without cause
less onerous on the members:
33-1813. Removal of board member; special meeting
A. NOTWITHSTANDING ANY PROVISION OF THE DECLARATION OR BYLAWS
TO THE CONTRARY, THE MEMBERS, BY A MAJORITY VOTE OF MEMBERS ENTITLED TO VOTE
AND VOTING ON THE MATTER AT A MEETING OF THE MEMBERS CALLED PURSUANT TO THIS
SECTION AT WHICH A QUORUM IS PRESENT, MAY REMOVE ANY MEMBER OF THE BOARD OF
DIRECTORS WITH OR WITHOUT CAUSE, OTHER THAN A MEMBER APPOINTED BY THE
DECLARANT. FOR PURPOSES OF CALLING FOR REMOVAL OF A MEMBER OF THE BOARD OF
DIRECTORS, OTHER THAN A MEMBER APPOINTED BY THE DECLARANT, THE FOLLOWING APPLY:
1. IN AN ASSOCIATION WITH ONE THOUSAND OR FEWER MEMBERS, ON
RECEIPT OF A PETITION THAT CALLS FOR REMOVAL OF A MEMBER OF THE BOARD OF
DIRECTORS AND THAT IS SIGNED BY THE NUMBER OF PERSONS WHO ARE ENTITLED TO CAST
AT LEAST TWENTY-FIVE PER CENT OF THE VOTES IN THE ASSOCIATION OR ONE HUNDRED
VOTES IN THE ASSOCIATION, WHICHEVER IS LESS, THE BOARD SHALL CALL AND PROVIDE
WRITTEN NOTICE OF A SPECIAL MEETING OF THE ASSOCIATION AS PRESCRIBED BY SECTION
33-1804, SUBSECTION B.
2. NOTWITHSTANDING SECTION 33-1804, SUBSECTION B, IN AN
ASSOCIATION WITH MORE THAN ONE THOUSAND MEMBERS, ON RECEIPT OF A PETITION THAT
CALLS FOR REMOVAL OF A MEMBER OF THE BOARD OF DIRECTORS AND THAT IS SIGNED BY
THE NUMBER OF PERSONS WHO ARE ENTITLED TO CAST AT LEAST TEN PER CENT OF THE
VOTES IN THE ASSOCIATION OR ONE THOUSAND VOTES IN THE ASSOCIATION, WHICHEVER IS
LESS, THE BOARD SHALL CALL AND PROVIDE WRITTEN NOTICE OF A SPECIAL MEETING OF
THE ASSOCIATION. THE BOARD SHALL PROVIDE WRITTEN NOTICE OF A SPECIAL MEETING AS
PRESCRIBED BY SECTION 33-1804, SUBSECTION B.
3. THE SPECIAL MEETING SHALL BE CALLED, NOTICED AND HELD
WITHIN THIRTY DAYS AFTER RECEIPT OF THE PETITION.
4. FOR PURPOSES OF A SPECIAL MEETING CALLED PURSUANT TO THIS
SUBSECTION, A QUORUM IS PRESENT IF THE NUMBER OF OWNERS TO WHOM AT LEAST TWENTY
PER CENT OF THE VOTES OR ONE THOUSAND VOTES, WHICHEVER IS LESS, ARE ALLOCATED
IS PRESENT AT THE MEETING IN PERSON OR AS OTHERWISE PERMITTED BY LAW.
5. IF A CIVIL ACTION IS FILED REGARDING THE REMOVAL OF A
BOARD MEMBER, THE PREVAILING PARTY IN THE CIVIL ACTION SHALL BE AWARDED ITS
REASONABLE ATTORNEY FEES AND COSTS.
6. THE BOARD OF DIRECTORS SHALL RETAIN ALL DOCUMENTS AND
OTHER RECORDS RELATING TO THE PROPOSED REMOVAL OF THE MEMBER OF THE BOARD OF
DIRECTORS FOR AT LEAST ONE YEAR AFTER THE DATE OF THE SPECIAL MEETING AND SHALL
PERMIT MEMBERS TO INSPECT THOSE DOCUMENTS AND RECORDS PURSUANT TO SECTION
33-1805.
7. A PETITION THAT CALLS FOR THE REMOVAL OF THE SAME MEMBER
OF THE BOARD OF DIRECTORS SHALL NOT BE SUBMITTED MORE THAN ONCE DURING EACH
TERM OF OFFICE FOR THAT MEMBER.
B. FOR AN ASSOCIATION IN WHICH BOARD MEMBERS ARE ELECTED FROM
SEPARATELY DESIGNATED VOTING DISTRICTS, A MEMBER OF THE BOARD OF DIRECTORS,
OTHER THAN A MEMBER APPOINTED BY THE DECLARANT, MAY BE REMOVED ONLY BY A VOTE
OF THE MEMBERS FROM THAT VOTING DISTRICT, AND ONLY THE MEMBERS FROM THAT VOTING
DISTRICT ARE ELIGIBLE TO VOTE ON THE MATTER OR BE COUNTED FOR PURPOSES OF
DETERMINING A QUORUM.
The Arizona Legislature continues to recognize and seeks to
balance the rights of individuals in associations.
Posted by: artcyrsmca on 07/25/2005
Randy,
You posted above that proxies would ONLY be used to establish
a quorum. That implied to me that an out-of-state Owner basically lost their
vote other than to help achieve a quorum.
Regarding what happened at the last Annual Meeting, you didn't
give any numbers, so let me use my own: In a 100 owner association, 80 owners
are out-of-town. Five BOD members show up, along with 13 Resident Owners who
cast 10 votes for mouthy Jane Doe
to get elected to the BOD. The BOD casts the 25 proxies received for John Smith
because they feel he'd do a better job AND because
they like him and dislike the other candidate. So this SUPER
majority (10) of attendees that represent only 10% of the association didn't
get their way. Too darn bad.
As far as the
overkill info from AZ, while they have outlawed proxies, the absentee ballot
system is very similar in results. And in another year or two they'll try to
patchwork another set of laws to accomplish that noble goal of hamstringing
associations into oblivion. That's the "homeowner advocates'" goal.
(Watch them post THAT on their message boards and complain. Those sites aren't
any more 'balanced' than the AZ legislative intent.
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