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Sun City West may shift CC&R enforcement responsibility
Property maintenance violations like this one which has since been cleaned up may become the enforcement responsibility of the Recreation Centers of Sun City West. The rules are now enforced by PORA, but a recent court decision stated PORA has no authority to do so. (Independent Newsmedia, Inc., USA, photo by Jeff Grant)

SUN CITY WEST -- A court ruling upholding a homeowner’s claim that he does not have to pay a fine levied by PORA for a CC&R violation is prompting Recreation Centers of Sun City Westand PORA officials to discuss changing the community’s enforcement system for compliance with the rules.

An association member sued PORA in 2012, claiming the agency had no authority to levy a CC&R fine. The case was argued this year, and a judge agreed.

Neither party appealed Maricopa County Superior Court Judge Randall H. Warner’s Aug. 29 ruling, and the period for appeals has expired, meaning the ruling stands, according to Matthew A. Klopp, the attorney representing the homeowner, Donald Holmes.

However, the ruling means officials must alter the community-wide CC&R compliance enforcement system, Recreation Centers of Sun City West General Manager Mike Whiting told the RCSCW Governing Board at its weekly operations meeting Dec. 2.

“We’re at a point where we either appeal the ruling or revise the system,” Mr. Whiting said.

No decisions yet

No decisions were made on any changes on either of the two options offered by Mr. Whiting to the board.

One possibility would be for rec centers officials to retain PORA personnel for the task of responding to compliance issues. PORA presently uses its executive director, one full-time staff member and two part-time paid individuals to respond to complaints or observed violations, according to Executive Director Connie Scott. PORA uses office space within its headquarters, 13815 W. Camino del Sol, to process the cases.

PORA personnel could continue to use that space, although the possibility of using rec centers space was not ruled out. However, Mr. Whiting pointed out that rec centers space is very limited at present. RCSCW officials recently enacted a year hold on any new charters for clubs, a designation that means granting space to those clubs.

A second option would be to move the entire operation to the rec centers, have RCSCW officials hire staff and find space. But Mr. Whiting noted that plan carries potential problems regarding the latter.

“We don’t have office space,” he said.

Investigating CC&R compliance issues is not totally unfamiliar to the RCSCW. The few cases that cannot be resolved through the normal process begun by PORA eventually make their way to the rec centers and their attorneys. Officials with both organizations said that amounts to less than 10 percent of the cases.

Professional role

A factor involved in the ultimate decision is cost.

While no final figures were determined, it is believed hiring PORA personnel as agents for RCSCW would cost the rec centers less than moving the entire operation to the RCSCW.

“The cost would go up,” Mr. Whiting said, citing legal fees as an example.

Another option would be for RCSCW officials to hire an outside management agency. That also would involve additional costs.

“Law firms do this for communities,” noted Director Kay Williams.

“Let’s not farm it out unless it’s a professional organization,” said Director Dave Wilson.

The present system costs about $100,000 per year to operate, officials of PORA and the RCSCW said.

The rec centers paid PORA $48,000 during the current budget year, which started in July, and PORA came up with the remainder.

The money goes toward salaries, utilities, building maintenance and landscaping, noted Ms. Scott.

PORA Board of Directors President Bill Hansen, noting the growth of the agency’s highly popular adult-learning program as well as other activities, said PORA would need additional office space in about two years.

“CC&Rs takes two of our offices, and we would suggest since the rec centers is maxed out, CC&Rs might have to rent private space,” he said.

Mr. Hansen and Mr. Whiting said PORA is open to either option for the CC&R compliance program. Mr. Hansen said PORA would not suffer financially without carrying out the program nor would it lose its identity. “Fine revenue is totally insignificant to the operational costs of CC&Rs and doesn’t even constitute a percentage point in the PORA budget,” he stated in an e-mail.

PORA is primarily a lobbying agent for Sun City West residents on matters affecting the community before state and county government.

PORA counts among its achievements in recent years convincing Maricopa County officials to build a noise barrier along the community’s northwestern section off Loop 303 and helping block proposed state legislation that would have placed authority for enforcing local parking rules with the legislature.

Last month, the organization enjoyed one of its biggest victories in stopping a plan by APS before the Arizona Corporation Commission that would have reduced the value of homes with solar-energy panels by killing the contract that kept the price down for having that equipment. Under rules adopted by the commission Nov. 14, the contract will remain with the home, even after the unit is sold.

PORA also successfully fought for dead-ending Deer Valley Drive to avoid creating another main arterial road in Sun City West and moving the new El Mirage Road away from the community.

Several weeks

PORA has been handling CC&R compliance cases since the mid-1980s, when Del E. Webb Corp. formally handed the task over to the agency. Violations include a wide variety of items intended to maintain the overall character and appearance of the community. Examples include overgrown weeds, excessive storage of goods in a carport, failing to properly maintain one’s structure and landscaping that does not conform to height requirements.

Violations are usually reported by neighbors or members of the community, or sometimes a local homeowner association official who recognizes them.

Most of the items are corrected within a matter of weeks, said Ms. Scott.

“It’s usually a new homeowner who is not aware of it,” she explained.

Once a complaint is received, PORA sends someone to verify the item. If it is confirmed, the agency sends the homeowner a letter, notifying the party it has two weeks to correct the item. Ms. Scott said most of them are addressed then, but the agency sends out a second and third notice, also waiting two weeks for a response to each.

“If nothing happens, we send a letter, telling them it is possible this can be turned over to the legal department if it is not corrected. Most of the time, we try to work with everyone. Our goal is to get the property cleaned up, not to have bad feelings or turn it over for collection,” she said.

If a case is turned over for collection, it goes to the RCSCW, which turns it over to its attorney.

“I’d say only about two percent of the cases get to that point,” said Mr. Hansen.

In some cases, PORA hires a contractor to address the matter with the intent of billing the homeowner or his or her family when they are located. A rare occurrence, this happens when the matter is deemed a serious enough threat to public health.

Mr. Holmes’ case involved an oleander hedge that had grown beyond the 6-foot limit, according to court documents on file with Maricopa County Superior Court. He was cited and fined but sued, challenging PORA’s authority to fine him, the papers state.

Two homeowners associations

Judge Warner’s ruling notes the CC&Rs for Mr. Holmes residence contemplate two homeowners associations, the RCSCW and PORA, but notes differences between the pair. The RCSCW owns community amenities and its membership is mandatory among homeowners, including Mr. Holmes, who are required to pay assessments to the RCSCW. PORA, on the other hand, carries no automatic membership and its CC&Rs require no assessments paid. Mr. Holmes is not a member of PORA.

“Both Recreation Centers and PORA have express power to enforce restrictions in CC&Rs,” the judge wrote. “Nothing in the CC&Rs, however, authorizes PORA to levy or enforce fines, or obligates homeowners to pay fines to PORA.”

PORA argued the agency’s authority to enforce fines is implied based on its acting on behalf of common-interest community, and therefore has the inherent authority to impose fines on homeowners within its area irrespective any express authority.

But the judge said that was not enough to decide the case in PORA’s favor.

“PORA does not qualify as an ‘association’ under the Arizona statute authorizing associations to impose penalties for violations of the CC&Rs. (A.R.S. 33-1802(1), 1803(B),” he wrote.

PORA’s attorney, Michael Childers, was unavailable for comment. The office routinely does not comment on cases to the news media, according to office personnel.

Curtis Ekmark, founder of Eckmark and Eckmark law firm and author of “Property Manager’s Handbook: A Guide to Arizona Community Association Law,” said he had not seen the ruling and could not comment.

Matthew A. Klopp, the attorney who represented Mr. Holmes, said he saw no wider implication from this ruling.

“This ruling applies only to the parties in this case. Rulings in Superior Court are not binding generally as opposed to an Arizona Supreme Court decision or a Court of Appeals decision,” he said.

Likewise, Mr. Whiting said this is a narrow ruling, applying only to the case.

Mr. Holmes specualted others could follow suit if they find themselves in a similar situation to block PORA from fining anyone over CC&R violations.

“It takes someone to move for an injunction, stipulating they cannot move to collect any fines,” he said.

He would not permit a reporter on his property to photograph the oleanders in question, Mr. Holmes said he was fined $100 every two weeks by PORA for the violation.

“By the time we filed (the lawsuit), there was $300-$400. They claim it is a hedge. I claim it is not. There are literally 10 roles of oleander bushes in this area that are higher than mine.”

News editor Jeff Grant can be reached at jgrant@newszap.com or 623-445-2805.

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