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    Posted October 24, 2009 by
    HOAAbuse
    Location
    Gilbert, Arizona
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    HOA Abuse of Power

     

    Please see our family wesite for specific details:

    http://members.cox.net/perronefamily/index.html

     

    Also please see the ABCNews15 AZ report:

    http://www.abc15.com/news/local/story/Gilbert-family-in-bitter-HOA-battle-over-paint/yzG5_M9_q0iiW17w2MIoYQ.cspx?p=Comments

     

    Our home was painted in 2006 prior to our community receiving the approved paint palette in 2007. We requested the proper Architectural Review Committee (ARC) form from City Property Management (CPM) prior to painting and never received a response, so we painted. Our procedural error. To date, the ARC refuses to approve the paint color of our home.

    Our Home Disapproval Reason:

    "Color inconsistent with any of the original or previously approved colors in the community."

     

    We have pleaded for 3 years to ARC, CPM, the HOA Board and the Boards Attorneys, to stop this harassment and waste of community funds. The only way the FFN HOA Board and ARC will stop wasting community funds is if we paint a new color off the approved Color Palette.

    We will not paint for two reasons, first, we feel we are being singled out, treated differently and held to a stricter standard than others (as you will see) for voicing our opinion in a HOA meeting.

    Second, we have paid 3 different Attorneys to review all of our documentation, the alleged violation letters and community documents and each time learned, we are not in violation.

    The reason we are not in violation:

    FFN Covenants, Conditions & Restrictions (CC&Rs) Article 3, Use Restrictions, 3.1 Architectural Control, 3.1.1. state, In the even the Architectural Review Committee fails to approve or disapprove an application for approval within 30 days, approval is no longer required and this section will be deemed to have been complied with by the owners.

    AZ Law refers to this as Automatic Approval, many CC&R's include an automatic approval provisions to ensure that the ARC decides homeowner submissions quickly. In a community with a 30-day automatic approval provision, the ARC cannot deny the submission if more than 30 days have expired since the homeowner made the submission.

    Our original ARC request for the existing paint color on file in the City Property Management Office displays:

     

    The ARC request displays a ENTERED stamp 11/22/2006, which is the official review start date

    The disapproval of our request on the bottom of the Architectural Request Form is signed by Art Soucek, Brent Hanks, and Mel Stradling and dated 1/4/07.

     

    The time between received stamp date and disapproval signatures and date was 44 days.

     

    The Board argues that the 30 day rule does not apply here as our submittal was "ineligible for review" and the 30 days invalid due to our submittal not having paint samples included.

     

    We have searched the community documents and recorded ARC Meeting Minutes January 19, 2006 to present and there is absolutely ZERO evidence to substantiate the claim any ARC submittal has ever been "ineligible for review" without paint samples.

     

    This demonstrates the Board and ARC are not exercising its powers in a uniform manner and using inconsistent logic with our ARC request. It is possible the "ineligible request" reason, was fabricated as an escape clause so the Board and the ARC could avoid adhering to 3.1.1 in the CC&Rs and dodge approving our ARC request.

     

    The community documents and ARC Meeting Minutes January 19, 2006 to present demonstrate the standard process for FFN ARC requests received without paint samples, have been sent a disapproval letter within the 30 day ARC review time line. The letter advises the homeowner, "Disapproved due to a lack of required paint samples as required and stated in the Architectural Review guidelines booklet and the request form. Resubmit with Paint samples." ( from ARC Meeting Minutes) Our ARC request was treated differently than the rest. Why?

     

    We believe we have been singled out and have not received the same fair, consistent, considerate treatment other homeowners have in relation to paint issues occurring prior to the FFN approved paint palette in 2007. Arizona law requires HOA Boards to act fairly and reasonably in making its discretionary decisions, and HOA Boards cannot selectively enforce its rules against disfavored residents.

     

    AZ Courts generally ask, is the decision , justifiable, reasonable and fair?

    Before realizing that we were being singled out for, we made two offers to resolve the dispute:

    4/10/2007 we offered to paint our home within 5 years or sale of home. The ARC and Board declined our offer.

    4/24/2007 we offered to paint our home within 18 months. The ARC and Board once again declined our offer.

    3/19/2009 we met with the ARC to discuss our request for a one time variance. We reviewed all our information and the ARC Meeting Minutes state:

    Request for variance approval for existing home color denied.

    The ARC felt the original misunderstanding of the submittal process was an invalid defense.

    There wasn't any new information presented to support approving the current color.

    We were trying to place the blame on everyone else and not accept responsibility.

    Our lack of willingness to negotiate a reasonable compromise is contrary to our previous desire.

    The Board and ARC's reasons for our variance denial as documented in the meeting minutes above, is based on personal assumptions and not uniform enforcement. There is not one comment in relation to our color and what logic they are using to deny our request for variance.

     

    On February 5th 2009, as documented in the ARC Meeting Minutes, the ARC granted 5 homes with paint violations that occurred prior to the FFN approved paint palette, a One Time Variance Approval for the color of their home that was previously denied. Only 1 of the 5 homes requested a One Time Variance Approval from the ARC as outlined in the CC&Rs 3.3.19.

    The reason, documented in the ARC Meeting Minutes for the approval of the 4 unsolicited and 1 requested Variance requests:

    "At this time the Architectural Review Committee feels it is in the best interest of the Finley Farms HOA and all Association members to grant you a one time variance approval for your current color scheme."

     

    The ARC's specific documentation required for determining the variances granted was missing CC&R required details ?(i) a restriction would create an unreasonable hardship or burden on an Owner and (ii) that the activity permitted under the variance will not have any substantial adverse effect on the Owners, Lessees and Residents and is consistent with the high quality of life intended for Residents .?

    The arbitrary variances lacked basis and specifics and make granting 5 out of 6 homes a One Time Variance for paint color, selective enforcement.

    4 homeowners were granted a One Time Variance to keep their home color without requesting one.

    The ARC documented their decisions in the 2/5/09 ARC Meeting Minutes, noting, two homes with prior paint issues were offered a prior compromise to repaint only their accents, and since the homeowners chose not to accept the compromise, and the fact the ARC granted variance approvals to the others, it was agreed to go back and grant one time variance approvals to those two as well, leaving only one home left on their list of outstanding 2007 paint issues. (Ours)

     

    We, received a letter from the HOAs' Attorney, Carpenter Hazlewood with specific instructions to submit a formal Variance Request as outlined in the CC&Rs Article III, Section 3.19, which provided the required information needed to determine (i) Unreasonable Hardship, (which we had to share personal information about our disabled son, his continuous hospitalizations, surgeries and the hardship it causes) and (ii) the fact that the color of our home does not have an adverse effect on our neighbors or their quality of life.

    Our One Time Variance Request was submitted on 1/20/2009 to the ARC and Board. We received a denial letter on 2/5/09 because:

    "the color choices submitted fail to conform to the character and color tones use with in the community, and are not in harmony with the master plan of Finley Farms North."

    A variance request is defined as, "to seek approval to deviate from the restrictions", so why would ARC decline a variance request by quoting the restriction the homeowner is asking to deviate from as their denial reason?

     

    Another home had their ARC request denied twice prior to the 2007 FFN approved paint palette, reason: "the base color too dark". The homeowners sent a email to CPM and attended a HOA meeting and the homeowners then received a letter from the ARC chairman overturning their denial, the reason, "What appears to be a deep desire for your color". This selective reason is noted in the meeting minutes and the homeowner gave us a copy of their approval letter.

     

    May 17, 2007, ARC Meeting Minutes notes regarding a very large dark brown home

    "Disapproved. Although this request is disapproved, and the painting was completed without submission of a request, since more than two years has past since the painting was noticed by the Board of Directors, Architectural Review Committee, or Management Company, repainting will not be required. Future painting of the home will require the use of a color scheme from the approved color palette, and submission and approval of a request before work can begin."

     

    This is a large, dark chocolate brown house, very difficult to miss! The 5/17/07 meeting minutes state CPM, HOA Board and ARC are not evenly enforcing CC&Rs throughout FFN community. This color is definitely not consistent with any other homes in the community.

    How can the FFN ARC choose not to enforce the provision with this home, when at this particular time, there were other homeowners with paint violations being pursued and threatened with fines and litigation.

     

    The ARC Meeting Minutes statement noted on 5/17/07, "more than two years had passed since the painting was noticed by the Board, ARC or CPM" this can not be accurate, as documented in ARC meeting minutes 9/13/06, this home needs hardscape on driveway, vehicles being driven on raw dirt to gate." This house had been looked at 7 months earlier.

    We have been stripped of our voting rights.

    The HOA has registered with the Maricopa County Recorders Office a Covenant Violation Lien:

    A Notice of Covenant Violation Lien, is basically a lien. It works much like an assessment lien by placing anyone considering the purchase of the property on notice that the property has a problem that requires resolution. Furthermore, and more importantly, the lien requires the resolution of the covenant violation as a condition of release. When a title company searches the records to provide a title insurance policy to a new buyer it will discover this lien and contact the association or the attorney that filed the lien to determine the action necessary to release the lien.

    We have been fined $100.00.

    We have not asked for anything unreasonable.

       

       

       



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