Carefree Unity placed an ad in the January 19 edition of the Sonoran News. We are reproducing it here as a post with additional explanatory information (in green) for the benefit of our website followers.
Carefree Water Consolidation Project
Boulders HOA Litigation Impacts Timing
About a thousand Carefree residents are anticipating improved water service at the completion of the Carefree Water Consolidation Project. Work is progressing on portions of the project, but one major element has experienced substantial delays due to litigation by the North Boulders Homeowners Association (BHOA).
This past April the Town of Carefree filed an eminent domain action to acquire a portion of BHOA common land for the purpose of constructing a water reservoir as part of the Project.
The BHOA has resisted. The Town’s condemnation filing stated that the Project was a proper public purpose, that acquiring the property was necessary for that purpose, and that doing so was most compatible with the greatest public good and the least private injury
(This language is taken from pages 2 & 3 of Plaintiff’s Complaint and Application for Immediate Possession, Town of Carefree, Plaintiff, filed April 23, 2021).
BHOA court filings reviewed by Carefree Unity contested none of those statements
(indeed, the BHOA replied, “The UCFD public agenda for the UCFD board meeting of February 9, 2021, provides conclusive evidence that the Water Tank was needed by the Water Company” an apparent concession that the requirements of condemnation had been met; Failure to Prosecute This Action in the Name of the Real Party In Interest Pursuant to Rule 17, The Boulders Homeowners Association, Defendants, filed July 7, 2021.)
Instead, the BHOA has argued that it is “unconstitutional and illegal” for the Town of Carefree to condemn the property for the eventual use of Carefree Water
(“…the Town cannot satisfy the requirements of public use and necessity since it will not be using the water tank. It is undisputed that the entire water system and all water infrastructure are solely owned by the Water Company. The Town is an improper plaintiff. Its attempt to take immediate possession of the Property is illegal and unconstitutional.” Failure to Prosecute This Action in the Name of the Real Party In Interest Pursuant to Rule 17, The Boulders Homeowners Association, Defendants, filed July 7, 2021).
Since the Town has the right to immediate possession and a condemnation by Carefree Water would not, this appears to be essentially a delay tactic
(“[The Town] has condemned as a favor to the Water Company and UCFD merely to secure immediate possession of the Property, a right the constitution explicitly withholds from the UCFD and the Water Company. The Constitution thereby extends the right against the exercise of immediate possession by the UCFD and Water Company to property owners.” Defendant’s Reply in Support of Failure to Prosecute This Action in the Name of the Real Party In Interest Pursuant to Rule 17, The Boulders Homeowners Association, Defendants, filed July 27, 2021. Since this was the sole benefit identified in their request to replace the Town as plaintiff, the clear implication is that the sole motivation of the BHOA was avoidance of immediate possession, that is, delay).
BHOA attorneys have filed motions in three courts and every ruling issued to date has gone against them.
- Five adverse rulings were made in the condemnation court of Judge Martin on September 29, 2021 [Condemnation granted, Application for Immediate Possession granted, Immediate Possession ordered, Motion to Dismiss for Failure to Join Indispensable Defendants and Plaintiffs denied, Motion to Dismiss for failure to Prosecute this Action in the Name of the Real Party in Interest denied].
- Five more adverse rulings were made in the same Court on November 2, 2021 [Motion for Entry of Partial Final Judgement denied, Motion for a Stay of Proceedings denied, Motion for Preliminary Injunction and Accelerated Hearing denied, Town of Carefree form of Order for Immediate Possession adopted, Town of Carefree Request for Scheduling Conference granted].
- One more adverse ruling was made, again in the same court, on November 17 [Motion to Stay Proceedings and Set Bond Amount denied].
- One adverse appellate court ruling was made on December 2 (Order Denying Interlocutory Stay, Judges Swann, Weinzweig and McMurdie)
- One more adverse appellate court ruling was made on December 15, 2021 (Motion for Stay and Preliminary Injunction denied, Judges Bailey, Perkins and Cruz)
The Board’s strategy appears to be losing, but it is losing slowly.* We estimate water reservoir construction has already been delayed by several months
(construction was approved by Carefree Resolution 2021-15 on September 7, 2021 at the joint Board Meeting of the UCFD and Carefree Water Company. Construction has been held since this date pending removal of legal obstacles),
and it will take at least one more adverse ruling before it can proceed
(Oral argument set by Superior Court Judge Jay Adleman for January 27, 2022, Emergency Motion to Vacate Injunction, Defendant Town of Carefree).
Meanwhile, many Carefree residents continue to wait for improved water. Carefree Water ratepayers wait for increases driven by legal and delay costs. And BHOA residents wait for their Board to stop spending their money without a plausible, articulated plan that respects our neighbors and recognizes that…
We are all in this together!
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