Judge Denies Latest BHOA Motions
Orders Quick Scheduling Conference
Condemned Property Transfer Recorded
Maricopa County Superior Court Judge Daniel G. Martin today filed orders on all outstanding motions of the north Boulders HOA (BHOA). The rulings were favorable to the Town in all instances:
· Regarding two of the motions, “the Court adopts the legal analysis set forth in the Town’s October 6, 2021 response.”
o BHOA motion for Stay of Proceedings, is denied.
o BHOA motion for preliminary injunction and request for preliminary hearing, is denied.
· Regarding the BHOA motion for Partial Final Judgement (to facilitate early appeal of rulings not related to property compensation), the Court instead “adopts and will enter the Town’s proposed form of order.”
· Regarding a Town request for a scheduling conference, “IT IS ORDERED setting this matter for a scheduling conference on November 17, 2021, at 8:30 a.m.”
We believe the scheduling conference is set for a date sooner than would be typical. No reason was given, but the Judge is aware that the Town could seek compensation from the BHOA should BHOA legal actions engender expensive construction delays.
The Court also adopted and entered the Town’s proposed form of order for immediate possession of the condemned property. The property is therefore now a property of the Town as recorded by the Maricopa County Recorder’s office.
The primary item left to be litigated will be compensation to be paid by the Town to the BHOA for condemnation of the property. In that phase, the BHOA will be asked to provide its appraisal or valuation of the property (the Town has already done so).
.As reported previously, the BHOA Board reported in September that its legal expenses were then about $100,000. It is unclear how much they have grown since or how high they may ultimately become
Mayor Peterson’s Communication to BHOA President Pistillo
Admin: Subsequent to the October 29 BHOA Board meeting, Mayor Les Peterson emailed the letter below to BHOA President Bernie Pistillo. He informs President Pistillo that he is also forwarding it to Carefree Unity with the intent that we distribute to our subscribers.A
In the letter, the Mayor:
- Thanks the President and the BHOA Board for withdrawing “personal and incorrect statements” made by a BHOA Director about Town officials and a family member.
- Takes issue with the Association’s refusal to take responsibility for the statements made by one of its Board members and posted to its website.
- Requests the re-posting of a letter apparently removed at the same time as the Director’s statements. The letter was from former BHOA President Phil Clement.
- Informed President Pistillo that the Town stated in its most recent Court filing it would likely seek a bond and ultimately reimbursement from the BHOA for lost revenues and increased project costs incurred as a result of BHOA appellate actions, including its request for a stay of construction, should the Town ultimately prevail.
- Addressed comments that he heard in the October Board meeting implying, he believed, that eventual commercialization of the west side of the Boulders might someday be initiated by the Town:
- The Mayor asserted the Town “has absolutely no intention of initiating, promoting, or accepting additional commercial development” along Tom Darlington between Bloody Basin Road and the Carefree / Scottsdale border (just south of the “Welcome to Carefree” sign).
- He also detailed the obstacles to commercial development of this property by any party at any point in the future, writing “the roadblocks to doing so would be enormous.”
We have emailed President Pistillo and BHOA attorney Mulcahy, and will inform our subscribers if they have any factual disputes with the content of the email, which is reproduced in full below:
Les Peterson Saturday, Oct.30 4:11 PM
To: Bernie Pistillo
cc: Steve Prokopek, Stacy Bridge-Denzak, Gary Neiss, Greg Crossman, Carefree Unity
Mr. Bernie Pistillo, President, Boulders Homeowners Association 10/3
Dear Mr. Pistillo,
Thank you for your service as President to the north Boulders Homeowners. Having spent three years in this same position, and six years on the Board, I readily recognize the conflicts and personal tolls that go along with the office. Your first six month have been very full.
I would like to comment upon some of the comments made by you and others in the BHOA’s Membership meeting of Friday, 10/29. I did not think it appropriate to interrupt your meeting, but I think that we need to set the record straight rather than let some statements made stand unchallenged on three of the major areas. To that objective,
Withdrawing incorrect statements: First, thanks to you and all of the BHOA Board for withdrawing the personal and incorrect statements about me and a family member made by BHOA Director Don Schwarzkopf. His insinuations that I and my son may have been or maybe are personally involved in some of the development activities for the NW corner of Tom Darlington and Carefree Highway, and that we may possibly personally benefit from those activities, are totally untrue and totally unfounded.
But, related to this subject although not addressed in the Membership meeting, I thought that the response from the BHOA’s attorney, Beth Mulcahy, to the Town’s insistence that Mr. Schwarzkopf’s mis-statements be taken down was not appropriate. It is standard practice for a professional organization to verify the accuracy of anything it communicates to others under the umbrella of its organizational name. But, to quote Ms. Mulcahy in her response to the Town’s attorneys objections to what your organization published, “. . . the Association denies that it has any responsibility for the statement posted by Don Schwarzkopf . . .”. I think that it is generally accepted practice in professional organizations that if an organization sends out a communication to their membership using their mailing list, and/or posts a statement on their official website, the organization is responsible for verifying the the accuracy of the facts underpinning the statement, and, once published, the organization owns that statement as much as if they made it directly and personally.
I also think that Phil Clement’s letter should be reposted on the BHOA website. After fact checking, either publish all of the letters from residents received, or publish none of them. Censorship does not belong in our community.
I would also appreciate a reduction in the emotional rhetoric being used in communications being issued by the BHOA. Statements such as “The Town in its complaint has attempted to deceive even the Court . . “, have no place in professional communications, particularly when a Judge has review the very facts called into question and accepted them.
Incomplete discussion of the BHOA’s potential liability regarding your appeal of the Judge’s decision seeking, among other things, to stop construction of the water storage reservoir until all of the legal actions in this matter are completed: In your discussions of the BHOA;s filings contesting the Judge’s decision, you stated that you had not yet read the Town’s filings in response to the BHOA’s appeal. If you would have done so, you may have noticed that the Town indicated that should the BHOA prevail on its appeal of the Judge’s preliminary decision, the Town would very likely request of the Court that the BHOA be required to post a bond to reimburse the Town for lost revenues and increased costs should the Town prevail when the valuation portion of the overall legal action is concluded in 12 to 18 months. The amount bonded, among other things, would be to recover lost revenues to the Carefree Water Company from delays in bringing the new users into the Water Company’s system and increased construction costs that it might incur as a result of construction delays. If you have not yet had an opportunity to review the Town’s response to your recent filings addressing this point, I have attached it for your review.
Mis-statements about the Potential for Commercial Development along Tom Darlington Road adjacent to the Boulders: You mentioned that you, another Board member and a number of other north Boulders homeowners attended a preliminary meeting with Carefree Economic Development Director, Steve Propokep, and Planning Director, Stacey Bridge-Denzak, discussing some potential changes to the Carefree General Plan of Development which will be offered up for a vote to Carefree registered voters once the Town has incorporated residents input.
When prompted by one of the other people who also attended this same Carefree meeting, the two of you offered your interpretation that Mr. Propokep had stated that at some point in the future Tom Darlington Road – all of the way south from the Downtown Carefree area along the west side of the Boulders/east side of Tom Darlington road up to the “Welcome to Carefree” sign (the Carefree border with Scottsdale for ownership of the road) – could be reduced to a two lane road. Then, you continued, at some future date the Town could condemn and develop additional property on the west side of the Boulders adjacent to the then unused portion of Tom Darlington Road and turn it into commercial property.
If said, this was a mis-statement, for this was certainly not what was intended to be communicated. Also, it could be that what was stated was not crystal clear to those listening, or what was actually said may have been misinterpreted. Whatever way it was doesn’t matter, but we need to clear up any misconception that arose.
The Town of Carefree has absolutely no intention of initiating, promoting or accepting additional commercial development along Tom Darlington Road south of where it currently exists in the Downtown Carefree area (which is just south of the Basha’s center). To suggest that the Town is considering, planning and/or seeking to facilitate such development is absolutely untrue!
The Town has discussed reducing a limited section of Tom Darlington Road to a two lane road only for that portion of this roadway immediately adjacent to the downtown Carefree area (extending only as far south as just to the south of the Basha’s Shopping Center). This area is already zoned commercial. The Town has never considered or discussed extending commercial zoning any further south that that just mentioned. The rationale for considering the reduction of Tom Darlington Road to a two lane roadway in that area would be for 1) help to slow down what has become excessive speeding in the Downtown Carefree area, 2) increased pedestrian safety for people walking across the road in that area to get from the apartments across the road in to and returning from the downtown area, 3) additional parking for activities in the downtown area and 4) to help create more of a sense of entry into the downtown Carefree area.
Please also keep in mind that the Town is prohibited by law from using its powers of eminent domain for commercial purposes – it can only use them for demonstrated public good. Additionally, the open space property in the west Boulders is not zoned for commercial usage. Since, in the instance under discussion, the property couldn’t be condemned for commercial purposes, the only way it would come before the Town for changes in zoning would be at the request of the owner – the Boulders Homeowners Association. Further any changes considered by the current or any future Town Council would first have to come before all Carefree registered voters for a vote on a major change to the General Plan, and then come before Planning and Zoning Commission and finally, to the Town Council. No one that I know has any desire to commercialize this land, and the roadblocks to doing so would be enormous.
Mr. Pistillo, I would appreciate your forwarding this letter to the other members of the board and north Boulders residents. I will also be forwarding it to Carefree Unity for distribution to their subscribers.
I would appreciate the opportunity to sit down and talk through our differences in a reasonable and respectful manner. Thank you.
Les Peterson, BHOA resident, Carefree Mayor
BHOA Declines Open Meetings Document Request
Carefree Unity recently filed a public document request (by statute, an ‘examination’ request) to the North Boulders Homeowners Association (BHOA) for documents relating to BHOA compliance with Arizona Open Meetings laws. To ensure it was properly drafted, we hired an attorney to prepare appropriate language and deliver the request on our behalf. The BHOA declined to provide the requested documents on the grounds that they could not verify we were entitled to them and asked for the individual names of our attorney’s clients.
We know the Board follows our website (https://carefreeunity.com/), and believe they understand Carefree Unity is a group of more than twenty former Directors of the BHOA. We further believe they can reasonably conclude that at least some of us must be current BHOA residents (in fact, more than twenty of us are).
By policy we act as a group, avoid personal attacks, and do not publish the names of individual members. Our reason for adopting this policy was to try to break free of the personal attacks and character assassinations that we believe have often replaced rational discussion in our community. While we did not verify the BHOA response wording was intentional, we are quite suspicious of any request to identify all our members.
We are disappointed in the Board’s refusal, then, both because we believe they are reasonably certain we are entitled to disclosure by statute, and also because there is no legal prohibition to sharing the information even with non-residents in the public interest if they wish.
Of course, we do wish to resubmit the request, but in a way that doesn’t violate our policy against identification of individual members. A resident of the BHOA, not a member of Carefree Unity, has stepped forward to re-submit our request in his own name. We thank him for doing this in the interests of all BHOA residents and look forward to reporting on this further as information becomes available.
Water Reservoir Developments
There have been several significant developments since the 9/24/21 Superior Court ruling by Judge Daniel Martin (filed on 9/29) granting the application for immediate possession by the Town of Carefree. We are consolidating and reporting these developments in this post.The Town has satisfied the requirements in Judge Martin’s order and has taken possession of the property intended for the future water reservoir installation, formerly in the north Boulders HOA (BHOA) common area.
The BHOA filed two motions on Friday, 10/01/21 with Judge Martin:
1. A request for partial final judgement on the condemnation case
2. A request for stay of the Judge’s ruling granting immediate possession to the Town
BHOA attorney Dale Zeitlin concedes the Town of Carefree has won the condemnation case, with only the issue of compensation left to be decided. In the motion requesting partial final judgement, he writes:
“The reason partial judgment is appropriate is because the Court has determined that the Town of Carefree is the real party in interest and the proper plaintiff and has the requisite public use and necessity to exercise the power of eminent domain. There is nothing left to litigate regarding these issues. The sole remaining issue is the amount of recovery.”
The stated reason for the request is to allow appeal of some or all of Judge Martin’s rulings, since appeals generally cannot be filed in advance of a final judgement.
In a separate request, the BHOA asks Judge Martin to stay the order of immediate possession “until such time as the Court enters either a partial final judgment that can be appealed or allows the BHOA the opportunity to file a special action to the Court of Appeals.”
As of this writing, the Court has taken no action on the BHOA requests.
Meanwhile the Water Company, relying on the Town’s possession of the property, today started preparation work for eventual construction:
o Property Boundary Survey
o “As received” property documentation
§ Native Plant Inventory
§ Drone Flyovers
Admin: Today, Daniel G. Martin, Judge of the Superior Court of Arizona, has issued orders relating to the parcel of BHOA common area identified by the Town of Carefree as the desired future location of a 300,000 gallon water tank to serve the newly expanded Carefree Service Area for the Carefree Water Company.
The Judge’s Orders:
- The Town of Carefree’s application for condemnation of the referenced parcel has been granted
- The Town is granted immediate possession of the parcel upon posting of a $20,100 bond
- Motions brought by the BHOA contesting these actions are dismissed.
Readers can expect future updates as events dictate.
A letter from Phil Clement
Admin: Longtime resident and former BHOA President Phil Clement sent the following letter to the Board on Monday, September 13. In his email, he requested that the Board post the letter to the BHOA website.
It has now been more than a week since Mr. Clement’s email, and the Board has so far continued its recent practice of making no response to such requests. Mr. Clement has therefore agreed that Carefree Unity would publish it to make its contents available to residents.
An open letter to the Board of Directors, Boulders Home Owner’s Association:
In your last note to the community, you stated the board members did not agree amongst themselves about the motivation of community members to disagree with the board’s position on the water tank. Let me express my personal reasons. While I certainly prefer that the town had chosen an alternative location, I do not believe the level of objection and the criticism leveled at previous board and their supporters is warranted.
- Most importantly, I do not agree that the proposed water tank represents a significant threat to property values in the Boulders. I have asked realtors, who sell in the Boulders, if the disclosure of the proposed tank has impacted prices or sales. The answer has been “no.” As the co-owner of 3 lots, who has been here for over 25 years, I believe the board is making a mountain out of a water tank.
- At least one member of the board has criticized the engineer’s qualifications and the work done by her for the town/water company. I know of no reason to believe that individual is a better engineer than a professionally qualified one. Therefore, I do not accept his criticism.
- In communications from the board and an individual member of the board, there have been insinuations and accusations of town/water company designs for expansion of the proposed property. I personally do not find any evidence of any such conspiracy.
- You continue to characterize the previous board’s handling of the situation using highly emotional and judgmental terms, such as “pro town”. My own opinion is that while not as strident as your opposition, the previous board is being unfairly criticized. It is also my opinion that engaging in such descriptions is a tactic used by people who do not have confidence in their facts. Personal disclosure: my wife was a member of the previous board and does not qualify as pro town.
Based on the above, I conclude you have wasted your time and introduced great dissention into our community over a situation that does not warrant either the attention or acrimony. I suspect I am not alone for disagreeing for these reasons.
Philip A. Clement
Upcoming Board of Directors Meeting-Friday, September 17th
From the Boulders North HOA Webpage:
Les Peterson Email Update
Admin: Mayor and former BHOA President Les Peterson submitted a Water Storage Reservoir status update on July 24 to both the BHOA and the OABS. The OABS sent it out to their residents three days later. The BHOA has yet to send it out to their residents, in spite of an additional request to them. This update was being published as a public service since it provided a status report at that point in time.
Message From Mayor Peterson:
A recap of the Carefree Water Reservoir Situation
I would like to address some of the comments being circulated opposing the proposed site for the underground fresh water storage reservoir in an existing utility easement along Tom Darlington Road in the Boulders community.
First, 1000 plus Carefree residents living on the south and west sides of Carefree have a real problem with their existing water service with no representation to address their issues. Something had to be changed. The Carefree Water Company and outside engineering professionals evaluated all reasonable solutions, and determined that integrating those accounts into the Carefree Water Company system was the best long-term solution.
Utility infrastructure has to go somewhere in the community it serves. For this integration to proceed, it required one additional water storage reservoir to service the expanded Carefree Water system. On a comparative basis, this additional required reservoir is relatively small relative to the buried one million gallon reservoir already in Carefree. Reservoirs function to provide additional water to accounts during heavy usage times, and for fire service throughout the entire system. Reservoirs typically are placed in sites at a higher elevation than the areas they service to take advantage of gravity. For example, water service for the Boulders subdivision is currently supplied through a reservoir located at a higher elevation in another subdivision to the north of the Boulders.
Siting a reservoir is always a complex process. Functional system operating requirements are paramount, closely followed by the desire to locate any new reservoir as far away as possible from nearby residences. Costs, both construction and on-going operating costs, are also very important as these will be factored into therate base and charged to all users of the system. The guiding principle Carefree follows is to provide the greatest benefits to the most residents while causing the least impositions to the fewest residents, and at the lowest cost.
Professional engineers evaluated 32 site locations in Carefree against key criteria, and singled out the site in the Boulders utility easement as the only one meeting all of the established criteria. Reports from people not involved in this evaluation claiming that there were other potentially “better” sites than the identified site in the Boulders property – and that some of these other sites were free, are unfounded and untrue. Further supporting the usage of this site was that the Carefree Water Company had an existing utility easement and existing water infrastructure at this specific location.
Working cooperatively with the previous Boulders HOA Directors, the Carefree Water Company agreed to locate the reservoir as far away from existing residences as possible, to bury the reservoir underground and landscape over and around it. In essence, maintain the open desert appearance from any nearby residence.
The Carefree Water Company and the Town are now faced with the criticism from some of the residents of the Boulders that the Town is not representing them if the Water Company did not abandon the reasoned plans of the professional engineers and place the reservoir in another location. We should all realize that no decision in a democracy is 100 – 0. Where were these Boulders residents when the hundreds of residents from south and west Carefree came forward in person and/or in letters during the last four years? Further, the primary issue in the last two Carefree elections was about the integration of all of Carefree’s residents into the Carefree Water Company system, and the candidates in support of this action won overwhelmingly, and the others lost. This is what a community’s elected leaders promised to do and what is being delivered – it is responsive government.
We have requested the professional engineers a number of times now to revisit and re-examine their recommended site for the reservoir. We asked them if there was any other site which could meet the established criteria. Their answer kept coming back the same. No. To move the site elsewhere would decrease the effectiveness and functionality of the entire Carefree Water system and increase costs. And, any increased costs would necessarily need to be funded by all Carefree users of this system, including the 85%+ that don’t live in the Boulders.
Whether it is my role on Council or the Water Company, my fiduciary duty and that of all of the other elected and appointed officials, is to the broader good of the Carefree community. The proposed plans to build a buried fresh water reservoir in an existing utility easement adjacent to Tom Darlington is the best site from a functional perspective, most financially feasible which mitigates future impacts to water rates and would cause the least disruption to the neighborhood.
Donna McMenamin Email Letter
Admin: Resident Donna McMenamin submitted a letter to the BHOA Board President Bernie Pistillo on 08/23/2021. From her perspective the letter describes a number of problem areas. She has received no reply and the letter has not been posted to the BHOA website, so she has submitted it to Carefree Unity for publication:
Carefree Unity has learned that Mrs. McMenamin did not send the following letter to President Pistillo. Our current understanding was that she had found the BHOA unresponsive to several of the included requests and sent this letter to Carefree Unity rather than to the BHOA, in an effort to get it published for community information.
We apologize to President Pistillo and all our readers for our error.
Donna McMenamin Email Message: I too am concerned about the lack of HOA financial information. The last set of F/S posted to the website are from May 2021 as of this date (August 23). I have requested the posting of June and July 2021 and as of today (August 23,2021) they have not been posted. I don’t know why. I also requested an accounting analysis of account 4210 “prior mgmt error correction and unidentified differences”. Through May 2021, this account has grown from $815.61 to a balance of $9561.92. As a retired accountant, I am at a loss to understand why there are unidentified differences! What is this expense?
There are many issues that have been raised in the HOA zoom meetings that are being recorded by video (and not posted) and yet none of these concerns make it into the written approved minutes. This leaves HOA members in the dark. For example, in the May 21 meeting, Bernie Pistillo admitted that the HOA had paid $4500.00 for an appraisal, that we never received, for the water tank lot. WE PAID FOR SOMETHING WE NEVER RECEIVED! I think homeowners should be aware of how our money is being spent.
There are other concerns that need to be addressed, ie the division in this community this lawsuit has caused, the lack of transparency from this board, ie how much money is being spent on legal fees, the personal attacks on Les Peterson, and the censorship on the website….letters with opposing views are not posted. Shouldn’t we hear both sides of a story so that we can make our own intelligent decision about issues?
And in conclusion, why did the HOA post political views from “Carefree Citizens for Responsible Govt”. This has nothing to do with the business of the BHOA, and causes further division in this community. This post should be removed from our website.