Legal Proceedings

Final Judgement of the Ryan Case

Notice of Satisfaction Of Judgement

July, 2022 (Judgement July 9, 2018)

Court Certifies End of Condemnation Appeals

May 25, 2022

On May 25, 2022, the Court of Appeals informed the Maricopa Superior Court that no timely Motion for Reconsideration has been filed, and that a Petition for Review was filed with and denied by the Arizona Supreme Court on May 3, 2022.  

The official termination of all outstanding BHOA appeals is certified by this procedural filing, which is reproduced below.

Ryans v Town of Carefree, et al

Motion to Dismiss

May 22, 2022

 Motion for Attorneys’ fees 

Final BHOA Appeal Dismissed

May 11, 2022

Supreme Court Denies BHOA Petition

May 4, 2022

Supreme Court Denies BHOA Motion

March 9, 2022

SUPREME COURT OF ARIZONA

THE BOULDERS HOMEOWNERS ASSOCIATION, a domestic nonprofit corporation

Petitioner,   

v.

THE HONORABLE DANIEL MARTIN,

Judge of the SUPERIOR COURT OF

THE STATE OF ARIZONA, in and for the County of MARICOPA,

Respondent Judge.

TOWN OF CAREFREE, a municipal corporation and political subdivision of the State of Arizona,

Real Party in Interest.

Arizona Supreme Court No. CV-22-0039-PR 

Court of Appeals,  Division One, No. 1 CA-SA 21-0233 

Maricopa County, Superior Court, No. CV2021-006704 

FILED 3/8/2022

 

O R D E R

 

On February 17, 2022, Petitioner Boulders Homeowners Association filed an “Emergency Motion for Stay and Preliminary Injunction.” The Town of Carefree filed a response to the motion on March 4, 2022.

A party seeking a stay on appeal must establish the following elements: (1) a strong likelihood of success on the merits; (2) irreparable harm if the stay is not granted; (3) that the harm to the requesting party outweighs the harm to the party opposing the stay; and (4) that public policy favors granting of the stay.  Smith v. Ariz. Citizens Clean Elections Comm’n, 212 Ariz. 407, 410 ¶ 10 (2006). These same elements must be established in seeking a preliminary injunction. Fann v. State, 251 Ariz. 425, 432 ¶ 16 (2021).

Having considered the motion and response, based upon the information provided and the interests at issue, and in the exercise of this Court’s discretion,

IT IS ORDERED denying the motion. The petition for review shall be considered in due course.

DATED this 8th day of March, 2022.

 ___________/s/________________

ANN A. SCOTT TIMMER

Duty Justice

Arizona Supreme Court No. CV-22-0039

BHOA Loses Consequential Decision Courts Clear Path to Water Tank Construction

January 28, 2022

BHOA Litigation Continues

November 8, 2021

Judge Denies Latest BHOA Motions
Orders Quick Scheduling Conference
Condemned Property Transfer Recorded

November 4, 2021

Town filings in response to the BHOA appeal

November 1,2021

October 27,2021

BHOA Legal Strategy: Analysis

Overview

In April, the Town of Carefree initiated a condemnation action for a property on the east side of Tom Darlington at the southern edge of the Carefree City Limits, formerly a part of the North Boulders HOA (BHOA) common area.

By order of Judge Daniel G Martin of the Superior Court of Maricopa County dated September 24, 2021, the Town prevailed in this action and was awarded possession upon posting a $20,100 bond on September 30.  Preliminary construction activities have now been initiated on the site for the purpose of installation of a 300,000 gallon water reservoir.

Since April, the BHOA Board has represented to our BHOA members that we would not litigate condemnation but would contest valuation for the purpose of just compensation to the BHOA.  This was also the position taken by the prior Board.

We believe the public record of the Court shows that BHOA actions have been inconsistent with the Board’s public messaging.  In fact, the Board apparently is litigating condemnation without yet addressing valuation.  We also believe Court records, BHOA meetings, and financial reports show the Board is in the process of spending hundreds of thousands of dollars in what has so far been a fruitless effort to disrupt the Town’s plans.  Our residents appear to be funding this litigation directly from drawdowns of our BHOA cash balance and reserve funds.

The detailed analysis below establishes our expectation that the BHOA Board will suspend this (so far) ineffective litigation or provide a full explanation to our members for the reasons they are pursuing a strategy that they had previously said could be “inordinately expensive” and “fruitless.”

Detail

From nearly the moment of its election, the current BHOA Board has had a consistent message to the residents.  Here is what they said in their first major communication (4/30/2021):

We understand that many of you have valid concerns about the potential cost of condemnation litigation, given how the law and courts are biased in favor of the government in such cases. But it is important to distinguish between efforts to contest the power of the Town to utilize eminent domain (which ordinarily would be fruitless) and those that will maximize the “just compensation” (to use the words of the U.S. Constitution) that the Town must pay. The demonstrated unwillingness of the Town to offer us reasonable compensation and even to engage in any discussion on this question leaves us no choice but to litigate the issue of just compensation. Other interested parties, however, may approach us wishing to fund a challenge to the power of the Town to exercise its confiscatory power of eminent domain. We promise to work tirelessly with them to assist in any and all such efforts without incurring significant expense to the Association or the members.

From the BHOA Board’s Latest Statement to Residents (Update – Water Tank Litigation, September 1, 2021):

We have always said that a legal contest over whether a municipality or its instrumentalities has the power to condemn our property could be inordinately expensive and ultimately fruitless. We are not pursuing that strategy.

In June the Board announced a policy of no communications with the members on the current legal case, valuation or legal strategy, so the communications record does not go much further, but the Board’s message does seem clear and consistent.

In our opinion, then, what the Board has consistently said is that they will litigate valuation but will not challenge condemnation.  But this does not seem to be consistent with the public record:

• In July the BHOA filed two motions to dismiss the Town of Carefree’s condemnation action, including one that argued the Town of Carefree was “not a proper plaintiff” and therefore legally prohibited from executing condemnation of BHOA property.  This motion is in fact a claim against condemnation by the Town and has nothing at all to do with valuation.
• On September 24, Judge Daniel Martin of the Maricopa County Superior Court ruled against the BHOA motions and further granted immediate possession to the Town, pending posting of a $20,100 bond (equal to the amount of the Town’s appraisal).  The BHOA has called this offer by the Town “paltry” and “laughable.”  However, the Board has confirmed that no BHOA appraisal has been submitted to the Court, so it seems plausible the Town’s offer was chosen for the bond because Judge Martin had no other valuation information to consider.

In its September meeting, the Board disclosed that it had incurred “about $100,000” in legal fees, which the Board stated they intended to draw from the BHOA reserve fund.  The Court record leads us to believe that the entire amount was spent on litigating the Town’s condemnation under eminent domain, with no evidence yet found of legal expenses for valuation.  The Board seemed to confirm this in the September meeting, saying “obviously we are not arguing about the value of the land at this point; those are not the arguments Dale (Zeitlin) has been making for us.”  This would seem to be in direct contradiction of the Board’s messages to members that they would not contest the Town’s power of condemnation, even while confirming their statements that doing so would be expensive.

In fact, also in the September meeting, the Board indicated the break-even cost of a valuation settlement had risen to $120,000 ($100,000 litigation expenses plus the Town’s $20,100 offer) but said at this point value is “completely irrelevant” because “a win for us is to put the tank on another site.”

We were also told that President Pistillo did not anticipate spending a similar amount in legal fees in the future, though the only commitment made was to have a Board discussion of the value of winning their case before spending “any more significant amounts of money.”

Judge Martin’s ruling in favor of the Town was written on the day of the September Board meeting and was apparently communicated to litigants five days later, on September 29.  Since then, the Court record seems to indicate the Board has decided to continue incurring substantial litigation expenses.  On October 1, the BHOA filed three additional motions to the Superior Court:

• A request for a partial final judgement.  In this motion, the BHOA asks for a final judgement on all litigated issues except valuation.
• A motion for preliminary injunction.  In this motion, the BHOA requests the Court enjoin the Town from allowing Carefree Water Company and the UCFD any use of the land granted to the Town.  We won’t go into the detailed argument, but it clearly has no relevance to valuation.
• A request for a stay of proceedings.  The full text of the motion:
  • The Boulders Homeowners Association (the “BHOA”) respectfully requests that the Court 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.
  • In other words, the purpose of the request is to ask the Court to take action that will allow the BHOA to go to the appellate court to argue those issues it already litigated and lost.  We remind the reader that valuation is not one of those issues. 

These motions (and the two “replies” and one “objection” filed since) obviously represent continuing litigation expenses, and though we haven’t yet reviewed our understanding of what could happen next with our own attorney, at this point we believe the simplest interpretation of the Board’s intent to ‘win’ by putting the tank on another site was that they had already foreseen substantial further litigation costs.

To see why we believe this, we will project the litigation path (and the associated costs) that we believe could lead to this result:

• First, the BHOA must reverse the ruling made by Judge Martin, through the appellate process (if the ruling stands, construction activities will continue and only valuation will remain to be decided).  Whether appellate action succeeds or fails, we would expect significant additional legal expenses for our Association.
• Since the BHOA has argued the UCFD or Carefree Water Company are the “only real parties of interest, “and only they may bring the condemnation action in question,” the foreseeable result of BHOA appellate success would be a new condemnation action initiated by either the UCFD or Carefree Water.
• At this point, to meet the goal of forcing tank installation to occur on another site, the BHOA would have to prevail with a new argument preventing these entities also from condemning our property for public use.

In the September meeting the Board might have imagined the expense of an appeal to be unnecessary, but the expense of relitigating against Carefree Water or the UCFD was a directly foreseeable outcome of the BHOA’s original motions. 

We believe it likely an appeal will be a substantial additional legal expense, but even more expensive would be a successful appeal followed by another legal challenge to another government agency’s authority to utilize eminent domain.  Since Judge Martin’s ruling says in part “the Association does not contest that the condemnation is for a public use or that the property is necessary for that use” it is also far from obvious to us what arguments the BHOA would use to win such a case.

Now that preliminary construction activities have been initiated on the condemned property, we believe the court record increasingly supports the hypothesis that BHOA litigation has indeed been “inordinately expensive” and “fruitless,” at least to this point.

Given the Board’s apparent decision to pursue reversal through the appellate process, we would encourage the Board to address its revised estimate of the total eventual costs of its litigation and to explain how it concluded that the value and likelihood of a successful outcome justify these new efforts.

Carefree Unity has also engaged an attorney to help us understand our community issues and we think it plausible that BHOA legal spending could ultimately consume most of our BHOA reserve fund.  Carefree Unity members with significant legal backgrounds do not believe the arguments made by the Board are likely to prevail, and we remain skeptical that the path we have sketched out for the Board is plausible.  The effort also appears to violate the Board’s previous commitment to pursue “any and all such efforts without incurring significant expense to the Association or the members.”  We therefore encourage the Board to avoid taking this path or to explain to Association members why its continued legal spending is justified.

October 5, 2021

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

§  Photography

§  Drone Flyovers

Judge Rules In Favor Of The Town for Condemnation

September 29,2021

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.