No Food for You!

A resident raises a fuss after a HOA says yes to $3,500 to light three trees, and no to a food drive

Barry Austin is disgusted by his HOA.
Thanks to the Finisterra Home Owners Association, the three palm trees at the neighborhood's gated entrance are covered in $3,500 worth of lights to help the foothills community celebrate the season of giving.

However, one resident of the development, north of Sunrise Drive off Craycroft Road, not only publicly questions the expense of the lights, approved at a November meeting; he thinks the HOA's board of directors erred when, according to that resident, the board unanimously voted "no" to a request to hold a food drive.

Too bad, considering the Community Food Bank announced this month that local food banks face a shortage in food donations.

Finisterra resident Barry Austin says that while the $3,500 spent on lights is questionable, the board's decision to not allow a holiday food drive is "absolutely disgusting."

Austin and his family have lived in the neighborhood for more than 20 years. He says he has grown to understand that the occasional strange decision is part of life when living in a neighborhood with an HOA.

"Sometimes, things like this happen. There's a cyclical nature to the board representation. As issues come up, eventually, board members are replaced when their terms expire," Austin says.

This time, however, Austin decided to take action, because he's concerned about how the November vote paints other Finisterra residents.

"Here they are. They've spent this huge amount of money on the Christmas lights for just three palm trees," Austin says. "Yes, I guess they've proven themselves to be a Grinchy board."

The board isn't entirely Grinchy, however, since they also decided that month to give Christmas bonuses to the HOA's six employees who work on landscaping and 24-hour security at Finisterra's gate, Austin says, with the bonus amounts kept confidential.

Each of the lot owners pay the HOA $2,080 annually per lot. The development has 190 lots.

Austin says he doesn't fret over the employee bonuses, but is concerned about board oversight, since the recent HOA newsletter sent out to Finisterra members never mentions the amount spent on the trees, nor the decision banning a food drive.

Austin says he believes that the minutes from the November meeting will not be approved until January.

The Tucson Weekly called Ed Landes, board president of the Finisterra HOA, to discuss the alleged vote against the food drive. Landes, however, did not return several phone calls. Messages were also left with Katie Lister, who runs the Finisterra HOA office.

Austin's neighbors are hesitant to talk. However, Austin is not; he sent letters to the editor critical of the Finisterra HOA, which were published in both Tucson daily newspapers.

"It seems we get in trouble with our homeowners' association when we have people on the board who decide it's appropriate to run the association like their personal household," Austin says.

Tucson attorney Stephen Weeks agrees. Weeks' clientele includes homeowners in trouble with their HOAs because they haven't paid fines or assessments, or they disagree with how an HOA's board of directors interprets the development's covenants, conditions and restrictions contract (CC&Rs).

In Arizona, it's becoming increasingly rare for someone to purchase a home in a subdivision that doesn't have an HOA. As subdivision developments have increased, so has trouble for residents when HOA board members go wild with fines and CC&R interpretations.

Weeks says that in the past, courts have generally ruled in favor of HOAs rather than residents, but lawsuits and complaints forced the state Legislature to get more involved to protect residents.

"Now, the pendulum has swung on the side of the homeowner," Weeks says.

Weeks says most HOA troubles often begin when an HOA's board of directors approves policies that may be illegal or incongruent with the feelings of the neighborhood--like, say, prohibiting a holiday food drive.

"It's typical that people who end up on these boards are often retirees," Weeks says. "They are formerly people who were in a position of power."

Weeks says Austin does have recourse if the current Finisterra board of directors continues to take questionable actions, presuming Austin's neighbors agree with his accusations: A statutory provision exists that allows all members of an HOA to force a recall vote through a petition process. The board can call a special meeting, and a quorum of the board must be present. A simple majority is needed. Board members in question are allowed to speak at the recall vote meeting, Weeks says.

When it comes to the CC&Rs, Weeks says, there is little a resident can do, since the CC&R is a legal document they agreed to follow when they purchased the home.

"If the board is doing something outside the authority of the CC&R, you have a case, but if the CC&R says you can't have palm trees, then you can't, and it's not worth fighting," Weeks says.

Austin says change has already started for the Finisterra HOA, with the addition of three new board members after November's voting occurred.

"As (the board members') neighbors find out how they've been acting, perhaps they'll be careful of how they act in the future," Austin says.

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