In The Insular World Of Tucson's Homeowners Associations, Being Neighborly Can Take On Oppressive Dimensions.
THERE WAS A cold wind blowing that December morning as Tony DeMadona held his sign at a corner in Continental Ranch, the sprawling development on the city's northwest side.
Wearing a white Eddie Bauer jacket and a golf cap saying "Tucson" in big letters, DeMadona didn't fit the standard pissed-off protester profile. He wasn't fighting ecological destruction, foreign military involvement, abortion or the death penalty.
No, this battle was decidedly more insular. "Don't buy in Continental Ranch! Check It Out! Get the Facts!" his placard screamed in neon orange letters.
"I never walked with a sign before in my life," the retired New York electrician admitted. "But I'm just fed up with the way things are going out here."
Trouble is, DeMadona already bought at Continental. The way he saw it, people living in this master-planned burg near the Tucson Mountains are at the mercy of a tyrannical homeowners association. The organization endlessly raises homeowners' dues, he said, and complaints from the community are met with devious evasion. He claimed that association lackeys cruise Continental's streets snooping for the slightest deed infractions, and relentlessly harass residents.
His sentiments, and those of a rotating roster of 35 fellow picketers, weren't exactly unanimous. Some of their stationary signs have been snatched at night, and a couple weeks earlier someone summoned Marana cops to the corner. The cops explained how the signs were illegal, since they were planted on a public right-of-way. Meanwhile, builders' advertisements normally proliferating near this spot had mysteriously vanished. At the same time, protesters were visited by a camera-toting private detective. Under fire, the gumshoe told police he was being paid by Cadden-Parfrey, Continental's property management company, to spy on the protesters.
Then came the daily hassles; many passersby paused to offer personal sentiments. "We do get harassed standing out here sometimes," DeMadona said. "Some people like to display their IQs with one finger."
Soon Ray Brisbine strode up. The driving force behind this free speech extravaganza, Brisbine also claimed to have wearied of Continental shenanigans.
"It's pretty obvious they want us to be quiet," the retired California construction contractor said. "They don't like us making all this noise. But we're not going to stop until we get what we want. We want a democracy and not a dictatorship in Continental."
An oncoming car slowed, and the driver raised her hand. DeMadona responded with a slight wave and a smile. "That was a thumbs up," he said. Brisbine agreed, with a quick grinning nod.
But the picketers have since become silent. They abandoned their roadside soapbox in January. According to a principal Continental Ranch shareholder, the disgruntled band are now negotiating a release from association ties.
Their success seems unlikely, however, since the remaining members would be obliged to make up those lost dues. Besides, most homeowners groups follow the all-or-nothing ethic. Escaping their grip is extremely rare, and while it might relieve this particular saga, it certainly wouldn't herald much change for the other 32 million association members scattered across the land.
SO THE FOLKS at Continental are hardly alone. That's not to say all homeowners associations are troubled; most manage to keep controversy at a minimum. But they do offer a vexing new set of political problems, and currently, few answers. Experts call them the largest-scale privatization of government this country has ever seen, and say they are destined to change the way Americans view their society. Just how that change will play out is anybody's guess.
Not to be confused with mere neighborhood groups, these organizations--alternately referred to as residential community associations or common interest developments--are initiated by developers to supervise budding, generally upscale villages, and membership is usually mandatory.
They are quasi-democratic institutions, providing amenities from trash pick-up to landscape design. Under their tutelage community parks are established, recreation centers built, swimming pools maintained and architectural consistency imposed, all financed by membership fees. Associations also lobby state and local governments on a variety of issues, including land zoning decisions and tax relief for services they already provide, like garbage collection. They've subsequently won many struggles against outside forces. In New Jersey, for example, a recent referendum banned all such double taxation.
While critics call them walled-off worlds, where the well-heeled can collectively ignore larger community problems like crime and fiscal despair, this elitism still exacts a price: Associations exert more control over their member's lives than do any municipal, state or federal entities. They mandate how many hours a day you may keep your garage door open, whether you can build a pool in your backyard, what kind of shrubs get planted out front or how high your flagpole may reach. And that's assuming flagpoles are allowed.
In short, they are not refuges for renegades. "My wife and I have been to Yugoslavia, Romania, Bulgaria and Hungary," Ray Brisbine said, "and I swear they've got more freedom than we have here."
The Sunbelt has the greatest concentration of these suburban regimes, though by no means a monopoly. Nationally, the statistics are stunning: Since their debut in 19th century Boston, and a tremendous boost during Florida's 1960s condominium boom, the number of associations has swelled to 150,000, with another 10,000 added annually. There are nearly 700 homeowners associations in Pima County alone, ranging from condo cooperatives to huge enclaves like Continental Ranch.
Serious conflict in these communities is fairly rare. But upon arising, it can take vicious forms. Neighbor turns against neighbor, and whole developments sometimes erupt over trivialities, like placement of a single TV antenna or color schemes in the recreation center. Resolving these dilemmas can be agonizing and bitter.
According to analysts, many problems come from the contradictory roles associations play. On one hand, they operate as governments. On the other hand, they're still private concerns, and thereby immune from constitutional guarantees like free speech. The courts consider them voluntary, akin to joining the Elks or Kiwanis; stop griping or get out. But since most new homes in the U.S. come with associations attached, buyers' choices start shrinking fast.
In their early stages, they are run by developer-appointed juntas. These boards of directors are often comprised of builders within the development, with one or two homeowners added to the mix. The boards, in turn, hire outside companies to handle daily management details, and to act as buffers between themselves and agitated residents.
As a rule, appointed board members get a preponderance of votes compared to homeowners on community issues. At Continental Ranch, they each garner three for each parcel to be developed. Homeowners receive one per home they occupy, no matter how many live in that house. For example, in a Continental election held last March, the homeowners were outnumbered 13,000 votes to 340.
This formula allows developers to retain control of their property--through the association--until the community is nearly complete, or up to some preset date. The association is likewise guided by a set of codes, covenants and restrictions, known as CC&R and signed by every home buyer. Those laws remain in place long after the developer turns the board over to homeowner-elected officers and departs. At that point, elected representatives maintain the rules, which typically can only be overturned by a "supermajority," or 75 percent of homeowner votes.
Theoretically, CC&Rs maintain property values by enforcing rigid canons of conformity. The idea is to discourage Bernie next door from expanding his junked car collection, or Hank and Ethel nearby from painting their palace flamingo pink. Conventional wisdom holds that an homogenized aesthetic keeps your little town looking sharp, thereby drawing newcomers like flies. Code violators are actively ferreted out by management company staffers and neighborhood snitches. Fines are then levied against them, or liens even placed on their homes.
Ray Brisbine has lived in several associations. But he says Continental's board has taken its particular mandate too far. Among other transgressions, he cites a CC&R bylaw granting the body power to raise membership fees, or assessments, at any time. Now set at $18 a month, those assessments can jump to pay for legal costs, beefy landscaping bills or sparkling new parks. Under the association's 3-to-1 voting ratio, homeowners can't do much about it. The date when his association reverts to home-owner control has also been moved up, from 1995 to 2009. In addition, Brisbane accuses Cadden-Parfrey of hiring a maintenance company it owns, possibly skewing the contract bidding process and presenting conflict-of-interest questions. Then comes the risk posed by Continental's community property. "We're legally liable for everything that happens on it," he says. "If there's some kind of catastrophe, or someone gets hurt, they can even put liens on our houses to pay for it. It's like living in a police state."
ACCORDING TO EVAN McKenzie, a political scientist at the University of Illinois, and author of Privatopia (Yale University Press), a book dissecting the blissful illusions associations proffer, "People who buy into them do give up a large part of their rights as citizens."
He says that while associations may wield great power, they often don't do it wisely. "The boards tend to read the CC&Rs, use them as guidelines on how to rule their communities, and take their cues from the property management companies. That's where they get into problems. Then they turn to the property managers and lawyers recommended by property managers, who tell them to be strict in collection of assessments and enforcement of rules, otherwise chaos will ensue."
The gradation of enforcement used by civil authorities is lacking, says McKenzie, a former association lawyer. "If you cross an empty street in the middle of the block, and a cop sees you, will he give you a fine? Probably not, since it's at his discretion." But associations show no flexibility. "Boards feel it's their mandate to enforce every rule every time."
Meanwhile, homeowners operate under the neighborhood model, he says. "They say, 'Jack down the street, well, he's not going to tell me what to do just because he sits on the board.' It all creates an enormous amount of conflict. One guy told me he used to tell his neighbors how to get into his garage, in case they needed to borrow anything. After a few run-ins with his board--made up of his neighbors--he said there's no way he'd do it anymore."
He says those boards often give rise to despots.
"They tend to be comprised of people who have some desire to hold power over their neighbors. The situation can really create little neighborhood Hitlers."
Property management companies are rife with conflict-of-interest problems as well, McKenzie says. "Florida is the only state that requires them to be licensed. The person who gives you a $10 haircut has to have a license, but people who handle millions of dollars of other people's money don't face the same regulation."
Ultimately, he considers the whole concept of private government elitist. "I call it succession by the successful," he says. "When we think about citizenship in our communities, we think of some concept of rights and responsibilities. But common interest developments encourage secessionist mentalities. They encourage apathy, giving people a variety of incentives for not seeing themselves as belonging to their city or county, since they belong to associations that provide services such as recreation centers, swimming pools and parks. Meanwhile, those cities and counties shrivel from neglect."
In Privatopia, he even describes how courts in Great Britain have always been loathe to enforce property restrictions, on the basis that they make ownership less attractive--and reduce property values.
Perhaps Yankees are easier to herd than Brits. According to Margaret Becker, president of Southern Arizona's chapter of the Community Associations Institute, American homeowners associations do serve an important purpose. "I think they're good, as long as people know what they're getting into," she says. "Many deed restrictions in the CC&Rs have good reasons behind them."
While fine print can get ignored in the mad rush towards closing a sale, she says that "people know CC&Rs are in place, but some don't really pick up on what it's all about. There's so much paperwork involved--you're usually faced with a stack of papers several inches thick when you're buying a home."
Responsibility nonetheless lies with buyers, she says. "Maybe they'll find out they don't like the way the board of directors is running things. People have to be very careful about things like that."
NO MATTER WHERE the buck stops, "the fact is that associations are everywhere," says Becker, who also manages several local properties. "I drive around Tucson, and I don't see homes being built that aren't in one. And when I hear from people who have conflicts, I tell them to run for the boards."
In response, McKenzie calls the CAI "a trade organization for property managers." An outgrowth of the National Home Builders Association, Urban Land Institute, Veterans Administration and other groups, the now-independent CAI considers itself among the few national voices for homeowners.
Debra Bass, the institute's vice president for communications, says McKenzie is off-base. She labels his book "tabloid journalism," saying that homeowners associations are here to stay, and her group serves them at all levels, from homeowners to board members and property managers. "In fact the majority of our new services are geared towards homeowners. We publish books for them, and have even launched a new electronic bulletin board called 'Community Association On-Line.' We refer to it as 'The Great Equalizer.' "
Beyond that, the CAI offers one-day training sessions for board members, and in-house accreditation classes for property managers.
Contesting McKenzie's view of associations as somehow snooty, she says, "I don't think they are in any way secessionist, unless members stop voting or something. People simply want more control over their communities. You always want to protect your own turf, wherever it is."
Unfortunately, protecting that turf can mean guarding against your own association. At Cañada Hills, a big Oro Valley development, several residents have fought their association over public roads that were meant to remain private, the lack of sidewalks, promised parks that never appeared, grassy slopes that became storm drains and increased-density zonings.
There's a bunker mentality in those hills. When contacted, many residents refused to go on record with complaints, fearing legal reprisals from Cañada's management company, Cadden Parfrey--the same firm running Continental Ranch.
But one resident did talk, describing his management run-in that became a byzantine nightmare of twisted communications and legal cul-de-sacs. David Rychener's odyssey began in the early '90s, when he was among several Cañada dwellers who withheld one year's worth of association dues. They were awaiting the first association meeting to find out where their money was going.
The caucus satisfied Rychener's curiosity, and he started paying from that date on. Then last June, he received a little surprise.
"I got a letter from Cadden-Parfrey saying I owed that $120, plus interest, and if they didn't get a response, they were turning it over to a lawyer," he says.
In early July, he called Cadden-Parfrey, explaining his plight to a secretary. He was promised a quick return call by her boss. He also discussed his problem with Mark Weinberg, a homeowners representative on Cañada's board of directors (and a former developer's rep) who promised to address his concerns.
Rychener never got a call from Cadden-Parfrey, but did receive another letter from company lawyer Tanis Duncan, stating that he owed the original $120 plus interest and newly incurred legal fees. The total debt was now $438.00
He again contacted the management, and talked to the same receptionist, who said she had no record of his earlier call. "So then I talked to company owner Mike Cadden, and he said he'd take it before the board," he says. "I was more than willing to pay the original dues. I just wanted them to explain why I was being charged extra when I was attempting to address the situation."
Last October, he wrote Cadden-Parfrey once more to discuss the problem. In late November, he received another letter from Duncan restating the debt. The letter still didn't respond to his questions. Finally exasperated, he mailed the $120, just to be done with it. A few days later, the lawyer's office reported never receiving his payment.
"I've lived in Tucson for years," Rychener says, "and have never been late on bills, or ever had this kind of problem. It was really unbelievable."
And so it went, until 9:30 p.m. on the Thursday before Christmas, when he was served with papers for some $800--the original $120 plus interest and still more legal fees. He then contacted his own lawyer, who said the bill might be fought, but at unappealing expense. Finally, Duncan agreed to drop $150 from the charges. Rychener ended up paying $714 to put the matter to rest. His wife was pregnant, he says, and didn't need the endless stress. "All I wanted was an explanation of why these fees were being added, and why they weren't responding to the letters I'd sent all along."
He says he'd like to see Cadden-Parfrey go down the road, but isn't philosophically opposed to homeowners associations, having been president of one Cañada Hills sub-association for several years.
"I know how difficult it can be managing the 54 homes within my own village," he says, "with people not always knowing what they signed onto, and not wanting someone telling them how to take care of their front yards. But this really turned into a fight. It was me against them."
Repeated attempts to contact Mark Weinberg were unsuccessful. When reached for comment on Rychener's plight and problems at Continental Ranch, Mike Cadden said he "wasn't going to enter into a dialogue" with a reporter.
These are a sampling of problems associations create. Still, the majority of Tucson members are doing just fine.
LEONARD TELESCO HAS been a member of the Catalina Foothill's Flecha Caida neighborhood for 22 years. Flecha's association has long been in homeowner's hands. "I've had very little contact with them," Telesco says. "I just pay my $40 a year for administration and attorney's fees. They will take people to court if there's a code violation."
He cites two such breaches, concerning houses that were painted white against deed restriction demands. But most controversies remain low-key, he says. "There aren't any really hostile relationships. The board does try to solicit the opinions of people involved. Personally, I'm glad it exists. I think its a good thing for the whole area."
Even at Continental, most homeowners spent their time worrying more about Ray Brisbine and his cohorts than about their association. "I stopped and talked to the picketers when my wife and I moved here in August," says resident George Carey. "To tell you the truth, I think they were nitpicking."
Carey says he belonged to a California association before moving to Tucson. "I don't get involved much. I think it all ends up just being a bunch of goddamn politics."
One couple, walking their dog along a Continental street, simply said, "You're not going to satisfy all the people all the time."
According to Joe Hopkins, a homeowners representative appointed to Continental's board last September, "Ninety-nine percent of the people living here are satisfied with the way the association is run." He says the CC&Rs, amended in the lopsided March referendum, now provide for ample homeowner input. "There were meetings every week, and fliers requesting the homeowners to vote on every change."
Even Ray Brisbine was asked to be on an advisory committee, Hopkins says, but he declined. "Right now there are 20 homeowners either on advisory committees or subcommittees, working on various aspects of association financing and the CC&Rs. Personally, I don't think there are any problems in getting the board to look at issues. Whether you like their decisions is another matter."
Dave Dolgen is chief operating officer for Southwest Value Partners, which controls Continental's owners, Ranch Holdings, through an affiliate. He's also a principal investor in the subdivision. (A backgrounder: Continental Ranch was originally owned by Charles Keating. When Keating fell on fraud charges, the property was acquired by the federal government's Resolution Trust Corporation, which sold it to Ranch Holdings two years ago).
Today, things at Continental Ranch are just peachy, Dolgen says. "We've developed a new way of dealing with homeowners. When the RTC held the property, many of these problems were left unaddressed."
As Ranch Holdings began revamping the CC&Rs--holdovers from Keating's time--the homeowner advisory committee met for months to hash out their fine points, he says. "We've since made that advisory committee a permanent body, and it's really helped."
Delaying the date when association reins are turned over to homeowners was caused by the recession, he says, which threw Continental's completion schedule off-track. Dolgen adds the picketers were from an early subdivision with special problems, and all they really wanted was to be removed from the association. "Our attorney gave us the opinion that, in order for them to be let out, we'd have to have the approval of every homeowner in Continental. That would have been impossible.
"But the homebuilders recently suggested if the picketers were able to find a third party attorney to assess the problem, the board would support that. Those results remain to be seen."
The upshot, according to Dolgen, "is that we've created a whole new way of dealing with homeowners. There's much greater communication. We've created a real opportunity for alleviating these things. After all, no developer wants to be bothered by such headaches."
But if Continental's dispute is finally resolved, it will be a strictly internal affair. The city, county and state governments have no control over homeowners associations, other than an Arizona law requiring sellers (or realtors) to advise home buyers when one exists.
City council staffers report having little involvement with them. Associations do have some clout on the county level, mostly concerning zoning and road improvement issues. At Shadow Rock, a Don Diamond development in supervisor Mike Boyd's district near Pima Canyon, the association received $40,000 in county funds to upgrade what critics consider private roads. Boyd defends the expenditure, saying that "according to the county attorney's office, those roads have to be maintained by the county."
GREEN VALLEY'S 45 homeowners associations--comprising the unincorporated community's government--heavily influence the placement of funds within Supervisor Paul Marsh's district--some say too heavily. Marsh neglected to return several calls on the question. But his assistant, Rod Cramer, denies the charges. "Everyone in District Four is treated equally," he says. "Each area has different priorities, and we do whatever it takes to serve those areas."
In District 5, Supervisor Raul Grijalva says the power of homeowners associations is increasing. "Our contact with them is taking on a different tone. Now it's becoming more than just the issues of roads, which we used to hear about mostly. More and more associations are into land use issues, density issues, and they do have influence. They have affected votes."
Concerning regulation of homeowners associations within Pima County, he says, "That's one thing we don't have. Some level of participation by the county does need to be in place. There have also been proposals to create an information office. Homeowners often get information only after the fact on rezonings and other issues. That gives them a limited time to act."
Time is just what angry residents don't have, according to Ray Brisbine. "Listen, we were out on that corner since the second week in May," he says. "Our fees could go up to 100 bucks tomorrow, and legally we couldn't do anything about it. As it stands now, we have no real voice. The association can basically kill everybody out here if they make some major mistake."
But in the world of homeowners associations, there are no big-time blunders--or complaints--that can't be obfuscated out of existence. And thank God property values aren't affected by untimely deaths.
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