I thought Arizona HB 2374 would pass the House GOV committee. The sponsor, Keven Payne, is also the Vice-Chair of the committee. However, I am surprised at the close vote, which from my experience, indicates rebellious legislators. Yes, House COW and the Senate are next challenges.
We must educate the legislators as to the true nature of the bill. It is more than what the sponsor claims in the bill. Payne will not address the constitutional violations raised by this bill. That’s our strong point, if advocates are not afraid to stand up.
It is interesting to note that the sponsor is well aware of a possible constitutionality challenge to HB 2374 when he included Sec. 3, Legislative intent. He argues that the purpose of the bill would be “clarifying changes that are consistent with the legislature’s intent in 1994 in first enacting section 33-1802.” The original, HOA enabling act of 1994 is silent on legislative intent. It seems that there’s some tea reading and divination going on.
This defense by Payne above seems to imply that the intent of the Planned Communities Act in 1994 was just for these two Sun City developments by Del Webb. It makes sense, doesn’t it?
However, the purpose of the bill is quite clear and obvious — overturn the court’s ruling in Anderson v. RCSC (see More government interference – AZ HB 2374) and protect the HOA scheme against homeowner property rights.
Again, we return to constitutional matters and the court’s doctrine on interpreting wording of laws. What does the statute contract interpretation say? The recent AZ appellate discussion in Meyer v. State of Arizona (No. 1 CA-CV 18-0031, 2/5/2019; voter rights) explains the judicial doctrine on contract and statute interpretation.
Here, we get entangled with everyday meanings of terms and words, and what does the law explicitly state. As raised by RCSC, it cannot be an HOA because the definition requires that an HOA must be established by a declaration.
“RCSC argues that the ‘declarations’ do not establish RCSC or its ability to assess mandatory assessments. The Court believes RCSC’s argument elevates form over substance. ‘Declaration’ is broadly defined to mean “any instruments, however denominated, that establish a planned community and any amendment to those instruments. A.R.S. § 33-1801(3).”
However, the court pointed out that RSCS has the authority, accepted by the homeowner in a signed agreement specified in the CC&Rs, to act in place of the HOA. The court didn’t buy the RCSC subterfuge. “If it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck…” The court granted a summary judgment — no material differences on the issues. The ruling has not been challenged.
What to do if you don’t get your way? Go to the legislature and change the law, that’s what!