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SCA Board Given the Wrong Advice!For many years, the ARC rules regarding landscape and such were enforced only if complaints were received by the compliance department in Sun City Anthem. Suddenly a new mandate was handed down by management, stating that a man was hired to cruise our many villages each quarter and write up homes that did not comply with the rules, regardless of how long that the “non-compliant” item had existed on the person’s property.
For example, a bench that had been sitting under a tree in the front yard for ten years or more, beautiful large potted plants lining a driveway that had been there 15 or more years etc.
I can remember at the time questioning the new enforcement policy and I think the statement from management was that the board’s legal counsel had told management that it was state law that the rules MUST be followed.
In Barbara Holland’s column today she was asked about that very same issue and she quoted the same passage from NRS116.3105 (Nevada revised statutes dealing with HOAs) that I had raised with the Board at the time.
“The association does not have a duty to take enforcement action if it determines that under the facts and circumstances presented: The legal position does not justify taking any further enforcement action.
Although a violation may exist, or may have occurred, it is not so material as to be objectionable to a reasonable person or to justify expending the association’s resources.
In section 4 of this law, the board’s decision not to pursue enforcement under one set of circumstances does not prevent the board from taking action under one set of circumstances as long as the board does not act arbitrary or capriciously in taking these enforcement actions.”
I would say that this confirmation of many of our resident’s objections at the time all of the letters of violations we received a couple of years ago, gives extra weight to the Ronald Reagan quote “trust but verify.”
Even when the opinion is given to us by an attorney…. We may refer to them as “experts” we are bound to confer with, however they do not know everything.
To quote attorney John Leach, who said to me many years ago when I challenged him with a contradictory statement told to me by a lawyer from the Legislative Counsel office in Carson City, “that is just another lawyer’s opinion.” However, I would say to the current SCA counsel these days, the Legislative Counsel is writing state law, not just giving “an opinion!”
Think about this: Apparently the SCA attorney is either lying or incompetent. I just don’t know which trait is worse.
Dan Roberts
Although I respect Rana’s opinion, in my opinion SCA got good legal advice. I am a lawyer from Washington. We recently bought a home in SCA. Below is my perspective as a Washington lawyer.
In Washington, part of my law practice was representing HOAs. Some HOA disputes involved rules violations. A frequent defense by a person cited with a rule violation is that persons X, Y and Z also did the same or similar thing. The argument goes that when persons X, Y and Z also violate the rule, that (a) the rule is waived by lack of enforcement or (b) the HOA engaged in “selective enforcement” so the rule should not be enforced. Those arguments are made even though the covenants contain savings clauses to avoid those arguments.
Sometimes persons X, Y and Z violate a rule, but no one has turned them in. Many of us have polite neighbors who don’t want a conflict, so they would not report a violation even when a blatant rule violation occurs.
In my practice in Washington, none of those boards hired a person to drive around the community to look for violations. But then, none of those associations had 7200 homes. My associations were all smaller, so board members and managers could easily see rule violations when they occurred.
If I painted my house purple, without board approval, that does not mean it is OK to have a purple house just because my neighbors fail to complain? If I have a dead tree, does that mean it is OK to leave it there until my neighbors complain to the ARC? A purple house, and a dead tree, will lower neighboring resale values and will likely annoy good neighbors.
To prevent against those and other problems, it appears the SCA lawyer recommended to have a person drive around the community 4x each year. Imposing on the SCA ARC or board members the duty to periodically drive around all 7200 homes would be too burdensome for those volunteer positions.
If the ARC issues a citation based on the drive by, then the defense should not be that the neighbors did not complain. If flowerpot or a bench citation is so petty that the circumstances do “not justify taking further enforcement action, ” then the citation should be dismissed. If the rules unreasonably prohibit a bench or flowerpots, then fix the rules.
It appears SCA’s lawyer recommended this policy change. I am not privy to what the SCA lawyer said, but I believe given the size of SCA, that recommendation was reasonable. Likewise, the decision by the SCA board appears reasonable.
Shawn, the two examples I gave ARC changed those rules, however stuck to their decision on many others that were, in my opinion unreasonable. For example; SCA allows you to line your metal fence only with perforation steel sheeting. A resident I know well had used another perforated material that was almost invisible from the road yet she received a violation. At a meeting she challenged that violation with facts, a: her material was must less costly and b: it was maintenance free.
The chair of ARC was at the meeting and stated that only the perforated steel was acceptable since it would not rust. I went to ARC (as a board member) the following week and showed them photos of several homes on my on street that had used the perforated steel and they were very, very rusted. Still they would not ever consider allowing owners to have another choice.
To: “Anthem Today” from Richard Berman
The bench example is interesting. Why? We had a concrete bench in our front yard for more than 15 years. Suddenly we received a violation notice. Rather than exhaust my energies in fighting such a frivolous complaint, we moved it to the backyard. Later on, perhaps another year went by and we learned that the objection to benches in the front yard were no longer considered as violations. Back to the front yard. The bench is concrete – oh my aching back.
Rana, your example, and the example by Richard Berman, are good examples where unreasonable rules needed to be fixed. So the problem may not be bad lawyer advice, but the draconian enforcement of unreasonable rules. If I understand how SCA works, the board can fix unreasonable rules and the ARC enforces those rules.
After reading Shawn Hicks dissertation on his background and opinion regarding Rana Goodman’s editorial SCA Gets Wrong Advice, I must take umbrage to what he wrote in part.
1. First of all, in my opinion, his demeanor is an example of what we have seen in so many attorneys especially in the state of Nevada (1) arrogance (2) feels he can make pronouncements without any idea of the often sordid history of governance past and present in our community and sides with the existing attorney without knowing anything about his past.
2. It would have been wiser if he had spent his time researching how SCA has been run in the past by many board members who considered this community as their kingdom and the homeowners merely their serfs. Furthermore, these board members felt that homeowners should have no say in governance unless they agreed with the board and looked at homeowners as their source of revenue to do what they wanted with money including ordering meals from gourmet restaurants while working on board matters.
3. Ms. Goodman was “a breath of fresh air” when she first became president of our association. Furthermore, she has worked hard to change the laws to protect homeowners, especially seniors tirelessly. Is Rana perfect-certainly not, but neither is anyone in our community.
Mr. Hicks may take umbrage as to my comments and observations and wonder who I am to criticize him. I have been here 14 1/2 years and came from another state where I served on an HOA board for 21 years and 15 as their president while working full time for the Veterans Administration. We threw out two management companies and became self-managed. We always allowed homeowners to openly attend board meeting and comment both pro and con before any vote was taken. If a homeowner had committed some violation of a rule or law, they were taken into another area and admonished or told the consequences privately. We were extremely successful in this approach that 27 other HOA’s also threw out their respective management companies and became self-managed as well. We never were rude to any homeowner in public.
We also were very fortunate to have an HOA attorney who actually helped write the HOA laws of the state and he never ever allowed us to act illegally on any matter.
Finally, Mr. Hicks should not automatically side with our present attorney without observing his demeanor when he constantly intimidates board members and takes over meetings at times. Our present attorney is paid to offer an opinion which the board has the right to accept or not. He does succeed in spending huge amounts of money for his opinions. He forgets that he works for us and not the reverse.
In general I agree with Ms. Kosterka’s comments. I intended to post my thoughts and will do soon. I plan to address the ineptness of our Board in allowing the SCA attorney (Clarkson), to orchestra their thoughts and decisions.
Also, Mr. Hicks approach would require you to accept your attorneys “opinion” and instructions as the gospel. As a practicing CPA I have worked with 100’s of attorneys on my behalf and clients, for now let me simply indicate the majority of the attorneys were simply not good attorneys or incompetent.
As time allows I will elaborate further ASAP.
Peter Brown
SCA Board Given the Wrong Advice!
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