HOA law was enacted illegally, suit contends

2013-07-17T00:00:00Z 2013-07-17T09:01:49Z HOA law was enacted illegally, suit contendsHoward Fischer Capitol Media Services Arizona Daily Star
July 17, 2013 12:00 am  • 

PHOENIX - A lawsuit filed Tuesday seeks to void a new law about homeowner associations, not because of what it says, but because of how it was enacted.

Attorney Tim Hogan of the Arizona Center for Law in the Public Interest did not cite any problems with legal provisions of the law, which include limiting the ability of cities and counties to force homebuilders to establish planned communities with HOAs, as a condition of getting the necessary permits or zoning.

Hogan noted a measure with those provisions was approved by the House but faltered in the Senate. And similar provisions put onto yet another bill by Sen. Gail Griffin, R-Hereford, also ultimately went nowhere.

But the last night of the session Rep. Michelle Ugenti, R-Scottsdale, resurrected that language and tacked it on to totally unrelated legislation making changes in state election laws.

And that, said Hogan, violates constitutional provisions requiring every measure to "embrace but one subject and matters properly connected therewith."

He is asking a Maricopa County Superior Court judge to void the entire law, or at a minimum, strike last-minute HOA add-ons.

Hogan said courts have given legislators some latitude in determining whether items in a measure are related.

"The (constitutional) provision is construed pretty liberally," he said.

"But not this liberally," Hogan continued. "This is just two different subjects they stuck in one bill because it was the last night of the session, it was previously defeated, and the sponsor thought she could get it passed this way."

Ugenti said she thinks her additions to the bill are legal, if for no other reason than one of the changes does deal with elections: It allows an HOA to have voting by electronic mail and facsimile.

But the changes are far more extensive, even beyond the limit on what cities and counties can impose on developers. It also sets out new limits on how homeowner associations can regulate rentals and what information they can demand about tenants.

Hogan said this is more than a technical issue.

He said one of the plaintiffs in the case, George Staropoli, is president of Citizens for Constitutional Local Government, an organization that informs the public about property issues and what Staropoli contends are abuses of HOAs. The other is William Brown, who lives in a planned community in Scottsdale and has sued his own HOA.

Hogan said both opposed Ugenti's original bill, contacting senators after it was approved in the House. The bill never made it out of the Senate.

But by tacking the provisions onto SB 1454 - a bill titled as "relating to elections" - Hogan said Staropoli and Brown, who monitor the Legislature for HOA bills, were essentially kept in the dark about the issue once again coming to life. Hogan said if the title to the bill had been amended to reflect the added language, both men "would have had the opportunity to once again communicate their opposition to those provisions."

Hogan said, though, this isn't simply about the misleading title of the now-amended measure. He said the final version of SB 1454 "represents two separate bills which were log-rolled together." And that, Hogan said, is unconstitutional.

"Because it violates the single subject requirement, the entire bill is unconstitutional and void," Hogan argued.

No date has been set for a court hearing. But Hogan said he likely will ask for a ruling before Sept. 13, the day the legislation is set to take effect.

Copyright 2014 Arizona Daily Star. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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