New state laws about HOAs voided

2013-09-06T19:45:00Z 2013-09-06T21:23:09Z New state laws about HOAs voidedBy Howard Fischer Capitol Media Services Arizona Daily Star
September 06, 2013 7:45 pm  • 

PHOENIX — Saying legislators likely violated the Arizona Constitution, the Attorney General’s Office has agreed not to enforce some new laws governing homeowner associations.

In an agreement filed Friday, the state agreed to accept a court order that eight provisions of SB 1454 were enacted illegally and are void.

These include laws meant to prohibit cities and counties from requiring developers to established planned communities as a condition of getting zoning or permits.

Also gone are changes such as allowing proxies of HOA votes through email or fax.

The decision also knocks out another section, which would have limited associations’ ability to demand that homeowners furnish them with certain information about renters.

But the deal, set to be signed by Maricopa County Superior Court Judge Randall Warner, leaves intact the remainder of the measure, which makes various changes in general election laws. They will take effect as scheduled this coming week.

Assistant Attorney General Jeffrey Zick said the decision was made to settle because it appeared that the challengers had a valid legal point.

That point rests on a constitutional provision that requires every measure considered by the Legislature to “embrace but one subject and matters properly connected therewith.’’

SB 1454, as approved by the Senate, met that test, dealing only with the election law changes.

Similarly, there was no apparent problem with HB 2371 as it was approved by the House, which made major changes to laws governing homeowner associations.

But the Senate refused to approve that bill. So, on the last night of the legislative session, Rep. Michelle Ugenti, a Scottsdale Republican, resurrected that language and tacked it onto SB 1454.

The Senate approved the amended bill, and Gov. Jan Brewer signed it.

That provoked a lawsuit by the Arizona Center for Law in the Public Interest on behalf of two individuals interested in homeowner association issues. They said the maneuver — and hiding the language inside a measure on elections — deprived them of their right to know about and comment on the changes.

Attorney Tim Hogan, who represents the two men, said courts have given legislators some latitude in determining whether items in a measure are related, saying the provision “is construed pretty liberally.”

“But not this liberally,’’ Hogan added.

The Attorney General’s Office, which defends the legality of state statutes, essentially reached the same conclusion.

“When we looked at the case fairly, we did see some merit to the plaintiffs’ arguments on certain provisions,’’ Zick said.

Ugenti remains free to reintroduce her legislation next year as a freestanding measure and try to line up the votes in the House and Senate.

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

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