HOA denied access gate to common area

Our HOA (Arizona) denied our request for an access gate from our backyard to a little used common area (the area abuts the west side of our property and is basically a 15' wide ledge that drops off to a drainage area). The ledge also has a nice gradual slope to the sidewalk that makes it possible to bring a heavy wheel barrel up (we are doing work in our back yard).

The access gate would allow us to reach the west side of our backyard from the sidewalk. Reaching this west side of our property from any other area is nearly impossible because of 2 things: the 2 sides of our property are almost cut off from each other by a retaining wall in the rear of our property (only a small 2 ft. walkway adjoins the 2 sides) AND our house is at a steep elevation from the sidewalk to our west "front" gate that leads to the backyard - so steep that we cannot bring a wheel barrel up. Without this access from the west "side" gate - we are not be able to do any meaningful work on our backyard.

We did some work on the back yard before a block wall was erected. Now, we cannot access our west side back yard with any equipment to make any improvements.

FYI - at least 7 other homes out of 200 have an access gate to the common area that is identical in situation to ours (they all abut a ledge leading to a draining area (called an arroyo in Arizona). After the assoc. board received our request, they changed the Architectural "rules" to disallow any more gates to common areas and basically said all those who already had them were ok. Any advice?

Also - I've included arizona revised statute 42-13402 regarding common area usage definition etc. This relates to the special tax status that HOA's enjoy whereby they only pay $500 per year on all the common area land as long as it is considered common area and every member has access to it and can use it. If the HOA is in violation of this ruling, they lose their special tax status. Are they in violation but denying the gate to the common area?

42-13402

4. All members of the association or residential property owners in the development, their immediate families must have a right to use and enjoy the common areas. This right must be appurtenant to and pass with title to each lot and parcel. The association or corporation may assess fees for particular uses of individual common areas.

Per your question: Are they in violation by denying the gate to the common area? ... I would say NO. You can use and enjoy the common area without a gate. You stated there are 200 homes and only 7 have a gate.

You would be foolish to have them to lose the special tax status. Any increase in tax payments would be passed on to yourself and the other homeowners. Depending on the increase amount other homeowners would be looking for who to tar and feather for its demise.

It doesn't sound like you (or anyone else) is being denied use to that common area. From what you describe, you can access the area from the sidewalk.

Even if this area was determined to "not be a common area" as it is defined under this statute, the HOA would still be under no obligation to approve your gate. This 15ft ledge would just be assessed at a higher tax rate. Seems like a bit like "cutting off your nose to spite your face."

Just out of curiosity, what reason did the board give for not wanting gates to this area?