Arizona trying to eliminating HOA street parking ban

In committee today is the following bill:

33-1815. Community authority over public roadways

Notwithstanding any provision in the community documents, an association has no authority over and shall not regulate any roadway, easement or other area for which the ownership or use has been dedicated to a governmental entity or that is otherwise under the legal authority of a governmental entity. An association has jurisdiction over only those roadways, easements and other areas that remain under the ownership of the association. END_STATUTE

Sponsor is Senator C. Gray. Doesn't mean it will be passed, amended or even get out of committee THIS SESSION. But be assured, it won't go away. This is probably one of the most contentious issues with HOAs with public streets. Harold

Well Roger, I don't know. There is the infamous "Notwithstanding" as the first word. Which seems to always eliminate any specific power of the association documents.
I actually suspect municipal lobbying behind the scenes for this bill. If passed, this would require future developments to go private streets if they want to control the streets. This would give municipalities added property tax base, but not the responsibility of maintaining the roads, etc. I think everyone agrees the cities are behind a lot of the HOA requirements because they control whether the developer gets permission to build it. Don't always blame the anti-HOA crowd. Harold

Background

Our CC&R's have this restriction on parking on private streets in the gated community:

"It is the intent of this Declaration to prevent parking of vehicles on the private streets. All vehicles will be parked in garages, drives or in designated parking areas."

It had not been enforced in many years. Past boards had believed that if they chose to enforce a covenant that they had to enforce it evenly. However, they were told by past MC's that they could selectively pick a covenant and not enforce that. So the parking didn't get enforced.

The current board believes that we are required to enforce all covenants, and began to do so. We had close to 70% compliance of the covenant before the letters began. 20% complied after the first letter, and 5% after the second letter. There were 5 of the remaining 5% who came to a meeting and complained bitterly about the enforcement.

Some reasoned that if we didn't allow street parking, then the landscapers, painters, construction workers,etc., could not park on the street.

We explained the "reasonable business rule" test that courts apply to law cases; and explained that it would be "unreasonable" under that test for the assiciation to not allow these vendors to park to do their job. Therefore, we had to allow them.

They argued that now they cannot have a party because they cannot allow their friends to park on the street. We told them that we recognize that people have parties, the community has events like a boat parade, community garage sales, etc, and that the "reasonable business rule" test would apply so that we could not and do not attempt to prevent people with parties from parking on the street.

The covenant is, in my opinion, talking about the owners vehicles. Some of the complainers have multiple cars and don't park any in the garage. They are required to keep two bays open for cars.

Working toward a solution

We enformed the complainers that if they wanted the CC&R's changed, they would have to work on that project and get 75% of the owners to agree.

A suggestion was made to develop a Rule that defines the word "parking".

We told the people that they would have to volunteer for a committee to develop a rule and that rule must not conflict with the covenant. All of the complainers and they spouses volunteered to be on a committee. (Wouldn't that be great!)

The board, during closed session (which was to decide on 3 appeal cases) motioned and approved to assign one board member and 6 community members to the committee. We chose 2 of the complainers, and we will get 2 who are for leaving the covenant as is. We will ask one person whose bias we do not know, however he owns a property management company and will bring to the table a sense of balance and understanding. There was one person there who said she was not decided either way, so she will be the 6th person asked for the committee.

We feel this is a very balanced committee. They will bring a recommendation to the board.

The Task

How do you define "parking" that does not conflict with the CC&R? A person could define parking as a car that is not parked over 24 hours, or 12 hours, or overnight. Does either one of those definitions conflict with the CC&R? My opinion is yes.

Here is a dictionary definition.

to stop and leave a vehicle: to stop a motor vehicle beside or off the road and leave it there for some time

Any other definition, in my opinion, is simply selective and would be used for the personal agenda of the person writing the definition.

Possible Solution using the "Reasonable Business Rule" test.

What do you think about this solution to meet the reasonable business rule test?

"This Rule is to clarify the CC&R Section 8.4 Parking.

This covenant is meant to describe the parking restrictions for the owners of a Lot.

It does not attempt to restrict vendors who must temporarily park in the community to service our homes, such as: landscapers, painters, contractors, mail carriers, police or other emergency vehicles, or board/committee members who must park at the common property areas in order to carry out their duties.

It does not attempt to restrict parking for guests of homeowners who are having parties; open house when a house is for sale; garage sales; or occassional guests of the homeowner who otherwise would have no place to park.

It does restrict non-community residents from parking their car in the community in order to drive to work with a community member. The Association does not expect the community to be a parking lot for non-community residents."

The reason we agreed to this is because we told the people that we are all for doing what the majority of the community wants, and our policy has been that if someone complains we tell them to get on, or form a committee to do the work and submit it to the board. Perhaps in this mannner a livable solution for all will be found.

Our position is that we are not going to subject ourselves to a negligence law suit.

These people thought that since only the complainers were at the meeting that they were in the majority. We informed them that we had phone calls and emails from about 10 people who were elated that the parking was being enforced.

Thanks for all comments on this situation.

Our streets are public and maintained by the county. Our covenants do not say that you cannot park in the street. Fortunately, most of the residenets do not park in the street but once in a while we have an issue of a long-term parked vehicle. We notified the sheriff and had it ticketed for parking in a curve and blocking the view of traffic creating a hazard. You can also ticket for parking too close to a fire hydrant, stop sign, etc.

If the county/city owns and maintains the roads which are paid by taxpapers, then I am with Brian on this one...you can't keep someone from parking on them. If it is a gated or private community in which the roads are owned by the association, then you can probably apply all the rules you want. I'm guessing there is an issue in AZ with HOA's over stepping their boundaries and trying to enforce an issue on property that doesn't belong to them.