"Standing" in Court ?

Hi all. First time poster, long time voyeur. My question may be more legal than HOA related, but I’d appreciate your thoughts anyway. It involves “standing” in court.

Say that I own a home on a private lot in an HOA. And, say, the HOA adopts a rule that says no trees can be planted on any lot. Now, I don’t necessarily want to plant a tree on my lot, but I don’t believe the HOA has the authority to tell me I can’t plant a tree on my lot. So, after a long debate with the HOA, I decide to challenge the rule in court.

The question is: Do I have standing in court to challenge the rule itself. Or, do I have to plant a tree and get a violation notice from the HOA in order to have standing in court?

LarryB13 – I’m in Phoenix too, and I’d appreciate any of your thoughts on this.

Richard

First, is the rule in the CCRs or was the rule adopted by the Board. Secondly, if Arizona has such rules, was the rule properly adopted and noticed to the membership. Essentially, does the rule have a defect.

Good point Tim. Many restrictions on ecological measures (like solar, clotheslines, water barrels, etc.) are getting overturned.

RichJ7

It is not uncommon for an HOA to say nothing can be planted unless approved by the HOA even on ones own lot. This is not saying you cannot plant a tree. It is saying the HOA must approve. Again, a very common restriction and one that one agreed to abide by when they sign on.

Thanks for all of your comments. Our CCRs are generic, 1980’s vintage. Architectural control is limited to structures. Other provisions in the CCRs relate to general maintenance and up-keep with specific restrictions on clothes lines, storage piles, rubbish, trash, trash-can placement etc. The CCRs give the Board authority to adopt Rules & Regulations governing the use of the common areas – not private lots.

Over the years the Rules & Regulations have gradually expanded. They were generally implemented informally without recorded votes of adoption. Some of the rules were adopted as a result of petty disputes between the Board members and their immediate neighbors. We now have 8-10 rules which dictate what can/can’t be planted or placed in private yards.

I have recently challenged the Board concerning these rules, and I’ve urged them to have the rules reviewed by an attorney prior to continued enforcement. As a result of my challenges, I’ve been labeled the grumpy-old-man on lot 57 who is upsetting the status-quo.

Arizona has a relatively low-cost ($750/complaint) Administrative Hearing process which is limited to violations of the governing documents or AZ statutes – filing fee is charged to the Association if I win. I was considering filing a complaint on the grounds that these rules are actually amendments to the CCRs which were adopted in violation of the amendment requirements (votes) in the CCRs. However, I have not been directly affected by any of the rules – hence my question about “standing.” I’d hate to spend $750 then loose it, first thing, because of lack of standing.

LarryB – can you offer any guidance on the mechanics of filing an injunction in Arizona?

All other thoughts/comments are appreciated.

RichardJ7,

I am going to respond to you in two parts; this part is regarding the administrative hearings.

My reading of ARS 33-1803 is that before you can avail yourself of the administrative hearing through the Department of Fire, Building and Life Safety you must have been given notice of an alleged violation. This would mean you must plant your offending tree and the association must send you notice of a violation before you may go to the administrative hearing. If you do not plant the tree or if you plant it and the association takes no action then it looks to me like you cannot use the administrative hearing process.

You should know that there is a troubled history with this administrative hearing process. At least once in the past, the courts have ruled that the scheme enacted by the legislature violates the Arizona Constitution. The courts held that they, and not the Fire Marshall, have the authority to make judicial rulings. See Gelb v. Department of Fire, Building and Life Safety, Ariz. App. 2010. Following this ruling, the legislature reinstated the entire process with virtually no changes. Should you choose to file a complaint with the department you should make inquiry with them to ascertain whether you may actually file with them.

Thanks Don and Larry. As suspected, I’ll probably need to be cited for my garden-gnome, or whatever, before I have standing at an Administrative Hearing.

Larry – I am intimately familiar with the Arizona HOA Administrative Hearing process, and I assure you it is alive and well. While it is limited in scope of authority, it is still a useful tool for both owners and HOA’s. Since it’s inauguration in 2007, about 100 cases have been filed – approximately 50 since the 2010 court challenge. By my crude estimate, about 25% to 30% have been ruled in favor of the homeowners. For you and others on the forum who may be interested, all of the judges’ decisions can be viewed on-line at:

Arizona Office of Administrative Hearings – Search Administrative Law Judges Decisions – Agency: Department of Fire Building and Life Safety – H/C.

They make for interesting reading.

Also, I believe one can download audio-recordings of actual hearings conducted in the last three years, but I haven’t tried that in some time.

Thanks to all for your comments. It’s about 110-degrees here, so I’ll wait until fall to plant an illegal tree.

Haven't heard it called that in decades. Come to think of it, I am not even sure which one that is. Now we got the 101, 202, 303, the 10, the 17, SR51, US60, plus The Stack and the mini-stack. Newcomers have no idea what the Papago Freeway is and the rest of us have forgotten.

They also drip gooey sap which is very hard to clean off of cars, assuming the tree eventually grows big enough reach over your driveway.

lol ... all rise.

How it works in my townhouse HOA:

1 Amendment to CC&Rs - requires 2/3 vote of all HOs.

2 Amendment to Bylaws - requires majority vote of board, then put to vote of HOs (ratification). Would take a majority of all HOs for ratification to fail.

3 Amendment to Rules & Regs - requires majority vote of board. No ratification needed. HOs could call a special meeting to overturn it. Nothing specified in our docs on the % of HO vote that would be needed. To my knowledge, never been done.