https://www.bouldersnorthhoa.com/water-tank/

Boulders Homeowners Petition to Improve our Governance Documents Talking Points 1.28.21
The purpose of our petition is to improve our BHOA governance documents (Bylaws and CC&Rs) in the case where an external third party seeks to acquire any portion of our open desert common land for any purpose.
Currently the BHOA board can allow a change of ownership without any notification or without a vote by the BHOA homeowners.
The open desert common land, created at the time that 1300 acres of desert were acquired to create the Boulders, was specifically set aside from any development to preserve the natural landscape into which our community was built. There are hundreds of acres common land forming the borders of our community and scattered throughout our community. This land is owned, in common, by each of us.
Our changes to the Bylaws and CC&R’s would be made effective only after a special meeting of the BHOA where all members would be able to state their opinions and then vote.
If approved, these changes would take effect immediately and would become a permanent part of our governance for the future.
A vote for these changes is not a vote for or against the Town of Carefree industrial water tank proposal. It is a vote to allow all homeowners to approve or reject any transfer of our common land. Now or in the future for any purpose.
A vote for these changes is not a vote for or against the current members of the Board of Directors. We assume our Directors act in good faith. However, the disposition of land that is owned collectively by each homeowner should be the subject of a homeowner vote.
If you do not care about who owns and uses our common land in the future then do not sign our petition and proxy.
John Smucker Don Schwarzkopf Bernie Pistillo Dave McKeown

In 1984 when the Scottsdale portion of the Boulders was being developed the integrity of the overall community, what is now Boulders North and South, was a central consideration. The strongest selling features were the natural beauty of the community and the sensitivity of the developers to create an environment where the homes and natural landscaping blended together. The borders of The Boulders are without walls, unlike other gated communities in the area. We didn’t need walls because the natural desert owned by The Boulders flowed into the surroundings of our homes and community. To allow an industrial water tank facility to be built on The Boulders property for all to see driving up and down Tom Darlington would be an eyesore to our community. It is not what we are about. We are about the open space and the natural desert landscape and the common areas are part of our community.
The following is a quote from Rusty Lyon published in 1988 in the book “The Spirit of The Boulders”. “As we began to plan the 1300 acres, we shared a single vision: to create an exhilarating desert place, a landscape where man-made architecture would subordinate to the natural environment, a setting where people could interact in an easy harmony with nature. To that vision, we added a commitment to realize our dream. We pledge never to compromise the integrity of the desert or the development. The result is The Boulders”.

Voting Instructions and Forms
To amend our association’s governing documents, members must (1) petition for a special meeting, and then (2) vote in the majority for the amendments.
We have already collected more than enough signatures to petition for a special meeting, so we ask only that you vote for the amendments. Due to the pandemic, we strongly recommend voting by proxy.
This simply means that you would send the completed proxy form to another individual, who would responsibly maintain the physical copies and present them as a group to the appropriate official at the appropriate time.
Dave McKeown has agreed to be our proxy in this matter. Your options for sending the proxy form to Dave are as follows:

1. (1)  if you have a digital signature image, affix it to the form and send it via e-mail to dmm@cs.cmu.edu;
   
2. (2)  print the form, sign and scan (or carefully photograph) it, and send it via e-mail to dmm@cs.cmu.edu;
   
3. (3)  print the form, sign it and place it in an envelope near your front door, after notifying Dave (via e-mail at dmm@cs.cmu.edu or by phone at (412) 414-8482) that it is ready for pickup; or
   
4. (4)  if you are unable to print the form, contact Dave (via e-mail at dmm@cs.cmu.edu or by phone at (412) 414-8482) and someone will bring a physical copy for you to sign.
   

If you send your signed form electronically, please retain a physical copy until the special meeting has occurred.
Please note that each lot is entitled to only one vote. The individual who signs the form should have due authority to represent the lot’s ownership.
Thank you for your efforts - every vote counts when a majority is needed.
You only need to provide the last page (Proxy Appointment) of this document to Dave.
Petition
WE, the undersigned Members of the Boulders Homeowners Association (the “Association”) hereby petition the Board and the President to call a Special Meeting of Members in accordance with Article IV, Section 3 of our Association’s Amended and Restated Bylaws adopted 12 May 2000 (the “Bylaws”).
The purpose of the Special Meeting shall be to amend our Association’s Amended and Consolidated Master Declaration of Covenants, Conditions and Restrictions adopted 12 April 2012 (the “CC&Rs), in accordance with Article 14.2 of that document, and to amend the Bylaws in accordance with Article VII of that document.
The first proposed amendment to the Bylaws shall be (i) to delete the current heading of Article IV thereof and replace the heading with the text as shown below, and (ii) to add a new Section 10 to Article IV thereof, which shall read as follows:
ARTICLE IV
MEETINGS AND POWERS OF MEMBERS
Section 10. REAL PROPERTY OF THE ASSOCIATION. Any alienation of any interest in any real property of the Association, whether by sale, transfer, lease, rental or any other means (including any grant of any right to use or any other interest therein, which shall expressly include the grant of any easement pertaining to any part of any such property) shall require as a prerequisite thereto the affirmative vote of at least fifty percent (50%) plus one (1) of the members of record of the Association then entitled to vote, and any action attempted by any person or persons (including any Officer, the Board of Directors, or any member thereof) without having received in advance said affirmative vote, shall be ultra vires and thereby null, void and without any legal effect.
The second proposed amendment to the Bylaws shall be (i) to delete the current heading of Section 2 of Article V thereof and replace the heading with the text shown below, (ii) to add a new reference to the existing text of Section 2 of Article V as subsection (a) of Section 2, and (iii) to add new subsections (b) and (c) to Section 2 of Article V, which shall read as follows:
(b) In the event of a threatened taking (as defined in Section 9.1 of the Restrictions) of all or any portion of the Common Areas (as defined in Section 1.12 of the Restrictions), the Board shall delegate, in accordance with Section 9.2 of the Restrictions, a partner (or person of equivalent status) of an independent law firm who is authorized to practice in the State of Arizona and who is generally recognized as a specialist in the area of real estate law (and eminent domain in particular) to represent all of the Owners and Members in connection with such threatened taking. For purposes hereof, a law firm shall
Section 2. POWERS AND DUTIES; LIMITATIONS THEREON.
be deemed “independent” only if it does not customarily represent the Association in connection with other matters.
(c) Except as otherwise expressly permitted by Section 10 of Article IV of these Bylaws, neither the Board of Directors nor any Officer of the Association shall have any power or authority (i) to sell, convey, alienate, or otherwise transfer any real property owned by the Association, or (ii) to grant any interest in or right to use any real property owned by the Association (which shall expressly include any easement, lease, right of use or passage, or any other right or interest of any nature whatsoever). Any action attempted in contravention of this provision (including by any Officer, the Board of Directors, or any member thereof) shall be ultra vires and thereby null, void, and without any legal effect.
The one proposed amendment to the CC&Rs shall be (i) to delete current Article 9.2 thereof in its entirety, and (ii) to substitute in lieu thereof the following language:
9.2 Representation in Condemnation Proceedings. In the event of a threatened taking of all or any portion of the Common Areas, the Owners and Members hereby appoint the Association to represent all of the Owners and Members in connection therewith. The Association, acting through the Board, shall designate a partner (or person of equivalent status) of an independent law firm who is authorized to practice in the State of Arizona and who is generally recognized as a specialist in the area of real estate law (and eminent domain in particular) to represent the Association (and, thereby, all of the Owners and Members) in connection with such threatened taking; provided, however, that neither a voluntary sale of any portion of the Common Areas, nor any settlement of any eminent domain, condemnation or similar action, shall be authorized, consummated, or valid without first having received the affirmative vote in favor thereof of a Majority of Members. For purposes hereof, a law firm shall be deemed “independent” only if it does not customarily represent the Association in connection with other matters.
____________________ _________________________________ (date) (signature)
_________________________________ (print name)
__________________________________ (address in The Boulders)
Proxy Appointment
The undersigned, being a Member of the Boulders Home Owners Association (“BHOA”), grants this Proxy to David M. McKeown (my “Proxy”) with respect to the matters specifically identified below.
I understand that the Secretary of BHOA has received a sufficient number of signatures from BHOA Members on a petition such that a Special Meeting of Members is now required to be called to consider certain specific proposals to amend the current Amended and Restated Bylaws of the Association (the “Bylaws”) and the current Amended and Consolidated Master Declaration of Covenants, Conditions and Restrictions for The Boulders (the “CC&Rs”). This Proxy Form relates to (i) my attendance at such Special Meeting by Proxy for purposes of reaching a Quorum as required under the Bylaws and (ii) my instructions as to how my vote shall be cast with respect to each of the matters scheduled to be considered at the Special Meeting.
Item 1: I instruct the Secretary to consider, by virtue of this Proxy Form, that I am in attendance at the Special Meeting.
� YES � NO
Item 2: With respect to the proposed amendment of Article IV of the Bylaws as described in the
petition, I instruct my Proxy to vote:
� IN FAVOR � AGAINST � ABSTAIN
Item 3: With respect to the proposed amendment of Article V, Section 2 of the Bylaws as described in
the petition, I instruct my Proxy to vote:
� IN FAVOR � AGAINST � ABSTAIN
Item 4: With respect to the proposed amendment to Section 9.2 of the CC&Rs, I instruct my Proxy to
vote:
____________________ (date)
� IN FAVOR
� AGAINST � ABSTAIN
_________________________________ (signature)
_________________________________ (print name)
__________________________________ (address in The Boulders)
4

Town of Carefree Communications

Mayor's Responses to Questions January 2021

January 5, 2021 Carefree Town Council Meeting Remarks of the Mayor after the reading of BHOA homeowners’ letters
Those are all of the letters which we have received and they have individually been read into the record. They will be kept. We will forward them to the UCFD board of directors for their next meeting, which are the council members who have received them now.
I guess a couple of things that come out of this. Number one, we are scheduling two meetings to come up to address this in its entirety. The first one is on February 2nd and we're targeting for four o'clock. We will put out the information on it, unfortunately we'll have to be Zoom again, but we will provide a comprehensive look at everything pertaining to this, including the impact upon rates and the sites that we looked at.
It's evident to me that there's been a lot of miscommunication to residents from people who did not have knowledge, but portrayed that they did. And let me tell you some of the things that have happened that lead to this. First let me say though, the second meeting will be a week later on February 9th, where we will address this in its entirety. First presentation, I would encourage everyone who has an interest on this to participate in, because Greg Crossman, the UCFD, the Carefree Water Company will present everything we know and there are reasons for this.
The first thing is when we started off communicating, the UCFD started off communicating with the Boulders back, as I think it was Abby Renfro said, or another individual, in November of 2019. We also, the UCFD made sketches and then put them out at the West pool in the north Boulders, and I was there for a three hour time and there were probably six people that came to look at those before and after.
After that, Dr. Ryan filed suit and recognize there was also a suit that was filed which we filed against Cave Creek water. And once something goes into litigation, the town policy which we follow is that shuts off all communication. So you can thank those who filed suit against us, against the UCFD for ending all communication on this. Because at that point in time, we were not going to communicate anything further because it ended up just being used against us in one form or another. So the litigation against the town against the UCFD, against the water company has been a major contributor to the lack of communication and our shutting off that.
But I would make a couple other observations as well. There are 43 homeowners associations in Carefree of which the Boulders is one. If we were to talk to the other 42 of them, part of what we would see is the same pride, the same "don't put it in my backyard" as what we're seeing here from the Boulders people. That's understandable, you know, you get down to it has to go somewhere, but don't put it by me.
The problems that are being faced by the 530 homes, 1000 plus people on the west side of Carefree are very real. Let me just read you something that was in a quarterly statement from Cave Creek water, who services those households, was required to send out to them. And I'll read from the note here, some people who drink water containing trihalomethanes in excess over the maximum level with many years experience problems with their liver, kidneys or central nervous system, and may have an increased risk of getting cancer. That is not something that a town council who is responsible, can't stand on the sidelines and say, well, isn't that too bad, we'll just continue going.
But once the council made the decision, once UCFD made the decision, we're going to impact this, we're going to change it, then we get into that requires another water storage reservoir somewhere in the Boulders, not in the Boulders, but in the Carefree area. There is an engineering study which was commissioned. It looked at seven sites as I recall on a series of criteria, they came back and we'll get into this in much greater depth, but this site that they proposed and identified in the Boulders was the one which was clearly the one which was the preferred. It was other ones were literally in people's backyards, et cetera.
So, you know, we're going to come back on February 2nd, we're going to address this in total, by that time we're nearing conclusion of the litigation with Cave Creek and we'll be prepared to talk about these, but I'd like to clear up, there are misconceptions. I've heard industrial complex, I've heard water towers above ground. None of those are correct. And I don't know where that information is coming from, that the proposed water reservoir which we had been talking about with the Boulders North homeowners association was buried. It was three feet above the ground. It was covered over and it was landscaped. More recently we have been told by OSHA that we need to put in some stands there for the electronic controls. But there's a lot of things that we're going to get into on February 2nd.
So with that said I'm going to end it. I thank you all. I appreciate the pride which every one of you have in your Boulders community, my Boulders community where I live also, but let me assure you that the other 42 HOAs have that same pride. The Boulders is currently served by a water reservoir in another community to the north of the Boulders. So having said that I'm going to close this off for this time and go on to the last thing on our agenda.

2021 Carefree Water Company Board Presentation: Acquisition of Neighborhoods - 2/9/2021

2021 Carefree Water Company Board Presentation: Boulders Underground Water Storage Reservoir - 2/9/2021

Water Acquisition Financial Impact Analysis: Willdan Carefree UCFD Presentation 2/9/2021

Carefree Water Board Meeting Recording 2/9/2021

See Below

Water Informational Meeting

Water informational meeting: 2/9/21
Carefree Truth #890: Water informational meeting, pt. 1 of 8: 2/9/21 http://carefreetruth2.com/carefreee-truth- 890.html
Carefree Truth #891: Water informational meeting, pt. 2 of 8: 2/9/21 http://carefreetruth2.com/carefree-truth- 891.html
Carefree Truth #892: Water informational meeting, pt. 3 of 8: 2/9/21 http://carefreetruth2.com/carefree-truth- 892.html
Carefree Truth #893: Water informational meeting, pt. 4 of 8: 2/9/21 http://carefreetruth2.com/carefree-truth- 893.html
Carefree Truth #894: Water informational meeting, pt. 5 of 8: 2/9/21 http://carefreetruth2.com/carefree-truth- 894.html
Carefree Truth #895: Water informational meeting, pt. 6 of 8: 2/9/21 http://carefreetruth2.com/carefree-truth-

895.html
Carefree Truth #896: Water informational meeting, pt. 7A of 8: 2/9/21 http://carefreetruth2.com/carefree-truth- 896.html
Carefree Truth #897: Water informational meeting, pt. 7B of 8: 2/9/21 http://carefreetruth2.com/carefree-truth- 897.html
Carefree Truth #898: Water informational meeting, pt. 7C of 8: 2/9/21 http://carefreetruth2.com/carefree-truth- 898.html
Carefree Truth #899: Water informational meeting, pt. 7D of 8: 2/9/21 http://carefreetruth2.com/carefree-truth- 899.html
Carefree Truth #900: Water informational meeting, pt. 8 of 8: 2/9/21 http://carefreetruth2.com/carefree-truth- 900.html

BHOA Board Communications

Water Tank Summary of Important Facts 2/5/2021

Water Tank – Summary of Important Facts
At the February 2019 initial “at site” meeting between Carefree, the water company and BHOA board members, the BHOA Board President clearly stated to all present that the BHOA common land was not for sale. This position has never changed.
Legal Representation & Strategy

• As a precursor to this first “at site” meeting, BHOA legal counsel, Carpenter Hazlewood (CH), wisely negotiated an indemnification agreement with the Town of Carefree to pay BHOA legal fees in case of a related lawsuit. Subsequently, Carefree is required to pay certain BHOA legal bills regarding the Ryan lawsuit. CH represents only the BHOA in this action, Carefree has no control over the BHOA defense strategy, and the indemnification agreement has saved the BHOA significant legal fees.
  
• The BHOA board has worked with CH from day one to attain the best outcome for all 325 BHOA members with the general goal to retain ownership of the land and ensure architectural and landscaping control.
  Where We Are Today
  

• The BHOA has not received an official offer from Carefree regarding the buried water tank. Once an official offer is received, the BHOA will continue to work with CH to determine the best path forward for the benefit of all 325 members. Until a specific official offer is made by Carefree to the BHOA, the BHOA has no formal, legal offer upon which to respond and share with members.
  
• Carefree recently announced their intention to condemn the BHOA common land in order to avoid threatened multiple and on-going lawsuits that were read at the Town’s Open Session (1/5/21). This announcement represents a change from their previously stated desire to negotiate a mutually acceptable agreement that would leave the BHOA as owners of the common land.
  Financial Implications
  

• While the BHOA has insurance coverage that may cover certain legal expenses when the BHOA is sued, any lawsuit initiated by the BHOA against Carefree or the water company to proactively prevent condemnation will NOT be covered by insurance. Any future legal actions initiated by the BHOA may require a special assessment of all members.
What Comes Next / Future Implications

• The BHOA retains all options in responding to the potential condemnation, including negotiating or litigating specific terms of the offer. It is important to understand that stopping the condemnation proceeding altogether is difficult. Again, we have ceded no rights or options, but we feel it responsible to set residents’ expectations realistically. As always, the BHOA will receive detailed legal counsel before making any decisions.
  
• Of great concern to all BHOA members is that more common area will be taken in the future for private purpose and economic development. Arizona law has certain protections against this at A.R.S. 12-1131 and A.R.S. 12-1136.
  Want to Learn More?
  

• On February 9th, the Carefree UCFD will hold an open meeting to share their vision and answer questions. We will publish meeting specifics and hope you will attend and participate.

Water Tank – Summary of Important Facts #2
At the February 9th meeting held by the Carefree Water Board of the Utilities Communities Facilities District (UCFD), the board voted unanimously to proceed with “all actions necessary to acquire” approximately 0.8 acre of BHOA common land (PA 216-33-451B) to install a 300K gallon buried water reservoir and supporting utility equipment. “Exercise of eminent domain” was specifically authorized in the resolution, and we believe this will likely be the path taken by the UCFD.
Meeting Specifics
 The UCFD meeting lasted approximately four hours and can be viewed in its entirety from the bouldersnorthhoa.com website, Water Storage Reservoir Information page, “Carefree Water Board Meeting 2/9/2021” link. The presentation slide decks with photographs are posted as well.
What is Eminent Domain
 Eminent Domain is the power of the government to take private property and convert it into public use. The Fifth Amendment provides that the government may only exercise this power if they provide just compensation to the property owners.
Can Eminent Domain be Overturned?

•   There are essentially three legal standards to challenge eminent domain in the courts.
  1. Challenge the value of the land taken (easiest).
  2. Prove the condemnation does not result in the least private injury (difficult).
  3. Prove the decision of land necessity was made either fraudulently or arbitrarily (most difficult).
•   Our legal counsel, Carpenter Hazlewood, will advise the BHOA as to our options across these three standards. Obviously, legal decisions relative to any of the three standards must weigh the cost and risk of the challenge versus the value and probability of a favorable outcome.
  Next Steps

•   The UCFD will make an offer to the BHOA for the parcel based on their appraiser’s valuation. The BHOA will have an appraiser and property damage specialist provide independent valuations.
•   After a detailed legal analysis is provided by Carpenter Hazlewood, the BHOA board will decide next steps for the best recommended path forward for the benefit of all 325 members. Essentially, the decision will be to litigate or negotiate to a final resolution.
  Other Concerns

•   This eminent domain case does NOT create a legal precedence for any future public condemnation actions of BHOA common lands (the so called “domino effect”).
•   Under Arizona law the BHOA Board has several duties:

o Duty of Care – the requirement that one be informed, reasonable and communicative before acting or voting.
o Duty of Loyalty – The responsibility to act in the best interests of the community as a whole rather than the interest of any subset of the community. This requires the use of objective rather than personal judgements. Also included is a duty of confidentiality.
o Duty to Act within the Scope of Authority – the requirement to adhere to governing documents, CC&Rs and relevant state laws, neither violating nor exceeding the scope of those controlling documents.

•   As a group, the Board does its best to adhere scrupulously to all its legal duties and responsibilities. We would like to advise residents therefore to rely on statements from the entire Board; we are unfortunately not currently able to assure residents that conversations with or publications by individual Board members will always adhere to the required standards. Statements issued by individual Board members do not reflect the position of the Board.
•   The BHOA Board has carefully followed advice from counsel throughout this process. Our legal team includes attorneys specializing in both HOA and eminent domain law, and we intend to make future decisions informed by their advice.
•   We recognize it is not productive to respond to every assertion or misstatement, but a short comment from the Board may be appropriate: recent charges of Board acquiescence to the town are incorrect, charges of seeking personal advantage rather than public benefit by board members are both incorrect and insulting, and charges of working for a negotiated capitulation are pejorative and misleading to the extent they have any meaning at all.
•   The Board will provide future updates as more information becomes available.

BHOA Board Statement on Town of Carefree Lawsuit - 4/30/2021

Statement of the Boulders Homeowners Association Board of Directors
Dear Fellow Homeowners:
You likely will have seen (or heard) the news that the Town of Carefree has filed a lawsuit to seize a portion of our Association’s pristine desert land (in which each of us has an ownership interest) for the construction of a 300,000 gallon water storage tank – along with the infrastructure, machinery and equipment required to operate this type of an industrial facility. Rather than going through our Management Company (as would be customary), a self- proclaimed “officer of the court” came into The Boulders on Wednesday evening to locate the Association’s President and serve him with a summons at his home. This extraordinary action follows in the wake of the refusal of the Town and its lawyers to even speak with representatives of the Board regarding the Town’s offer to purchase our property – for the paltry sum of $20,100.
What We Are Doing
Your Board is obligated to act – and the current Board always will act – in the best interests of the Association and you, its members. We have engaged excellent counsel to defend the property rights of the Association and each of you. The Town wishes to take our land to facilitate a more than $20 million Water Company expansion project that will not (and cannot) provide any water to The Boulders – a project that lacks any credible justification and would duplicate existing costly infrastructure. To accomplish this, the Town intends to rely on the unfettered power of government to seize our private property, notwithstanding other equally suitable properties being available to it on the market – some of which were even offered to the Town for free.
We understand that many of you have valid concerns about the potential cost of condemnation litigation, given how the law and courts are biased in favor of the government in such cases. But it is important to distinguish between efforts to contest the power of the Town to utilize eminent domain (which ordinarily would be fruitless) and those that will maximize the “just compensation” (to use the words of the U.S. Constitution) that the Town must pay. The demonstrated unwillingness of the Town to offer us reasonable compensation and even to engage in any discussion on this question leaves us no choice but to litigate the issue of just compensation. Other interested parties, however, may approach us wishing to fund a challenge to the power of the Town to exercise its confiscatory power of eminent domain. We promise to work tirelessly with them to assist in any and all such efforts without incurring significant expense to the Association or the members.
We are mindful that Town officials have publicly emphasized on many occasions that they are searching for every possible means to foster commercial as well as the present industrial development within Town limits. Public documents disclose how the Town is working to develop the 21-acre parcel across from The Boulders on Tom Darlington and around the corner along Carefree Highway (now classified as “very low density residential”) into a commercial district to include grocery stores, shops, a possible resort and higher density residential units. The Town’s immediate plans also include the sale of the current Town Hall as part of the “redevelopment” of Downtown Carefree. Public documents regarding this plan make clear that the use of eminent domain is anticipated – and presumably would be used to acquire a new site
for Town Hall (along with necessary parking and any other relocated facilities, such as the Town Council chambers) that would not in any way diminish the size of the planned commercial developments. Members of our Association are justifiably concerned about the likelihood that the Town has plans to seize additional common area land from The Boulders in order to relocate Town Hall and these other public facilities.
The Board is duty-bound to defend both the current lawsuit as well as the continuing threat the Town poses to the Association’s ownership of the pristine open space common areas within The Boulders. We realize that the size and unspoiled nature of our open space common areas are what make The Boulders a unique home, and the beauty and peacefulness of this setting is why so many of us chose to live here. The Association in the current lawsuit therefore will take every possible action to demonstrate the significant value of our common area land, and the grave damage that the Association and you, its members, would suffer if the Town were to succeed in its efforts to despoil our community of its most valuable asset.
What You Can Do
We know that the majority of members share the belief that our property must be protected. This is why so many of you participated in the endurance test that overwhelmingly resulted in the recent amendments to our Bylaws and CC&Rs that now prohibit the Board from entering into any voluntary transaction that would alienate any part of our common area land without the approval of a majority of the members. If you are outraged by the actions and plans of the Town of Carefree that would deny our private property ownership rights, here are a few things you might want to consider doing:
Join Us on the Board: We continue to look for persons who are willing to participate in the upcoming vote that will determine the remaining four directors on the Board. We would love to have your help.
Register to Vote in Arizona: Many Boulders residents live here only part-time and continue to vote “back home.” Consider whether you qualify to vote here in Carefree where your vote can make a real difference. The Town says that a major reason for the Water Company expansion project is because the Carefree residents who now receive Cave Creek water have no “representation” in Cave Creek government. This is despite the fact that Cave Creek, but not Carefree, has a “Water Advisory Committee” composed of citizens – always including a Carefree resident – that works with the water company to set rates and make important decisions. Carefree Councilman Tony Geiger (the very face of the bloated Water Company expansion project that now threatens The Boulders) was the Carefree resident on this committee for a number of years. The persons truly disenfranchised are those Carefree Water customers who do not vote in Carefree. Think about making a change.
Tell Your Friends and Neighbors: It is amazing how many people remain uninformed on these issues. Help to educate the people you know and care about – before they learn the hard way after water costs have skyrocketed and one of the last stretches of unspoiled desert in Carefree has been industrialized.
Look for Additional Information: Since last October Board member Don Schwarzkopf has circulated a series of six reports (available at https://www.bouldersnorthhoa.com/water-tank/ in the section “Boulders North Member’s Comments”) that discuss the proposed water tank and the project behind it. He currently is preparing a seventh report that will address the Town’s lawsuit and the many inaccuracies contained in the Town’s “Water Facts” public relations campaign. For example, the statement: “The water tank will be fully buried.” Please visit the area near the #3 hole on the South Course to see the flagged “story poles” that indicate the sheer size and height of the tank – not considering the soil that would be placed atop and around the sides of the tank structure, nor the destruction to the surrounding area that will result from the necessary adjacent construction activity. This new report will be distributed via Don’s mailing list and will also be posted to the BHOA website as noted above.
Let Town Officials Know How You Feel: Write to Town Hall. Although a majority of the Town Council (coincidentally) resides in the Carefree Water expansion area and therefore are staunchly in favor of this project and the tank, guilt sometimes can work wonders. And for those of you who may not already know, the Mayor is also our neighbor. Those of you that know him or wish to directly share comments can drop by and let him know what you think.

BHOA Board Statement on Town of Carefree Lawsuit - 6/18/2021

Dear Fellow Association Members,
As you no doubt are aware, our Association has been named as the defendant in a condemnation action by the Town of Carefree, in which the Town seeks to seize approximately 3/4 of an acre of our open space common land for the construction of an industrial water storage facility along with ancillary equipment to operate and maintain the tank. The Board, in accordance with our revised CC&Rs, has engaged Dale Zeitlin as our counsel in this matter. Mr. Zeitlin has managed the defense of scores of private property owners in complex eminent domain actions, and he will bring his particular set of skills to bear in his representation of our Association in the current matter. (Mr. Wilenchik will continue to represent the Association in the Ryan litigation.)
Arizona law specifically recognizes the fact that the board of directors is entrusted with acting on behalf of (and in the best interests of) a corporation in determining the appropriate strategy to pursue in any major litigation. This recognition is evidenced in the specific provisions of the Open Meeting Law, which in the case of HOAs grants a blanket exemption from the constraints of that law to meetings of the board that consider pending HOA litigation. The reason for this exemption is that the board, in discharging its duties to the corporation, must have the ability to preserve the confidentiality of its decisions and strategy and to prevent damaging disclosures of sensitive information to its
adversaries. Such confidentiality is essential for the preservation of our attorney / client privilege.
For this reason, and on the advice of counsel, neither the Board, nor any director, will entertain any questions regarding the current litigation or any ancillary matters, either at any Open Meeting or on any other occasion until this matter is resolved. We will continue from time to time to post to our website publicly available documents that contain describing significant developments, and of course any homeowner is free to monitor the progress of the litigation by following the public court filings. But it is the official position of the Board and each director that there is no comment to be made on the case publicly, including to the membership (as well as to any individual member). This extends to related matters such as valuation issues, appraisals and appraisers, procedural questions, engagement and advice of counsel, and overall strategy.
Finally, the board is aware that some of our association members are involved in political activity within the town of Carefree to defend our association’s common land and improve local governance, including ballot that may be presented to the citizenry for consideration. The board does not intend to adopt any formal position on such initiatives, but for transparency and members’ convenience related materials and responses from town officials may be posted on our BHOA website, in a separate section under
the water tank information heading.
We know that every member who has the best interests of the Association and its members at heart will understand and respect this policy, and we thank you in advance for your cooperation.

Boulders North Member's Comments

Mo Benedetto - 2/1/2021

Gen Beaulac
From:
Sent: To: Subject:
Good Monday morning Gen. We would like the attached to be published on our HOA water site.
This weekend we observed the flags several neighborhood homeowners erected on the sight of the proposed water tank off Tom Darlington. To our knowledge, the flags depict the actual height and width of this proposed water plan. What an interesting perspective from Tom Darlington, the driveway of the Ryan’s and what the golfers/resort guests will also experience from the third hole of the south golf course. Every homeowner in the Boulders and the town government should look at this proposed site from all the areas. We feel quite certain every homeowner and the town should agree they would not want this huge structure almost literally in their back yard when it feeds water to homes many miles away. We believe the flags placed in the ground do not take into consideration the taller brick wall that will surround the tank nor the structure for a building.
Apparently there are other sights that are referenced on our HOA website that have not been investigated. Why? We
Mo <mobenedetto@gmail.com> Sunday, January 31, 2021 9:54 PM
Gen Beaulac
Letter to put on our water tank HOA site
are losing our pristine desert in the Boulders. and rolling.
Respectfully
The Benedetto’s Sent from my iPad

Dan Miller - 5/23/2021
Gen Beaulac
From:
Sent: To: Subject:
Gen hi,
I hope you can post this letter to the website as a member comment. Thanks,
Dan Miller
Begin forwarded message:
From: DS Miller <dsm1096@gmail.com>
Subject: Friday's BHOA Board Meeting
Date: May 23, 2021 at 10:31:14 AM MST
To: Bernie Pistillo <bpistillohoa@yahoo.com>
Cc: M Miller <millermcm72@gmail.com>, "maryroberts261@gmail.com" <maryroberts261@gmail.com>, Les Peterson <passagesaz@cox.net>, Phil Clement <carefreepac@gmail.com>, Sue Clement <suewclement@icloud.com>, Sue Gilles <suesonfirst@yahoo.com>
Bernie,
After Friday’s board meeting and the back & forth during the members’ forum, one would conclude that many of us are very disappointed in the direction that the board and you are taking on the water tank matter. This contentious issue has overshadowed all the good work you and the other volunteers have been doing.
You have decades of legal experience having been with one the premier law firms, Morrison & Forrester. Your strategy to consult another attorney to advise you as to which specialty firm to hire for the water tank valuation seems an unnecessary duplication of expense to the BHOA.
You and Mayor Peterson have had an ongoing dialog, why not just sit down and negotiate a settlement and get on with the real work of the BHOA such as security, website, roads, etc.?
The message from the members attending the last meeting was clear ‐ we don’t want substantial legal fees incurred that would exceed the valuation of the water tank lot. Taking this matter to a judge for a valuation decision would seem to be a losing proposition as the legal fees would most likely eat up any gain. In my opinion, it is highly unlikely that this lot will garner a valuation anywhere near $100K, so the up side is very limited for the BHOA.
Everyone involved has conceded that we cannot fight the condemnation proceeding. So, we implore you to reconsider your current strategy and negotiate directly with the city to resolve this matter.
DS Miller <dsm1096@gmail.com> Sunday, May 23, 2021 10:33 AM Gen Beaulac
Fwd: Friday's BHOA Board Meeting
Respectfully,
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Dan & Marina Miller

Martena Miller - 3/3/2021
BHOA Board Members,
It is nice to be able to directly contact you. It’s hard to feel that you care about what I, or any other resident, thinks when you hide behind a third party gate keeper. Bob and I have lived in several HOAs over 60 years, including several in AZ during the past 26 years. BHOA is the only association we’ve lived in where board members were not directly accessible by phone, text or email to the people they actually work for.
I’m sick and tired of this board’s lectures whether it be on deportment or vilifying solid research by the residents that differs from your desires. You can’t abolish free speech or slander your BHOA members. When you don’t listen to differing opinions, citizens will act out accordingly. I’m a highly educated and respected professional as is my husband. I truly resent your implication that we don’t know what’s going on. Believe me, we do as do many other residents.
Your recent community correspondence about the “Duties of an HOA” are laughable. Yes, those are the duties, but your interpretation is a CYA. You violate each and everyone of them. There has been almost no factual ( I mean real evidence) information, no transparency, no concern for what the residents want or think, no open mindedness. You are not accessible to question or for clarification. I loved “ the board does it’s best to adhere to all it’s legal duties...” I especially thought it was wonderful mindlessness and incredible arrogance and disrespect for you to say in a community wide memo that we should only believe what the certain board members say and not to listen to other board members who disagree.
You’ve got to be kidding. If you’d done your due diligence and duty, you would have uncovered all the information and evidence that you dismiss out of hand. That poorly done and regrettable “Dog and Pony” show by the Water Company would have gotten a D-/F grade for my high school students. The presenters made huge, unprofessional mistake. The primary goal of a presentation is to know your audience and what needs to be achieved. No where in that dreary presentation was there any attempt to show, truthfully, why a $19,000,000 expenditure was necessary, and why other options weren’t actually considered. The list of properties that were “looked at” is a completely unresponsive and offensive statement. Is a drive-by considered adequate research? No where did the presenters address the issue of what current water company clients feel about this project. There has never been a vote!!! Assurances of actual costs for borrowing the funds, real water rate increases, total building costs in light of this very shaky economy and unusually low interest rates were brushed over like a rainbow. Beautiful but fleeting. I will say the charts and diagrams were well done, especially the yellow flowers on the mound that will attempt to cover the reservoir. Very colorful. They were talking to the choir, but there are many, many of us who are not convinced. And, no attempt was made to do so. The immediate vote, with no opposition or discussion immediately following the presentation was disgraceful. I can’t imagine that any thoughtful person on the board wouldn’t have considered what the public reaction would have been for that display of arrogance.
On the other hand, you have seen much careful, high quality research and thoughtful information on this project. And, it has been presented to residents as well as to the BHOA members. These presentations have been thoughtful, intelligent, understandable and thorough. Facts were uncovered, presented and left to us to decide how we feel. Alternatives discussed. This showed excellent research and understanding. Yet, our board says “believe me, don’t question us.” “We know best.”
Over 40% of BHOA members have signed a petition to change a portion of our by laws. That’s significant! Why didn’t you call an immediate Special homeowners meeting to address OUR concerns? Because you fear that it will pass and many of you will not be reelected? Just a
thought. This is an issue that needs immediate consideration. It’s time sensitive. You were asked several times to call the meeting, and you refused. Our by-laws allow it even if you say you don’t think it is necessary. It is incredible that you could actually say that it is time sensitive but needs to be delayed. This appears to be a purposeful delaying tactic rather than an appropriate action.I wonder where the adults are in the room?
You have a duty to serve BHOA members and not to delay calling a special meeting to vote on changing our by-laws. By delaying you are actually giving proof that you’re inflexible. Stonewalling. We need to protect our beautiful, special property, owned by all residents, from greedy politicians and their lackeys. You say this move would not set a precedent, but you’re wrong. Please look up the meaning of precedent in a dictionary. Further more, we need to feel comfortable that our HOA truly represents us, not their special interests. Also, we need to be sure that Carefree is spending our money wisely and that our usage costs and debt obligations don’t become prohibitive.
I will close by reminding you that you’re in the process of destroying this community. Like our country, we desperately need intelligent, thoughtful leadership that considers all sides, garners and respects opinions which differ. Where elected representatives truly represent the desires of the community and truthfully communicate with us. What was once a friendly, lovely place to live is becoming segregated and angry. If you can’t represent the needs of Boulders North residents, you should resign.
Respectfully, Martena Miller

Bernie Pistillo - 1/27/2021

Bernie Pistillo - 2/2/2021

Bernie Pistillo - 3/1/2021

Dear Members of the BHOA Board of Directors,
Thank you for asking representatives of the Board (Pat Brassill and Bill Oelman) to speak with some of us who have been involved in the above petition. Personally, I found it to be very helpful to be able to communicate the specific concerns that I have heard from homeowners, and to discuss with these Board members possible solutions that should be agreeable to all involved.
As you probably are (or will be) aware from your fellow Board members, it has become abundantly clear that a majority of the members of our Association wish for the Board to refrain from taking any voluntary action to sell, lease, or otherwise relinquish ownership or control of any portion of BHOA common area land. In the event that the possibility of voluntary action presents itself to the Board, the majority of our homeowners have clearly stated (by signing the petition) that they wish to have a personal voice in whether to accept any offer. This stems from the fact that our common area land is what defines The Boulders and makes it a unique place to live. Those who have chosen to make this beautiful place their home desire to ensure that it remains as special as it always has been. The members realize that in the event of actual condemnation by a governmental authority, there may well be little that can be done to stop the proposed taking. But they also realize that actual condemnation serves two main purposes: First, it ensures that the property owner (here, BHOA) will receive just compensation, as mandated by the US Constitution, that has been approved by a judge in a court of law. Second, actual condemnation ensures that the actual damages suffered by each relevant party as a result of the condemnation remain compensable. That is, the ability of nearby property owners to bring claims for “severance” damages are only preserved in an actual condemnation (as opposed to a voluntary sale in lieu of condemnation). To the extent that the Association can accomplish this without any significant disadvantage, it has an obligation to Members to refrain from taking an action that would gratuitously harm homeowners who reside near the area that would be converted to municipal use. There is no valid reason for the Association to extinguish the property rights of Members in order to make condemnation easier or less expensive for an entity that is seeking to seize our land.
There have been statements made to suggest that condemnation would be both expensive and unwinnable. But the simple fact is that a condemnation action in which the validity of the proposed taking is not contested will serve only to establish the value of the subject property in the hands of the BHOA and will be no more expensive than entering into a voluntary sale or similar transaction: both processes require surveyors, valuation experts and, lawyers to negotiate the specifics of any transfer. If the Association determines that it will not contest the validity of the condemnation claim (which is the expensive and uncertain part of any condemnation litigation), there will not be any material incremental cost to the BHOA as a result of proceeding on the basis of an actual condemnation. Furthermore, a court determination of the value of the subject property provides the BHOA and its Board with an unassailable defense to any question of whether it acted properly and in a manner that maximized recovery by the BHOA. Lastly, the Board now has the knowledge that a majority of homeowners wish to prohibit the Board (or any person designated by it) from entering into a voluntary sale or other disposition of any common area land. This fact must be taken into account by each individual Board member in deciding how to respond to any potential offer from the Town. Any attempt to ignore the wishes of a majority of residents that have been expressed in such very clear terms could easily amount to bad faith, exposing individual directors to personal liability for all homeowners who have suffered damage as the result of a voluntary sale.
I urge each of you to allay the fears and concerns of residents and reassure them that the Board will not take any voluntary action to transfer or make available any common area land of the BHOA in the
absence of a court order. My personal view is that virtually every person who has asked for a special meeting to consider and vote upon changes to our governing documents would be satisfied for any action on those documents to be deferred until the current potential seizure has been either determined by a judge or dropped by the Town. This course of action has many merits, including maximizing recovery to the BHOA, preservation of compensation rights for the relevant members, and limiting the potential exposure of individual Board members to lawsuits that are not covered by insurance.
After having had the discussions with Pat and Bill (as well as with numerous residents), I am extremely hopeful that the Board will act prudently and in a way that best protects the rights of both the Association and its members. It would be perilous at best for the Board to ignore the clear benefits of requiring the Town to pursue an actual condemnation action, not to mention the fact that a majority of homeowners have voted to insist that the Board not engage in any voluntary transaction. Any voluntary disposition would open the Board members to probable legal action and the prospect of personal liability. Any effort by the Town to tempt the Board with an offer for a voluntary transaction is merely a ruse: its true purpose would be to decrease the overall acquisition cost to the Town by foreclosing the possibility of severance damage claims from other Boulders residents, and the effect of Board acceptance of such an offer would be to shift the rightful obligation of the Town (for severance damages) to the individual Board members. The homeowners have enough sophistication to view any voluntary sale for the betrayal that it would be. Aggrieved members would be perfectly justified to pursue claims for damages against those who would have done them wrong. But I believe that our community will not need to resort to any such actions because their representatives on the Board will ultimately determine that the clear interests of the Association are wholly aligned with those of the membership, and anything short of an actual condemnation by the Town will not be acceptable.
Kind regards, Bernie
Bernie J Pistillo
Morrison & Foerster LLP
425 Market St. | San Francisco, CA 94105
Tel: 415.268.7041 | Mobile: 415.370.3605 BPistillo@mofo.com

Don Schwarzkopf - Report 1 - 10/4/2020

Report to Members of the Boulders Homeowners Association regarding the Proposed Water Storage Tank
The complexity of this topic has allowed Carefree town officials and their supporters to keep association members in a state of ignorance and inaction. This report seeks to end that.
It is unjust and unnecessary to devalue our association’s preserved open desert land for this purpose. There are several good alternative sites. The takeover of Cave Creek’s water customers by Carefree elevates political objectives over engineering logic. The natural desert of our Boulders community should not be sacrificed for minor engineering advantages in support of that takeover.
Our association members have substantial investments in our community, including our jointly owned common land, and deserve to have enough facts to form their own opinions.
why the Carefree Water Company might need additional water storage
The press has actively reported on the heavily litigated dispute between Carefree and Cave Creek, in which Carefree Water (a utility owned by the town) seeks to take over 527 customers currently served by Cave Creek.
Although this might not occur, the location for additional water storage is being determined now, as Carefree Water will be obliged to act quickly if the takeover proceeds. The neighborhoods involved in the takeover have no water storage of their own, which is necessary to meet peak consumer demands and for fire protection.
The current storage capacity of Carefree Water is adequate for its current network. The need for additional storage only arises because customers involved in the takeover will be cut off from Cave Creek’s existing water storage.
Water storage should not be confused with water supply. Nearly all of the water distributed in both Carefree and Cave Creek comes from the same source, the Central Arizona Project (“CAP”), and it will continue to flow regardless of whether additional storage is constructed in Carefree.
Our association will not benefit in any way from the proposed new water storage tank. We are entirely “upstream” from its proposed location. To the contrary, our
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water rates will rise substantially to pay for duplicating the storage capacity and other infrastructure already existing in Cave Creek.
The neighborhood to be served by the proposed new tank comprises the far western portion of the Town of Carefree beyond the southern terminus of Black Mountain, and includes 332 connections and three undeveloped commercial parcels at the northeast corner of Carefree Highway and Cave Creek Road.
The existing division between the water supply areas of Carefree and Cave Creek arose as a practical engineering solution given the area’s topography - water flows downhill, and this neighborhood is on the opposite side of Black Mountain from the rest of Carefree. The purpose of the takeover is to align water service with the town boundaries, subordinating engineering logic to political objectives.
The vice mayor and two other town council members reside and own property in this neighborhood. The commercial parcels in this area have remained undeveloped, reportedly because Cave Creek will not provide the necessary assurance of water supply. Carefree town officials are anxious to see these parcels developed because of the town’s heavy dependence upon sales tax revenues.
the Carefree Water system
The company’s water distribution system is illustrated in Exhibit A. This diagram is extracted from a publicly available report delivered in August 2019 by CVL Consultants (Coe and Van Loo) to Carefree Water.
Carefree Water’s main 1,000,000 gallon storage tank is shown at the northeast corner of Pima Road and Stagecoach Pass. This tank receives treated water pumped up from Scottsdale, as well as lesser flows from Carefree’s own wells, for distribution throughout Carefree.
The company has two smaller storage facilities to aid efficient distribution, indicated on Exhibit A:

• −  two 150,000 gallon tanks on Silver Saddle Drive; and
• −  a 500,000 gallon tank on Up and Down Place.
  Both of these facilities are located in residential neighborhoods, far from main roads. Water must be pumped uphill to the tanks on Silver Saddle, while the Up and Down tank at 2525 feet is lower than the main storage tank’s elevation of 2550 feet. Our association is served by the Up and Down tank.
  The town’s preferred location for an additional 300,000-gallon storage tank on our association’s common land is also shown in Exhibit A. Use of the same symbol as for existing tanks implies that this site was considered to be final before August 2019.

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Exhibit A clearly delineates the neighborhood to be served by this tank, at the lower left framed by a solid red line.
The trunk waterlines that will be utilized to bring water from the main tank to this neighborhood can be clearly seen in Exhibit A. An existing 10” waterline runs westward along Stagecoach Pass, through our east gate and southeast through our association along Boulder Drive, Indian Rock Road, Smoketree Road and Boulder Pass, then west to Tom Darlington Drive passing the 3rd hole of the Boulders South course. From this point, a solid magenta line indicates a proposed new trunk waterline continuing down Tom Darlington Drive and west along Carefree Highway.
The proposed tank location on our common land is where the existing waterline running through our community and the proposed new trunk waterline along Tom Darlington Drive happen to intersect. It is important to recognize that the additional water storage could alternatively be sited in various other locations along these existing and proposed trunk waterlines.
what town officials say and what they don’t tell us
Town officials have often admitted that there are a number of different possible locations for the additional storage tank, but they have consistently refused to disclose these alternatives or discuss their precise rationale for preferring the site within our natural open desert land.
Most of the limited information provided by the town was delivered during a ‘town hall’ meeting with association members on November 8, 2019, plus a written list of questions and answers by the general manager of Carefree Water, Greg Crossman, distributed by our association’s management on March 3, 2020.
Mr. Crossman began his presentation at the November meeting saying: “I’m very approachable, I love to talk to residents and customers, so if you ever feel like you need to talk to me here’s my contact information . . . I do really like to talk to customers and try to make myself available . . . if you do have questions or need anything we will make ourselves available.” That has not been my experience. Since my election to the board of our association I have attempted for months to elicit more specific information from Mr. Crossman, without success.
What little has been revealed about the site selection methodology does not inspire confidence that our common land, which has been preserved in its natural state for decades since the founding of the Boulders, would be sacrificed for good reason.
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During his November presentation Mr. Crossman listed six criteria for site selection and displayed a slide, Exhibit B, demonstrating that elevation has been the town’s principal criterion. Exhibit B highlights parcels of land at one particular elevation, 2325 feet, seeking to convince us that our association’s common land (highlighted in red) is the only logical choice.
The fallacies in this presentation are so serious, they suggest a deliberate intent to deceive:

1. i)  As can be seen in comparison with Exhibit A, the rejected sites highlighted in blue are generally not anywhere near the trunk waterlines that will move supply from Carefree Water’s main storage tank to the new service neighborhood. Proximity to these trunk waterlines should have been the principal site selection criterion, not elevation.
2. ii)  The path of blue highlighted parcels crosses the lower slopes of Black Mountain, through terrain that is obviously topographically and geologically unsuitable. Trunk waterlines are typically installed within highway rights-of-way.
3. iii)  Limitingsiteselectiontoasingleelevationmakesnosense. Certainly it is desirable to have gravity feed into the new tank, but every single location along the trunk waterlines supplying the new service neighborhood is lower than the main storage tank.
4. iv)  Itisnaturallydesirabletomaximizegravity-feedpressureatthe point on Carefree Highway where the new trunk waterline will enter the new service area, but this neighborhood is almost entirely uphill from that point - which is precisely why it has historically been supplied from Cave Creek. The CVL report identifies six (6) booster pump stations already existing in the service areas that Carefree Water seeks to take over, and another pump feeds the Silver Saddle water storage tanks. Adding one more pump to the Carefree system would not be unreasonable.

Other site selection criteria to which Mr. Crossman admits, in particular ‘avoiding residential areas’, are obviously not absolute as they are not met by either of his company’s existing secondary storage facilities.
Not included at all among Mr. Crossman’s criteria is any consideration of why our open desert common land, deliberately preserved in its natural state for generations since the founding of the Boulders for the benefit of every resident, is
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qualitatively different from alternative sites which are slated for development and have a single owner willing to sell or donate.
As with Mr. Crossman’s deceptive presentation, Mayor Peterson seems well aware that the town’s preference for taking our land is not well supported by reason. The mayor began the November presentation with an assertion that we in the Boulders “owe” the town’s other residents for the “gift” of removing of the wastewater treatment plant, hoping that moral shaming will cause us to overlook flimsy reasoning.
There are two reasons why the mayor’s assertion lacks credibility. First, the wastewater treatment plant’s removal cost other Carefree residents in just two ways: expenditure by the town and higher utility rates. The water system expansion will have an identical effect, only much larger. It is an unreasonable extra burden to expect us to sacrifice our natural desert land as well. Second, a town news release dated May 13, 2013 under Mayor Schwan affirms that Liberty Utilities and its predecessor had long been committed to shutdown of the plant, based upon extensive engineering studies finding that re-routing the sewage to Scottsdale for treatment would be a lower cost alternative. Removal of the wastewater treatment plant was inevitable, not a “gift”.
there are viable alternative sites
Town officials freely admit that there are multiple alternative sites for the additional water storage tank, but two appear to be particularly suitable as they are in close proximity to the town’s preferred site and on land intended for development rather than preservation. Town officials have not identified any alternative sites, so the two sites are described here simply as examples, without ruling out other possibilities.
Directly across Tom Darlington Drive from the Boulders there are seven adjoining parcels of vacant land. This site is immediately adjacent to blue highlighted parcels on Exhibit B. The owner has offered this land as a site for the additional water storage tank at no cost. He reports that he has been unable to gain the attention of the town or Carefree Water.
The only conceivable objection to this site could be elevation, which is fine for inflow but probably slightly less advantageous for gravity outflow. This implies that town officials consider it appropriate to sacrifice our natural desert common land, merely to save the cost of one additional booster pump station.
The second example is within our community, at the site of the former wastewater treatment plant. There are significant advantages to placing the tank here instead of our common land:
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• −  it is vastly better to rehabilitate a previously used “brownfield” site than to permanently disfigure what little natural desert remains in our area;
• −  the current state of the site is hideous, and is likely to remain so as there are few people enthusiastic about building a custom home there;
• −  the same 10” trunk waterline runs through the site;
• −  it is approximately 50’ higher in elevation than the town’s
  preferred site;
• −  a tank located on this site could probably be further from any
  member’s home, and deeper underground as there has already been extensive excavation (solid rock was found just 13.5 feet down in the town’s preferred site);
• −  the land has a single owner, unlike our common land dedicated to all Boulders residents, and that owner is a willing seller;
• −  a water storage tank has no odor and is nearly silent, and is thus vastly less objectionable than a wastewater treatment plant;
• −  construction traffic for installation of a simple water tank would be far less than for a custom home;
• −  maintenance traffic for a water storage tank would be far less than it has been in the past for the wastewater treatment plant.
  The takeover of Cave Creek’s customers, particularly in the distant neighborhood to be served by the proposed additional tank, imposes sub-optimal engineering because water from Carefree must be piped downhill in order to be pumped uphill on the other side of Black Mountain. Preserving our association’s natural desert common land is at least an equally important justification for less-than-optimal engineering.
  the Ryan litigation
  Our fellow association members the Ryans live immediately adjacent to where town officials want to site the additional water storage tank. Having received no response whatsoever from the town, Carefree Water or our association to a letter sent by their attorney in February 2020 and a notice of claim filed in May 2020, the Ryans proceeded to file suit in July 2020. Key documents in the suit are public and can be found on websites of the Arizona Judicial Branch and the Maricopa County Superior Court. The case number is CV2020-008667.
  The suit relates solely to the easements and restrictions that apply to our association’s common land at the proposed tank site and elsewhere. The Ryans

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contend that there is a preeminent easement preserving “open desert space” for the benefit of all Boulders residents; that a utility easement granted to the developer of the Boulders is limited in scope; and that other county and deeded setbank requirements along Tom Darlington Drive prevent the tank construction that the town has planned.
The position of the town and water company is that our “open desert space” easement does not exist; they are entitled to the utilities easement and it is sufficiently expansive to allow installation of the tank; and that no setback restrictions apply.
For us, members of the homeowners’ association, a victory by the town and water company in this litigation would mean:

• the open desert space easement that has preserved our common land in a natural state for decades, truly the one thing that distinguishes the Boulders Carefree as a community, will no longer be enforceable;
• our association’s common land, in particular the wide swathes along Tom Darlington Drive and Stagecoach Pass, will become open to other large-scale utility installations;
• our association will lose architectural and design control over such installations, leaving us dependant upon merely the goodwill of any parties exploiting the utility easement now and in the future; and
• our association and members will receive no monetary compensation for the use of our common land and the ruin of its natural state.
  The Ryans through their suit are simply attempting to maintain the rights and entitlements of our association, to which we as members all benefit. They stand to gain no personal benefit beyond maintaining the status quo for all of us.
  The town and water company could reasonably have accepted the Ryans’ arguments about the easements, and instead could have made a proposal to our association to purchase or lease the land. This would have allowed our association to retain some degree of architectural and design control, as well as control over any further development. The town always retains the option to forcibly take our land through eminent domain, although this would require payment of compensation to our association. But regrettably the town has chosen the most “anti-Boulders” option, seeking to destroy the open space easement and entitlements that created and sustain our distinctive community while using our land for free.

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On September 15, 2020 all attorneys involved in the case filed a Joint Report, Exhibit C, providing the court with pertinent information about the case. This document describes the parties’ positions as explained above, and furthermore states: “Carefree Water Company and The Boulders Homeowners Association adopt the position and description of the Town of Carefree set forth as if fully stated herein” and “Defendant, The Boulders Homeowners Association has been served and attorney Michael Wright intends to substitute in as counsel for the BHOA in the place and stead for Alexis Firehawk and intends to file a responsive pleading.”
Our association’s stance in this litigation as described above was taken without any prior discussion or vote by the association’s board of directors. More than three weeks earlier, on August 21st I had requested a meeting of the board to discuss the litigation, accompanying that request with a 15-page analysis. Our former community manager, Mylia Straub, acknowledged the request and was apparently working to organize the meeting prior to her resignation.
To date there has been no vote by the board on these matters, and no update was given to members in the open session meeting on September 25th notwithstanding the profound consequences of joining the town and Carefree Water against our fellow members, the Ryans. Our association’s management circulated a “Water Tank Update” two days ago, apparently intending to preempt this report, but it says nothing about our association’s alignment with the town which is plainly apparent in the Joint Report as well as in our association’s answer to the complaint that was subsequently filed by Carpenter Hazelwood. These documents are all publicly available.
In my personal opinion, our association’s board of directors has ceased to function in conformity with our association’s governing documents, and is failing to fulfill its responsibility to exercise ordinary care and prudence to protect our association’s most valuable asset, our common land. I believe that counsel to our association has failed to properly advise the board, has acted without proper authorization and should be replaced. It seems to me that the Joint Report filed by our association’s counsel in the Ryan litigation makes all of this vividly clear.
why association members should oppose and resist installation of the water storage tank on our open desert common land
Open desert common land is the most significant distinguishing characteristic of the Boulders Carefree - even in comparison with the Boulders Scottsdale, where nearly all of the more limited open desert land is golf course property. These natural areas are our historic legacy and our association’s most valuable asset.
Multiple alternative sites are available. In particular it makes no sense to industrialize an increasingly rare area of undisturbed natural desert, when a perfectly
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viable “brownfield” site is only a short distance away and other individually-owned parcels slated for development are available at no cost.
There are always going to be motivations for taking and developing open land for one purpose or another. It is especially important to resist a taking by the town, which has established policies of relying heavily upon sales tax revenue and encouraging commercial development along traffic corridors. It is highly conceivable that if the town succeeds in placing a water tank on our common land, there would be inclination and motivation to take the remainder of our common land along Tom Darlington Drive for commercial development, as sanctioned by the U.S. Supreme Court in its landmark decision Kelo v. City of New London.
The legal dedication that created our common land created an entitlement for every one of our association’s members. There are settled expectations that these open desert lands will be preserved, and it is typical for real estate agents to emphasize that when marketing our properties. While Sagebrush Lane residents would be most severely affected by the town’s plans, the value of all of our properties would be adversely impacted if our common lands are no longer secure.
The integrity and common good of our association is diminished if we fail to aid and protect fellow members threatened by capricious actions by outside forces. This is especially true of the current situation, where a few afflicted members are doing nothing more than attempting to preserve the common assets and entitlements of our association for the benefit of all members.
what you can do
For more than a year, many of our fellow association members have feared that close personal relationships between town officials and certain members of our association’s board of directors would lead to the regrettable situation described above. We association members must now find other ways of working together to protect our natural desert common land and to defend our interests, entitlements and property values.
Most importantly, if you share my wife’s and my desire to protect and defend the Boulders, simply reply to the e-mail to which this report was attached. The greater the number of association members who can be identified as opposing installation of the tank on our common land, the better our chances of stopping it.
Please also discuss this report with your friends and neighbors in the community, to ensure that they’ve seen it. Although friends have helpfully provided me with many of our association members’ e-mails, my mailing list is not comprehensive.
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I’ve never imagined that I might become any sort of “community activist”, but the circumstances described above leave no other alternative for preserving the character and value of the community that my family has enjoyed for the last thirty- eight years.
Don Schwarzkopf 4 October 2020
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Exhibit A

Exhibit B

Exhibit C

Don Schwarzkopf - Report 2 - 10/25/2020

Second Report to Members of the Boulders Homeowners Association regarding the Proposed Water Storage Tank
In the days since my first report was sent to you on October 4th, new evidence has become public through the discovery process in the Ryan litigation. Although this process is still ongoing, the disclosures thus far are so significant that they call for this second report.
the site selection process for the tank has finally been revealed
My first report described why an additional water storage tank would be needed if Carefree Water proceeds with the takeover of customers currently served by Cave Creek. The majority of those customers reside in a neighborhood on the far side of Black Mountain, distant from the existing infrastructure of Carefree Water. To meet normal requirements for peak flow and fire protection, Carefree Water will need to construct new storage capacity for this neighborhood, to replace the existing infrastructure in Cave Creek from which it will be cut off.
The replacement water supply for this neighborhood will need to be transported from Carefree Water’s main storage tank at the northeast corner of Pima Road and Stagecoach Pass, where all of Carefree’s incoming water supply is collected. As can be seen in Exhibit A of my first report, more than half of the transport distance to the new neighborhood is already covered by an existing 10” trunk waterline that runs west along Stagecoach Pass and then along the streets of our association to Tom Darlington Drive.
This 10” line is apparently deemed adequate to fill a new tank through round- the-clock flow, but to meet peak usage and fire protection requirements the outflow from the new tank must apparently be connected to the distant new neighborhood with a larger 12” trunk waterline. Exhibit A shows that the engineers engaged by the town, Coe and Van Loo (“CVL”), plan to install this new waterline down Tom Darlington Drive and then west along Carefree Highway. It is common practice to run trunk waterlines within rights-of-way along arterial roads, for obvious reasons.
A newly disclosed memorandum from CVL, Exhibit D (continuing the sequence of my first report), describes the tank site selection process with precision. The selection criteria listed are essentially the same as those presented in abbreviated form by Mr. Crossman, the general manager of Carefree Water, in the “town hall” meeting with our association on November 8, 2019.
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During his deposition on October 16, 2020, Mr. Crossman denied having specific knowledge about the design that Carefree Water would implement if the takeover occurs, including this site selection process. He referred the majority of questions asked of him to CVL. Exhibit D should therefore be considered the definitive statement of how the town came to prefer our natural desert common land for the tank site.
Cassandra Alejandro of CVL is the sole author of Exhibit D. Another document just disclosed, Exhibit E, demonstrates her long-term involvement in this project and her focus from its earliest days on installing the tank in our association’s common land.
This exhibit shows a proposed partitioning of our common land to accommodate the tank, and carries the legend “CassandraA January 23, 2019”.
Exhibit F is the sole reference to Ms. Alejandro on CVL’s website, dating from 2018 and accessible at: https://cvlci.com/cassandra-alejandro-becomes-registered- professional-engineer-water-wastewater-department/. At the time that she selected our association’s common land for the tank site Ms. Alejandro had been a professional engineer for less than a year, having only received a bachelor’s degree from Arizona State University a few years earlier.
CVL’s tank site selection process is fatally flawed
In my first report to you, I characterized Mr. Crossman’s November 2019 presentation as ‘deceptive’. As it turns out, he was just offering an abbreviated description of Ms. Alejandro’s work. What appeared deceptive in Mr. Crossman’s abbreviated description is more accurately characterized as fundamental flaws in Ms. Alejandro’s approach to the project.
The principal flaw is that Ms. Alejandro limits her search to sites at precisely 2325 feet in elevation. As she explicitly states in Exhibit D, she does this for the sole reason of avoiding an additional booster pump station or pressure reducing valve. This rule is foremost and absolute - any sites not at that precise elevation were not considered.
This rule is extreme and unreasonable. Mr. Crossman admitted in his deposition that Carefree Water already has “five to ten” booster pump stations, and that the Cave Creek service area he hopes to take over has “four or five” more. Two of the three existing water storage sites used by Carefree Water have booster pump stations. No doubt there are also various pressure reducing valves in the Carefree Water system. Ms. Alejandro, however, will settle for nothing less than ‘pie in the sky’, her ideal gravity-feed scenario.
This absurdly strict elevation rule led Ms. Alejandro’s search westward across the lower slopes of Black Mountain, rather than pragmatically along the existing and
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proposed trunk waterlines that will be used to carry supply from Carefree Water’s main storage tank to the newly served neighborhood. It is hardly surprising that she was then unable to find any other sites conforming to her secondary criteria of topographic and geologic suitability, non-residential access and proximity to the existing trunk waterline.
As noted in my first report, there was no consideration by Ms. Alejandro of why certain parcels of land happened to be vacant. She saw no distinction between our open desert common land, deliberately preserved in its natural state for generations since the founding of the Boulders for the benefit of every resident, and other parcels in private ownership and available for development.
In his deposition, Mr. Crossman confirmed that the only alternative sites considered by the town are those highlighted by Ms. Alejandro at precisely 2325 feet in elevation in the maps accompanying her memorandum (Exhibit D).
Other documents just disclosed imply that Mr. Crossman deliberately restricted CVL’s analysis to solely that “pie in the sky” gravity-feed scenario. In correspondence with the owner of an alternative site highlighted in my first report, just across Tom Darlington Drive from The Boulders, Mr. Crossman informed him that his site “was ruled out because the elevation was not adequate” and “we would need a booster pump station to get the correct water pressures that we need”.
There is no legitimacy to the site selection process performed by Ms. Alejandro in Exhibit D. Our preserved desert landscape would be destroyed merely to avoid adding one more booster pump to a system that already relies on a dozen others. It is now clear why town officials refused until now to reveal why they seek to take our land.
With a single additional booster pump, the tank could probably be located within the neighborhood that desires to be connected to Carefree Water. There is ample land available there for that purpose, otherwise intended for development.
town officials have failed to earn our trust
From the beginning, town officials have cloaked this project in sweeping assertions that it is for the greater public good of ALL Carefree residents. In the October 6, 2020 town council meeting the mayor even claimed to be “on the side of the angels”.
Town officials claim to be in exclusive possession of the facts, but they make no effort to fully inform us. Truth is only now gradually emerging through litigation.
We have never been told why those Carefree residents threatened by poor water quality have not sought regulatory intervention or relief through litigation. But
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we can readily imagine how these homeowners (including nearly half the town council) would obtain a nice boost in their property values by connecting to Carefree Water.
Town officials have repeatedly asserted that our association members will benefit from the tank, but only in the vaguest terms and without factual support. The tank site is ‘downstream’ from our community, and no water would be supplied within the Boulders or to any location other than the distant neighborhood the tank is intended to serve.
We have heard much about the importance of fire protection, but no expert in this field has told us that our current system is inadequate, or that a tank sited elsewhere, for example just across Tom Darlington Drive, would be inferior.
It has been asserted that the Ryans would benefit from a reduction in noise from Tom Darlington Drive if the tank is built next to and above their home. Yet no expert in acoustics has been consulted, and it appears that most of the street noise the Ryans experience radiates upward from farther down the road, from a different direction. The tank installation could very well enclose and focus this noise, and make it worse.
We have been told that our association’s Architectural Review Committee would ensure that the tank installation would have an acceptable design and appearance, yet the mayor personally dominates this committee and association members cannot expect to have any input into its decisions. Moreover, the town is now asserting in litigation that it has entirely free use of the site through a utility easement, meaning that our association has no legal entitlement to control the tank’s appearance.
We have been shown renderings purporting to demonstrate virtually no change in the appearance of our association’s natural desert common land after installation of the tank, but they are obviously the product of artistic license rather than technical precision. They are mere propaganda, and the “after installation” image is contradicted by Mr. Crossman’s testimony in deposition about how his company will re-vegetate the site.
Town officials constantly tell us and the court that the tank will be buried underground, but this is only because they would redefine the grade level upwards by five to ten feet by piling soil around and on top of the tank, and because they ignore all of the above-ground ancillary equipment required for the facility.
We have been assured that the site in our association’s preserved common land has been carefully selected, yet we now see that the selection process was a travesty, the fundamentally flawed work of an inexperienced young engineer misguided by an unreasonably restrictive mandate.
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collusion between town officials and members of our association’s board
The newly disclosed documents show extensive “hand in glove” coordination between town officials, certain members of our association’s board and CCMC employees, expressly directed towards suppressing and countering opposition to the tank within the Boulders community. This secret alliance is documented back to at least January 2019.
Instead of making any effort to understand how the town came to prefer our association’s common land, and instead of attempting to urge consideration of some alternative site, the colluding members of our association’s board helped to refine the town’s misleading of our members, in particular through the repeated false claim that the town would be making a ‘proposal’ for consideration by our association’s board.
My personal communications with Mr. Crossman attempting to open a dialogue about the tank location were instantly forwarded to our board president. Memos that I prepared solely for our board were instantly forwarded to town officials.
Obviously this behavior has totally undermined the independence of our elected board and the confidentiality of our association’s affairs. There are hints throughout the documents that what has been disclosed thus far is merely the tip of the iceberg.
This hijacking of our association’s governance required the complicity of our association’s management. CCMC terminated their management agreement with our association on the day following my first report to you.
our “open desert space”
My first report explained how the town and water company have taken the most “anti-Boulders” stance possible, asking the court to invalidate the “open desert space” dedication that is the foundation of what originally made The Boulders unique, and what preserves the distinctive character of our community as the metropolitan area has grown around us.
This dedication is the sole legal basis for the preservation of our common land as a natural Sonoran desert landscape. If invalidated, any board of directors of our association could utilize any portion of our common land for virtually any purpose, regardless of association members’ objections.
In the Ryan litigation, our association was asked to “Admit that the “open desert space” easement is for the benefit of the residents of the Boulders.” In Exhibit G, our association has formally denied that without qualification.
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This is possibly the most consequential legal decision ever made by our association. It was done without any authorization, or even any discussion, by your association’s board of directors.
moving forward
In closing my first report, I asked association members opposed to the installation of the tank on our common land to inform me by e-mail. While I received many such responses (and none to the contrary), I realize now that this might have been interpreted as taking a public stance, which could be socially awkward in a club- centered community such as ours.
I have pledged to those who responded not to disclose their identities unless and until they decide to do so themselves. I hope that the revelations in this second report will encourage others of you to respond to me, and I make that same pledge to you.
Although these reports are directed towards fellow members of the association that owns the targeted site, south Boulders residents have asked to be included and I am happy to do so. Please continue to ask friends and neighbors whether they have received these reports, as my distribution list is far from complete.
The good faith governance of our association has regrettably been profoundly undermined. While I would encourage every member who is troubled by this to voice their concerns through the appropriate political channels, including our association’s periodic open board meetings, we are faced with the more urgent concern that pleadings filed by our association (including Exhibits C and G) could adversely affect the outcome of the Ryan litigation. The trial date has recently been slightly deferred to January 5 – 7, 2021.
Those who have responded that they concur with my reports will receive updates on possible action to counter the continuing threat to our association’s most valuable asset.
Don Schwarzkopf 25 October 2020
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Exhibit  D

Exhibit E

Exhibit F

Exhibit G

Don Schwarzkopf - Report 3 - 12/8/2020

Third Report to Members of the Boulders Homeowners Association regarding the Proposed Water Storage Tank
As with my first and second reports, I’d like to make available to members additional facts that have become public through the ongoing litigation.
partial recap of my earlier reports
The town of Carefree and Carefree Water Company intend to install a large water storage tank on our association’s protected open desert common land. The sole reason for adding this additional storage capacity is to accommodate the anticipated expansion of Carefree Water’s service area into a distant part of Carefree historically served by Cave Creek (designated as “Neighborhood A”).
To serve Neighborhood A from Carefree Water’s main water collection and storage facility, water must be piped along a route approximately five miles long that passes through The Boulders.
The town and Carefree Water prefer to locate the tank on our association’s common land because they allege that it is the optimal elevation to achieve gravity-fed water pressure into Neighborhood A. There are other viable locations for the tank along the five-mile route, but these would likely require use of a booster pump or pressure- reducing valve. Carefree Water has therefore not considered these other sites. Approximately a dozen booster pumps are already in use within the Carefree Water system.
None of the water from the proposed tank would serve The Boulders, it is exclusively for Neighborhood A.
the proposed tank
More detailed information about the proposed tank was revealed during the November 18th deposition of Tracy Grunden, director of water/wastewater for Coe and Van Loo Consultants. This firm performed the engineering work for Carefree Water relating to the transition of service from Cave Creek.
Mr. Grunden stated that because of subsurface conditions and the town’s desire for gravity flow, the tank can only be partially buried, with approximately 7 to 8 feet projecting above the current grade. He also confirmed that the tank would be approximately 65 feet in diameter.
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To avoid an exposed tank, Mr. Grunden described the town’s intention to
install fill around and over the tank. Obviously there are structural limitations on the depth of soil that can be placed on top of tank. Also, the fill would need to extend some distance from the tank to achieve stable slopes, which will significantly expand the project’s footprint. This is comparable in volume to burying one of our larger Boulders homes.
The result would be a substantial flat-topped “mini mesa” approximately 10 feet higher than the existing grade, with vegetation likely to significantly differ from what now exists on the deep and undisturbed natural soil. Existing palo verde and saguaros, for example, would not be able to survive in the shallow soil on top of the tank.
The base of the new “mesa” would be less than 50 feet from Tom Darlington Drive, approximately 100 feet ahead of the Carefree town sign; approximately 70 feet from the fairway of the 3rd hole of the south course; and approximately 100 feet from the nearest homes of association members. A good idea of its proposed location is provided by an illustration produced nearly two years ago by Mr. Grunden’s office, Exhibit H (continuing the sequence from my earlier reports), although this shows only the tank itself and not the larger extent of the “mesa”.
This would be an industrial installation. Mr. Grunden confirmed that there would be above-ground structures supporting the tank’s operation. The largest would be a shed of approximately 15 by 15 feet, 8 feet high, to shelter electrical and chlorination equipment. There would also be a freestanding backup generator, and a blower unit for ventilating the tank, all above ground.
Any chlorination process presents some degree of danger. Mr. Grunden explained how the equipment is never installed underground because ventilation is essential. Chlorine fumes are deadly and heavier than air. The homes of our association members and the 3rd hole are downhill from the tank site.
Mr. Crossman explained during his deposition in October that the purpose of the blower is to inject air into the tank and expel trihalomethanes into the surrounding atmosphere. Trihalomethanes are normal byproducts of chemical reactions between the chlorine used for disinfection and natural organic matter in water. Some have been found to be genotoxic and carcinogenic.
The risks of such emissions are unclear. Obviously homes have been built near water storage tanks in Carefree as elsewhere, and people choose to live there. It is rare, however, for a new tank to be installed next to homes that have existed for decades.
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putting all that we’ve learned into proper perspective
The facts described and explained in my three reports to you would never have emerged if not for the costly litigation initiated by our fellow association members, the Ryans.
Anyone taking the time and making the effort to review the documents and testimony produced in this litigation cannot escape the realization that residents of The Boulders have been the targets of a carefully constructed deception.
The decision to place the tank in our protected natural desert common land was made by the town back in 2018. The leadership of our association’s board was enlisted into the effort at the beginning of 2019; no questions were asked, no resistance was attempted.
Engineers for the water company created after-the-fact justification for the choice of our association’s land. Town and water company officials openly admit that they have not seriously considered or investigated other sites.
Our own board members and community manager presented misleading renderings to us on the town’s behalf. Attorneys engaged by our board have contrived a continuing stream of reasons justifying inaction and purporting neutrality, while filing papers with the court unambiguously supporting the town against the Ryans.
Residents of The Boulders are on a direct path to becoming the victims of local politics. Our community’s most valuable asset, our natural desert common land, will be sacrificed without the slightest benefit to us, and the value of each of our homes will be diminished. All of the benefits will flow to residents of Neighborhood A, who include nearly half the Carefree town council.
The most preposterous aspect of all of this is that the wishes of Neighborhood A could readily be fulfilled by a tank in some other location. It all comes down to Carefree Water’s unwillingness to employ one more booster pump.
The town and Neighborhood A are counting on the ignorance and inaction of Boulders residents, including the willingness to leave matters in the hands of elected officials of both the town and our association.
Don Schwarzkopf 8 December 2020

Exhibit H

Don Schwarzkopf - Report 4 - 12/28/2020

Fourth Report to Members of the Boulders Homeowners Association regarding the Proposed Water Storage Tank
Fellow association members have persuaded me to circulate this fourth report. My prior reports described the past and present. Here I will venture some thoughts about the future, based in part upon discussions with several attorneys having no current involvement in these matters.
Nothing said herein should be construed as providing legal advice, nor as waiving any applicable attorney/client privilege. My views are personal, and do not rely upon any legal advice provided to our association’s board of directors.
the latest update
On December 23rd an update circulated by CCMC stated: “we are informed by the attorneys for the Town and the Water Company that the Town is now seriously considering a condemnation action regarding the unit site”. I view this as very good news for our association.
First, it is tacit acknowledgement that the town is likely to face defeat in the litigation with the Ryans. My third report described how the engineer engaged by the town exposed the falsity of numerous prior assertions that the tank would be underground. A subsequent deposition of the town’s own planning director made clear that an installation not fully underground would be problematic.
Second, in the worst case, our common land would not be taken away without payment. The town’s position in the current litigation is that it is entitled to construct the tank on our property without any compensation pursuant to an existing utilities easement. Condemnation requires compensation.
Third, a change in ownership resulting from condemnation would not obliterate all prior land use restrictions. In the current litigation the town has asserted that the ‘open desert’ dedication that has preserved our common land in a natural state since the founding of The Boulders does not exist. A county setback ordinance might also continue to apply.
Fourth, condemnation is the town’s last resort. Association members can now focus their attention and resources on a conclusive outcome, thanks to the Ryans’ clearing away of the legal and factual underbrush.
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Last but not least, the decisions soon required of our association’s board should bring an end to the regrettable divisiveness within our community that has resulted from some too-close affiliations with town officials.
condemnation
Condemnation is as hostile as it sounds - a government forcibly taking private property, exploiting its unequal powers. But it isn’t necessarily a death sentence. Although the common wisdom is that government always gets its way, condemnation can be defeated outright in certain exceptional cases. This is an exceptional case.
Courts generally will not review the necessity of a condemnation, as it is ordinarily deemed to be a legislative process (in this case, by the Carefree town council). The courts will overrule a condemnation, however, if it is found to be arbitrary and capricious, or fraudulent.
This is a difficult standard to meet, but unusual factors in this case significantly improve the odds, more so than any other case familiar to those legal experts with whom I’ve conferred. In no particular order and without being comprehensive, these factors include:

• bias and self-interest within the legislative body;
  
• the non-essential nature of the project, merely creating a
  redundant water delivery system;
  
• lack of documented, demonstrable need;
  
• failure to consider other more efficient means to address the
  alleged problems;
  
• prioritization of factional political objectives over engineering
  logic;
  
• absence of substantive cost/benefit analysis;
  
• secrecy and efforts to mislead association members;
  
• inadequate evaluation of alternative tank sites;
  
• bogus methodology justifying the preference for our common
  

land;

• unimportance of the tank location to the overall project;
  
• damage to the interests of approximately 900 Boulders
  homeowners.
  Arizona statute requires a condemnation site to be “
  (A.R.S. § 12-1115(A)).
  

”
located in the manner which
will be most compatible with the greatest public good and the least private injury
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standing
Association members - individually, in a group or as a court-certified class - have legal standing to oppose the condemnation, or any other unauthorized use or conveyance of the association’s common land. OABS (Boulders south) homeowners probably also have legal standing in certain respects.
By their own admission, town officials have given no consideration to either our land’s common ownership structure with its multitudinous beneficiaries, or the land’s preserved status when determining their preferred site for the tank. Other viable sites for the tank all have a single owner and are slated for eventual development.
After the expenditure of millions of taxpayer dollars on engineers, consultants and attorneys devising this project and battling with Cave Creek, I wonder whether anyone has considered:

• the high probability that some or many of the hundreds of people with legal standing will contest the loss of our precious common land;
  
• the intense focus that a contested condemnation would place upon the competence of the town’s management and decision- making; and
  
• that such a newsworthy and legally interesting controversy would entice both highly qualified plaintiffs’ attorneys and investigative press.
  severance damages
  The stakes in a condemnation might be significantly higher than town officials have imagined. In State of Arizona, et al. v. Foothills Reserve Master Owners Association Inc et al, CV2017-010359, the Superior Court ruled last year that members of a homeowners association are entitled to severance compensation for their easement rights in common land taken by condemnation, over and above whatever the association itself would receive for its ownership of the land.
  This seems especially warranted in the case of The Boulders, where the essential character of the community since its founding has been the setting of its golf courses and homes within open desert spaces. The winning attorney in the Foothills Reserve case generally works for property owners on a contingent-fee basis, so there is little reason to doubt that if condemnation proceeds, one or more association members will pursue severance damages even if the association’s board does not.
  

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looking ahead
The CCMC update states that all parties to the current litigation will participate in a court-mediated settlement conference on January 14th.
Assuming that the town remains determined to locate the tank in our common land, it is difficult to imagine why the town would be motivated to settle with the Ryans, when hundreds of other association members could readily take up where the Ryans left off, and the legal arguments made by the Ryans seem destined to prevail.
The town could attempt to negotiate a sale or lease arrangement with our association’s board in lieu of condemnation. In fact, under Arizona law it is a statutory prerequisite to condemnation for the condemning authority to attempt that. This is generally not a simple or rapid procedure, as it requires appraisals, a survey and usually a clear explanation of exactly what would be done with the land.
There are compelling reasons why the association and its board should in any event categorically oppose the taking, sale or lease of our common land for the proposed tank:

• the town has really not done its homework - it is clear from discovery in the current litigation that they have not seriously considered other alternatives;
  
• the project brings no benefits of any kind to The Boulders - not least, all of our water connections are upstream from the site;
  
• nothing has been revealed about what this project will cost association members;
  
• town officials have been unforthcoming and untruthful, although this could reflect unpreparedness more than nefarious intent;
  
• the partially above-ground tank and all of its ancillary equipment would disfigure our community’s primary road frontage - the
  ‘main street’ of Carefree - as well as views from the golf course
  and private homes;
  
• the loss of common land that has been preserved for nearly fifty
  years would be a watershed event with unpredictable consequences - could we eventually lose all of our commercially valuable road frontage along Tom Darlington Drive ?;
  
• it would be unrealistic to expect the “Boulders premium” in our home values, estimated at 20% by some local real estate agents, to survive such a major alteration to what makes our community so attractive;
  
• condemnation can be defeated; and
  
• even if condemnation ultimately succeeds, there would be means
  to influence or control the installation (not to mention that it
  

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would be politically suicidal for the town to construct a total monstrosity).
There are no credible reasons for anyone to ask us to make a public-spirited sacrifice of our community’s most valuable asset. The purported needs of Neighborhood A (which are thus far merely anecdotal) and a marginal enhancement to fire safety could readily be satisfied with a tank in another location.
The only available recompense would be a monetary payment. Aside from the fact that this is probably of little interest to most association members, it is difficult to imagine that the board could negotiate, or even determine, suitable severance compensation from the town. The questions are complex: for example, should severance compensation be limited only to those who have a direct view of the installation, or does the site’s location on prominent road frontage diminish every home in The Boulders ? Even the smallest conceivable amount of such compensation exceeds the limits of our association’s D&O insurance coverage, making this a risky decision for anyone other than a judge.
As a board member concerned about possible personal liability, I would strongly favor putting any such decision to a vote by members. Notwithstanding the powers conferred to the board by our governing documents, these are exceptional circumstances, the most significant issue our community has faced in decades. Nearly half our association members expressly requested a vote in a petition delivered to the board ten months ago. Members could amend the association’s CC&RS to require this, but I believe it would be far better for our community if the board demonstrated the wisdom and discretion to allow members to make any ultimate decision.
closing thoughts
Fifty years ago, Laurence Rockefeller described our community as “The best land left of the prettiest desert in the world” (RockResorts was a partner in the early development of The Boulders).
My first two reports on this matter were sent from our summer home in Vermont. Returning to The Boulders this fall after a cross-country drive, I was again struck by the distinctiveness of our community’s landscape. The integration of unobtrusive homes within the extraordinary boulder formations is truly unique.
Admittedly I’ve had the same reaction for the last thirty-seven years when returning to our family’s home from errands in Scottsdale and Phoenix. These drives underscore how small our eponymous boulder field really is within the vastness of the metropolitan area.
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The association’s common lands are our legacy. Even after fifty years, our community’s golf courses remain some of the most picturesque and highly rated in the country. How could anyone be so insensate as to propose putting a huge water tank in the middle of this extraordinary landscape?
It is surprising that local conservation and Sonoran desert preservation groups have not already spoken out.
Rather than our boulder field, the town would demonstrate wisdom by locating the tank within the featureless flatness of Neighborhood A, where it can sit behind the future shopping center it will support. One more booster pump would surely be less expensive than condemnation and litigation.
The Boulders is worth fighting for, to the very end. If it comes to the point that you receive a request from one of our fellow association members to assist in funding attorneys to challenge the town, I hope that you will participate, as my wife and I will.
Don Schwarzkopf 28 December 2020

Don Schwarzkopf - Report 5 - 1/10/2021

Fifth Report to Members of the Boulders Homeowners Association regarding the Proposed Water Storage Tank
Mayor Peterson of Carefree somehow prevailed upon the management of our association to circulate to our entire membership - highlighted as “Important Information” - his confrontational and accusatory memo entitled “Frequently Encountered Misconceptions and Questions from Boulders Residents”.
Given the nature of allegations made in both that memo and the Mayor’s remarks at the January 5th meeting of the town council (following the reading of more than sixty letters from our association members), clarification is warranted. I am therefore circulating this report as widely as my list of e-mails allows, including to the board of The Carefree Unified Community Facilities District (“UCFD”) who the Mayor has said will meet on February 2nd to consider whether to condemn our association’s preserved desert common land.
This report will show that:

• the stated justifications for the “water transition” project are
  no longer valid;
  
• the process by which our common land was selected for the
  tank site was arbitrary;
  
• the visual impact of the tank would be far more significant
  than the town has portrayed;
  
• the environmental impact of the installation would be far
  worse than anticipated; and
  
• members of our association have not been treated with
  fairness and honesty.
  the alleged endangerment of Carefree residents
  In his memo and remarks, the Mayor justifies the “water transition” project as necessary for the health, safety and welfare of Carefree residents. He names two concerns: i) water quality; and ii) inoperable fire hydrants. He speculates: “these untenable situations [will] likely continue”.
  More specifically, the Mayor cites a statement from Cave Creek warning residents of the presence of excessive trihalomethanes, and he exhibits photos of spent water filters, a bottle of turbid water and semi-buried fire hydrants without any indication as to date, location, etc.
  

There is good evidence that Cave Creek water has experienced periodic mismanagement, but there is also good evidence that the problems cited by the Mayor as justification for the water transition have already been corrected.
Cave Creek’s notice about trihalomethanes was a one-time event in September 2019. There were no prior warnings of this type, and there have been none since. Exhibit I (continuing the sequence from my prior reports) is the full text of that notice. It explains that at just one testing site, trihalomethanes reached a level of 0.083 mg/L versus the regulatory limit of 0.080 mg/L. The second page, omitted by the Mayor, reveals that through mitigation measures the level had already been reduced to 0.048 mg/L.
The Arizona Department of Environmental Quality (“ADEQ”) requires public water utilities to distribute annual water quality reports. It is informative to compare the latest available reports for Cave Creek (Exhibit J) and Carefree (Exhibit K). Trihalomethanes, for example, ranged from 47.3 to 72.5 ppb with an average of 56 ppb in Cave Creek, versus a range of 24 to 44 ppb and an average of 34 ppb in Carefree. The difference is insignificant compared to the regulatory limit of 80 ppb. In general the water quality in the two towns is indistinguishable, which makes sense because the water is substantially from the same source, the Central Arizona Project (“CAP”).
There is no evidence that those Carefree residents dissatisfied with Cave Creek’s water service have ever addressed any complaints to the ADEQ, nor have they filed any complaints in a court of law. There is no evidence that officials of the town of Carefree ever attempted to intercede with Cave Creek on behalf of allegedly affected residents. To the contrary, Carefree continued to purchase water in bulk from Cave Creek for a year after the notice about trihalomethanes.
The “Utility Department 2020 Year in Review” from Cave Creek (Exhibit L) demonstrates that they have taken major steps to improve water quality, in particular installing costly and sophisticated new filtration equipment to address their previous problems with total organic carbon (page 4). Cave Creek has also decisively addressed their previous failure to maintain fire hydrants (page 12).
The only justifications that the Mayor has given us for undertaking this costly and divisive project no longer exist.
the flawed selection of our common land for the tank site
The Mayor’s memo distributed last Wednesday states: “CVL identified 32 potential sites in Carefree which were evaluated against selection criteria”. This large number contradicts what he said just a few days earlier in his remarks during the town
council meeting: “There is an engineering study which was commissioned. It looked at seven sites”.
The lower number is consistent with: i) prior statements made by town officials, including at the November 8, 2019 town hall meeting (summarized in my first report); ii) the sworn deposition testimony of CVL’s Director of Water/Wastewater, Tracy Grunden, given on November 18, 2020 (summarized in my third report); and iii) an August 10, 2020 memorandum by Cassandra Alejandro of CVL (Exhibit D to my second report).
Representatives of CVL and Carefree Water have consistently stated that site elevation was the primary selection criterion, and the Mayor’s memo affirms this. As discussed in my second report, what makes this so arbitrary is that Carefree Water insisted upon using a single elevation, 2325 feet, as a yes-or-no criterion rather than allowing a reasonable range. The preserved status of our common land and its unavailability relative to other, developable parcels were not considered relevant.
Because of the uncompromising elevation criterion, engineers at CVL were allowed no opportunity to evaluate the pros and cons of alternative sites. The Mayor and Carefree Water admit that other tank sites are possible - some would simply require a booster pump station. The general manager of Carefree Water admitted in his sworn deposition that his company already operates “five to ten” booster pump stations. The Cave Creek water system utilizes fifteen (15) booster pump stations. They are not uncommon or unusual.
The Mayor’s assertion that a typical booster pump station costs $700,000 to $800,000 is completely unsupported and according to other engineers, vastly inflated. Even if true, this amount is likely to represent only a small fraction of what members of our association and OABS (Boulders south) would lose in property values if the tank is installed.
visual impact
The Mayor is again at odds with Mr. Grunden of CVL as to how much the tank would raise the existing grade level. The Mayor’s memo states 6 feet including 2 – 3 feet of soil on top of the tank, while my third report quoted Mr. Grunden’s testimony that the grade would be raised 7 to 8 feet before adding soil.
The current grade at the site is rolling and picturesque. This would be replaced with a flat, level concrete deck on the top of the tank - characterized in my third report as a “mini mesa”.
The before-and-after “renderings” heavily promoted by the Mayor are inherently misleading. They are a single image, taken from a vantage point only vaguely described
as being on the Ryans’ property. Obviously they do not present a view from the golf course or from Tom Darlington Drive, or even from different angles and elevations on the Ryans’ property.
Nowadays we are accustomed to seeing sophisticated 3-dimensional site renderings from architects and engineers, which are based upon highly detailed digital mapping of the terrain merged with 3D digital models of the proposed construction. These offer precise views, accurate appearances and perspectives from any viewpoint. This is NOT what the town has offered us. The town’s renderings are merely a photographic image from a single viewpoint, which has been manipulated (“photoshopped”) into an “after” image by someone who wants us to believe that the tank will be invisible.
The most egregious omissions from this artistry are the above-ground industrial structures required for chlorination equipment, a backup generator, electrical panels and the blower for venting trihalomethanes into our community. There is no evidence that the location, height and bulk of the tank are accurately represented, and as discussed below, the landscaping is a fantasy.
Standard practice in California and elsewhere is to erect “story poles” to enable the public to understand the location and bulk of proposed structures. This would be especially appropriate in these circumstances, where the tank would be inserted into our picturesque and unique boulder field, close to existing homes.
environmental impact
This section summarizes the remarks of a prominent landscape professional who visited the proposed tank site last week. His portfolio includes many large municipal, commercial and private residential projects.
The Mayor’s memo states: “2 – 3 feet of soil . . . will be placed over the (tank)”. According to the landscape professional, this demonstrates the town’s intention to adopt a low-budget approach, which will inevitably result in an unnatural wasteland. This professional also found the town’s renderings to be overly simplistic and misleading.
The physiology of the plants that grow in this harsh climate dictates their prospects for survival. In the experience of this professional, covered structures require 4 feet or more of soil to support even moderately sized vegetation. Even then, as plants grow to a more mature size they topple over in monsoon winds as their roots cannot gain adequate purchase in the limited soil depth.
The concrete platform that tops the tank is insulated from the relatively cool water below by the air at the top of the tank. Consequently the heat in the shallow soil above is amplified. Very few plants can survive such conditions, virtually none without reliable irrigation. The ultimate appearance will be similar to what we see now next to our west gate after the new septic tank was installed, only over a vastly larger area.
The concrete platform will be about 3500 square feet, but the area needed to taper fill around the partially above-ground tank will be much larger. To provide drainage without erosion a 2% slope is the accepted guideline, but that would require a radius of approximately 500 feet around the tank, extending beyond our members’ homes and well into the golf course. The tank’s intended location is just 129 feet to the nearest member’s property, and only 145 feet to their home. The steeper slopes necessary on this very constrained site would require careful planning and execution to avoid serious erosion problems.
A particular concern is the group of ancient saguaros behind the fairway bunker on the 3rd hole south. They are within the zone that would be affected by construction and fill. The standard practice is to lift and box them for replanting at the end of construction, although they might be left in place and worked around. Based upon long experience this professional expects their chances of survival beyond a few years to be less than 10% in either case.
To restore the landscape in a competent manner, with plantings that would survive, well-controlled drainage and irrigation, this professional estimates it would cost as much as $750,000 - coincidentally equal to the Mayor’s stated cost of a booster pump station.
Another likely impact would be on the movement of larger wildlife that frequently pass through the site, going between our common land and the arroyo and undeveloped parcels across Tom Darlington Drive.
fairness
The Mayor invokes the pejorative phrase “not in my backyard”, he reminds us about the removal of the former wastewater treatment plant and he emphasizes that there are 42 other homeowners associations in Carefree, presumably hoping to shame us into silence.
This all simply affirms that the Mayor has not gained the trust of our community. We are reasonable people. We have well founded doubts about the justifications for this project. We have well founded doubts about the competence and integrity of the process by which our preserved desert common land was chosen as the site for the
tank. We have well founded doubts about the budget, ability and willingness of Carefree Water to properly restore the site.
The mayor remarked: “The Boulders is currently served by a water reservoir in another community to the north of the Boulders.” The tank located on Up and Down Place was built on town-owned land before any homes were located nearby, as shown in an aerial photograph from 1976 (Exhibit M). The homebuilders that followed undoubtedly paid a commensurately lower price to obtain their land. This is profoundly different from the current situation in which the town seeks to involuntarily impose a tank next to long-existing homes on property it does not own.
One of our long-term association members, a realtor active during the development of the Scottsdale portion of The Boulders observes: “The strongest selling features were the natural beauty of the community and the sensitivity of the developers to create an environment where the homes and natural landscaping blended together. The borders of The Boulders are without walls, unlike other gated communities in the area. We didn’t need walls because the natural desert owned by The Boulders flowed into the surroundings of our homes and community. . . . We are about the open space and the natural desert landscape, and the common areas are part of our community.”
She quotes our community’s famed developer Rusty Lyons: “we shared a single vision: to create an exhilarating desert place, a landscape where man-made architecture would subordinate to the natural environment, a setting where people could interact in an easy harmony with nature. To that vision, we added a commitment to realize our dream. We pledge never to compromise the integrity of the desert or the development. The result is The Boulders.”
The desert common land that borders our community is essential to its character, unlike the 42 other homeowners associations in Carefree. Its preservation is the result of a vision extending back nearly a half century. It is our historic legacy. Industrializing our border of common land with a municipal water facility will devalue every home in our community.
deliberate secrecy
The Mayor has repeatedly declared: “once something goes into litigation, the town policy which we follow is that shuts off all communication. So you can thank those who filed suit against us . . . for ending all communication on this.“
Dr. and Mrs. Ryan filed their suit against the town and Carefree Water on July 24, 2020. Discovery in that suit revealed e-mail messages sent more than seven months earlier, on December 1, 2019 (Exhibit N). Using his personal e-mail account, the Mayor admonished the general manager of Carefree Water: “Let’s not meet with any
individuals . . . I know that being in touch with and sharing information with Dr. Ryan seems like a reasonable and courteous thing to do, but experience strongly suggests that it will backfire on the Carefree Water Company . . . The only entity we should be dealing with, and that is only when we are ready to release some additional information on this subject or want to make a specific application, should be either the Boulders Homeowners Association or the Boulders Architectural Review Committee. Our contact at either of these would be Mary Roberts or Sheila Borneman.” Shortly thereafter the president of our association replied: “I agree with you.”
Eleven months earlier on January 17, 2019, the Mayor had written to our association’s president and another favored board member: “In the past I have discussed with each of you the likely possibility that the Carefree Water Company would be coming to the Boulders Homeowners Association (BHOA) at some time in the future regarding locating a fresh water storage tank in the property owned by the BHOA along Tom Darlington. . . .At this time . . . we would like to initiate discussions regarding moving forward”(Exhibit O). Our common land has thus been targeted as far back as 2018.
The town’s intentions were still a closely kept secret when the Mayor and our board president signed an Agreement on June 26, 2019 (Exhibit P). The Agreement rests upon the false premise that there is some benefit to our association (which was debunked in my first report - our association will not benefit in any way):
WHEREAS, the Town is in the process of determining the most appropriate site for a new fresh water storage tank that will serve all the occupants of the Town, including the residents of the Association;
WHEREAS, the Association finds that it is in the best interest of the Association to facilitate the Town’s determination, given the impact of a new fresh water storage tank on the Members and community;
The agreement granted the town temporary right of entry to perform surveying and geotechnical drilling, and it contains an indemnification clause that has been interpreted such that the town is now paying for our association’s attorney in this matter. Although our association’s attorney drafted the agreement, she and the board president failed to obtain board authorization; the board was simply informed afterward. Members were never informed.
Association members only became aware that something was afoot when crews were seen during geotechnical drilling two months later. Rising member concerns then compelled our association’s president to invite town representatives to the board’s open session meeting in November 2019.
Blaming the Ryans for the town’s lack of communications is unjust. This project has deliberately been shrouded in secrecy from its inception.
In almost any litigation, it is foolhardy not to attempt conciliation and seek settlement out of court.
It has become the Mayor’s standard practice to declare that everyone disagreeing with him is misinformed, yet he has worked with determination to obscure and mislead. If not for discovery in the Ryans’ litigation, we would lack much of the evidence needed to disprove the Mayor’s allegations.
legal aspects
The Mayor blames others for the town’s resorting to condemnation: “the current and threatened future legal actions by these few individuals eliminated any possible cooperation. We find it to be very regrettable that condemnation is the only option left open to us”.
Let’s be clear. The town made a conscious decision to attempt to take a piece of land in which hundreds of people have an entitlement. Asserting a utilities easement, the town first attempted to gain the land for free. The true motives behind the water transition are obscure and questionable. The tank installation would disfigure land that generations of association members have considered safe from development, would violate land use regulations and would set a terrible precedent. Truth has been distorted and secrecy has been deliberate. Yet the Mayor imagined that he could achieve a “cooperative” deal with certain association board members who have declined to ask any inconvenient questions. This was not realistic.
The Mayor assures us: “The subject of condemnation was never brought forward by Carefree or threatened.” The Mayor witnessed himself that this statement is untrue.
At a meeting of our association’s board on October 11, 2019, board members recalled a March 11, 2019 meeting at the proposed tank site attended by the Mayor, Greg Crossman and several board members:
The association’s president: “We were at the site visit, and they said to me, I heard it, it’s eminent domain.
Another board member: “They were quite clear about that.”
The association’s president: “We can take this thing, and I said ‘we’re not selling it’, and they said, Greg said ‘we can take it at any time under eminent domain’.”
Separately, the Mayor’s notion that a court of law would recognize some type of value from decommissioning the wastewater treatment plant as an offset to severance damages payable to individual association members in the event of condemnation is legally untenable. Given the Foothills Reserve decision in 2019 and the availability of legal representation on contingency, there can be little doubt that severance damages would be vigorously pursued.
the Mayor and the town have not earned our trust
It is essential to democracy that we should trust and rely upon our elected officials to competently perform their jobs and act faithfully in the best public interest. I’m saddened and disappointed to report that for the many reasons above, this situation is the exception.
The water transition project is an inherently wasteful concept - to replace one existing, operating water supply system with another. It is especially so when water must be transported around a mountain, from the opposite side of Carefree. It is reasonable and just to expect that taxpayers, water company ratepayers and those adversely impacted by the project should receive transparent and honest justification, and an accountable, well-considered plan. The Mayor and the town have provided neither.
Reasonable people, like the Ryans, do not launch costly litigation before concluding that trust would be misplaced.
The involvement or passivity of several of our association’s board members in this matter makes it essential to amend our governing documents to ensure that any sale, lease or other alienation of our association’s common land should be a decision by all members, not just a single person appointed by the board.
To be clear: the vote to amend our bylaws and CC&Rs is not about the whether our association should or should not accept the tank. Whatever the town might have to say further about that is not relevant to this issue. The objective of the vote is good governance within our homeowners association, and ensuring that issues most important to our community are in the hands of association members. Please take the time to examine the voting package circulating within our community, and send in your proxy (absentee) vote soon.
Finally, to avoid criticizing without offering a solution: if the water transition must proceed, there is one ideal site within The Boulders - the site of the former wastewater treatment plant, augmented with a dog park atop the tank and a community demonstration garden of native desert plants around it:

• this site is 50 feet higher than the location along Tom Darlington and the soil is heavily disturbed, so the tank could easily be fully buried and no booster pump would be needed;
  
• the same 10” trunk waterline runs through both sites;
  
• turf for a dog park would require only a minimal depth of
  topsoil over the tank;
  
• condemnation would involve only one owner instead of more
  than three hundred;
  
• it is obviously far better to utilize a heavily disturbed
  “brownfield” site than to destroy preserved open desert;
  
• Boulders homeowners would likely be far happier with limited
  ongoing maintenance traffic (much less than for the wastewater facility) rather than a loss of our common land, and construction traffic would likely be less than for a custom home; and
  
• a dog park would mitigate rising tension within the community over recent efforts of the Boulders Resort to exclude dogs from the golf course.
  For many years The Boulders carried the burden of processing wastewater from the rest of the town in the overtaxed facility at the center of our community. For the town to now also seek to take our preserved common land, the feature that distinguishes our community, for another municipal industrial activity - especially one of no benefit to The Boulders and of dubious value generally - is completely unreasonable.
  Don Schwarzkopf 20 January 2021
  

Exhibit I

Exhibit I

Exhibit K

Exhibit L

Exhibit M

Exhibit O

Exhibit P

Don Schwarzkopf - Report 6 - 2/16/2021

Sixth Report to Members of the Boulders Homeowners Association regarding the Proposed Water Storage Tank
Following last week’s meeting of the Carefree Water Company board, the time for action by members of our association has finally arrived.
why your involvement is needed
The natural desert common land that defines The Boulders is under threat like never before, by those exploiting government power.
the February 9th meeting of the water company
Carefree town officials are completely unwilling to consider any practical alternative to locating the tank on our association’s preserved desert common land. While any normal public utility would explore different engineering alternatives to a given problem and choose among them based upon cost and other factors, Carefree Water insists upon arbitrarily limiting itself to the most rudimentary technology - gravity flow from one specific elevation.
The process by which the town selected our common land has been described by a highly experienced water system engineer as “a lame attempt to back into a particular site, based on handcuffs they put on themselves”.
The “water transition” project itself is of dubious justification and necessity, as described in my prior reports (available on the BHOA website or contact me).
More than an hour of the February 9th meeting was devoted to reading letters vilifying Boulders homeowners for being reluctant to sacrifice our preserved common land, supposedly depriving our fellow Carefree residents of clean water. The letters were strikingly repetitive in phrasing and content, with one writer admitting that they were following a script apparently provided by town officials. The problems alleged in these letters are inconsistent with the fact that the Arizona Department of Environmental Quality has never received a single complaint about the quality of water supplied by Cave Creek.
The visual and environmental impacts of the proposed tank are described in my fifth report. A group of association members have installed “story poles” to indicate the location and bulk of the tank, which are worth a visit although they understate the impact by not including above-ground ancillary equipment and the soil fill that would be placed around the sides of the tank.
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For newer association members who might not fully appreciate how much this unnecessary industrial installation would desecrate the principles on which our distinctive community was founded, I recommend reading The Spirit of The Boulders: A Desert Romance, written by Pam Hait and published in 1988. Copies are currently available on Alibris, eBay and Amazon.
the domino effect
If town officials find it easy and inexpensive to take our common land for the tank, the future is easy to predict.
In August 2017 a town planning group urged more intensive commercialization
of Carefree to increase sales tax collections and town revenues. The group’s
presentation is available on the town’s website:
http://carefree.org/DocumentCenter/View/2099/T own-Council-and-Planning-and-Zoning-Joint- Meeting-Presentation-for-8-14-2017?bidId=.
On page 26 is a list of “Strategy #1” tasks, of which all but one have already been accomplished. The remaining task is:
On pages 17 and 18, the presentation shows that only 1% of Carefree’s land area has existing commercial development, and “remnant” properties potentially available for commercial development comprise only another 2%. The planning group considers this seriously inadequate.
While the “Summary of Important Facts” circulated by the BHOA on February 5th noted that Arizona law has certain protections against condemnation / eminent domain being used to take land for private economic purposes, there is nothing to prevent the town from seizing more of our common land for public purposes such as a new town hall, town council chambers, fire house, water company headquarters, post office, etc., thereby freeing up prime downtown land for additional commercial development.
The most “central” location in all of Carefree is our association’s common land along Tom Darlington Drive and Stagecoach Pass, which generates no tax revenue whatsoever for the town.
“The potential moving of the current Town offices on Sundial Circle, located on a prime retail property in the downtown area, to a central but non-prime retail location and replacing the existing building with a facility and business which would add retail excitement and generate sales tax revenue”
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Town officials’ desire to expand revenue-generating commercial land also helps explain their unwillingness to consider logical alternative locations for the tank. The town’s current emphasis on exploiting undeveloped land to generate local government revenue is in striking contrast to Scottsdale’s regulated preservation of Natural Area Open Space (“NAOS”) and the “General Plan 2030” ratified by Carefree voters in 2012, which states: “special emphasis should be placed on increasing the Town’s inventory of passive open space to preserve some of the prime native desert areas and environmentally sensitive features”. Our association’s common land was classified as passive open space at that time.
Association members only learned of plans for the tank by chance, more than a year after they were formulated. It would not be surprising to discover that town officials already have sketches for a new town hall overlooking the green on the 5th hole north. Town officials consistently denied any intention to rely upon eminent domain - until they did.
an acquiescent BHOA board
There are no indications that those BHOA directors with obviously close connections to Carefree’s mayor have ever made any attempt to serve our community by influencing the town to explore other alternatives to appropriating our common land. To the contrary, as documented in my prior reports, board members have worked closely with town officials towards a negotiated capitulation. According to a witness this has been the mutually agreed plan since early 2019, months before association members discovered anything about a water tank.
the condemnation process
Under Arizona statutes, condemnation must be litigated in superior court if a condemning authority and landowner cannot achieve a negotiated agreement.
There are important reasons why proceeding to court is in the best interests of every member of our association:

1. 1)  If we don’t vigorously resist the town’s obvious appetite for our common land, we will surely lose more and more of it.
   
2. 2)  Generally landowners can obtain much higher compensation in condemnation by proceeding to court. Legal costs for this type of action are minimal, essentially the same as for negotiating a voluntary sale or lease agreement.
   

3
The recent experience of another Arizona HOA, Foothills Reserve, offers excellent guidance for our situation. As described in press reports1, a portion of their common land was condemned by the Arizona Department of Transportation (“ADOT”). ADOT initially offered $ 2.0 million, but agreed to pay the HOA $ 6.5 million when the condemnation went to court.

1. 3)  Our common land is owned by the BHOA, but every member of our association has an easement and entitlement to it, which would be severed if the town takes our land. OABS (Boulders south) members arguably have certain entitlements also. The BHOA and its board of directors have no legal standing to negotiate severance damages for BHOA or OABS members, yet these entitlements would be lost if the board voluntarily sells or leases our land. This would be particularly unfair to those members whose homes are closest to the tank.
   Members of the Foothills Reserve HOA separately litigated for severance damages, through an attorney who works on contingency (i.e. members pay nothing if they are not successful). The press articles cited above report that severance damages are expected to be between $ 15 and 19 million, far greater than what the HOA will receive for its ownership of the land.
   
2. 4)  Although the town’s threatened condemnation rests upon unusually weak justifications, our BHOA board might be reluctant to legally challenge it because of the cost. The “Summary of Important Facts” warned that this could require a special assessment on all members.
   Proceeding to court to obtain higher compensation (per point #2 above) would NOT obligate our association to undertake a costly challenge to the legality of the condemnation. But a within a court- supervised condemnation, members of our association and OABS - individually, as a group or as a formal class - would be free to legally challenge the condemnation at their own expense and initiative. This is exactly what has transpired in the Foothills Reserve case. If successful, the town must reimburse the cost of the challenge.
   

1 https://www.ahwatukee.com/news/article_e5c314ee-950b-11e8-98f0-e7acaac4911f.html, https://www.ahwatukee.com/news/article_1aead9ec-0c4d-11e8-9c2d-1fe39224f4f8.html
The experience of Foothills Reserve demonstrates the crucial structural advantages of taking a condemnation of an HOA’s common land to court - it preserves members’ rights to individually challenge the condemnation and to seek severance damages, as well as obtaining higher compensation for the HOA. In the words of the
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Foothills Reserve board president: “it is never really in the best interest of the party being sued [for condemnation] to accept an offer [i.e. in lieu of condemnation]”.
It has been claimed that only a negotiated capitulation would enable our association to retain architectural and landscape control, but this is incorrect for several reasons:

1. i)  As in any litigation, a settlement with such conditions is entirely possible and even expected. In fact, to ensure the town’s compliance it is far better to have the conditions ordered by the court, than to merely have an agreement that would require separate new litigation to enforce.
   
2. ii)  Our association’s Architectural Review and Control Committee is heavily influenced by Carefree’s mayor. It would be absurd to imagine that they would exercise critical oversight against the town.
   
3. iii)  Theprominenceoftheproposedtanksitealongthetown’sprimary traffic artery should motivate the town to exercise care in any case.
   

Our BHOA board has been invited several times to commit to not accepting an offer from the town in lieu of formal condemnation proceedings, but has not responded.
what you can do
vote
A great many of you have already voted in the initiative currently under way to amend our association’s governing documents. This is simply a politically neutral effort to make any sale, lease or other alienation of our common land a decision for the majority of our association’s members, rather than the board or some person delegated by the board. Democracy is warranted in such an important decision.
Our preserved common land is so integral to the identity of The Boulders, it is doubtful that those who drafted our governing documents ever imagined the possibility of what we currently face.
This initiative should be embraced by the friends of any board member, as well as those who mistrust the connections between certain board members and town officials. For obvious reasons, the board will be under tremendous pressure from town officials to capitulate to a negotiated agreement - yet any such agreement would drastically shortchange association members for their separate entitlements to the common land, which could lead to litigation against the board and our association’s
5
counsel for malfeasance. Amending our governing documents will save our community from such strife.
If you have not yet voted, details can be obtained on the BHOA website or by contacting Dave McKeown (mckeownpgh@gmail.com, (412) 414-8482).
next steps
Assuming that the amendments are implemented, association members should consider carefully any offer from the town in lieu of condemnation and vote accordingly.
If the threatened condemnation proceeds to court, association members should:

• encourage the BHOA board to litigate aggressively to obtain the highest possible compensation for the land;
  
• consider joining separate litigation to obtain severance damages for themselves and their neighbors; and
  
• consider investing in separate litigation to challenge the condemnation.
  In any event, please:
  

• vote in the upcoming BHOA election for those candidates committed to transparency, accountability and upholding our members’ interests over those of town officials; and
  
• if domiciled in Carefree, vote only for town officials who demonstrate respect for the preservation of our open desert land.
  Thank you for your attention. I will happily respond to any questions or comments.
  Don Schwarzkopf 16 February 2021
  

Don Schwartzkopf - Report 7 - 5/6/2021

Seventh Report to Members of the Boulders Homeowners Association regarding the Proposed Water Storage Tank
As many members are aware, the Town of Carefree recently filed a condemnation lawsuit to seize a portion of our association’s common land. This requires our association to take decisive action.
Authority over the conduct of such litigation is vested in our association’s board of directors, under Arizona law and our association’s CC&Rs. For obvious practical reasons, the consideration of legal advice and pending litigation is exempt from open meeting requirements under Arizona law (A.R.S. § 33-1804(A)). The necessity for discretion and confidentiality is particularly obvious inasmuch as the primary decision- maker for the opposing litigant is a member of our association.
Nevertheless, consistent with the commitment to transparency and accountability shared by each member of the board, I’d like to offer the following overview of the context, facts and considerations that could or should enter into the board’s decision-making in this matter. As always, the views expressed herein are my own, and should not be construed as representing those of our association or its board of directors.
impact upon our community
The portion of our common land sought by the town is not some inconspicuous corner of desert wasteland. It is front and center in the public presentation of The Boulders, along Carefree’s de facto main street adjacent to the town’s primary welcome sign.
Topographically, geologically and biologically, the town’s preferred site is among the most valuable and picturesque within our common land, surrounded by striking boulder piles and ancient saguaros. The large tank and its ancillary industrial equipment would be ‘shoehorned’ into a very constricted area between members’ homes, hole #3 of the south course and Tom Darlington Drive.
The Boulders is a unique, historic community that predates the town’s incorporation. It was expressly designed to be surrounded by and set within a natural Sonoran desert landscape, described fifty years ago by RockResorts founder Laurence Rockefeller as “The best land left of the prettiest desert in the world”. We don’t have walls along the surrounding roads like other communities, we have natural desert that has been preserved since our community’s founding.
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To understand the impact of the condemnation, the association’s board and members should be especially wary because town officials have been deliberately deceptive and misleading about the appearance and impact of the tank. This is evident from inconsistencies in their own statements and contradictions between their public pronouncements and sworn testimony in the ongoing litigation initiated by fellow association members.
The most egregious example of such deception is the town’s insistence that the tank will be “underground”. As recently as this week, Mayor Peterson asserted to the board president that the tank would resemble Carefree Water’s main storage tank at Pima Road and Stagecoach Pass, which is entirely below the site’s previously existing grade and thus virtually invisible (leaving aside the large walled compound for equipment). As described in my third report last December, the mayor is contradicted by testimony of the town’s engineers, and by the town’s own documents.
Hidden within the appraisal that the town presented last month with its offer to purchase the land is an illustration never previously disclosed, which more accurately depicts the intended tank installation:

The closely spaced elevation contour lines indicate that the fill piled around the tank (so that it is “underground”) would rise steeply upward from the surrounding terrain, to a flat-topped “mini mesa” at least 70 feet in diameter. Steep sides are necessary to remain within the constrained site. According to sworn testimony from the town’s engineer, the top of the tank will be as much as 10 feet above the existing grade (which is consistent with the elevation contour lines in the illustration being at 1’ intervals). The tank cannot be buried more deeply, due to underground rock and the elevation required for gravity outflow.
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Also NOT underground would be the portion of the concrete tank structure facing Tom Darlington Drive, and the ancillary industrial equipment required for this installation, described in more detail in my third report. This is easily seen in the illustration above, where Tom Darlington Drive is along the left edge.
In the “Carefree Water Fast Facts #3” distributed last week, the town claims that the site will be “landscaped with native desert vegetation”. This has been asserted many times before, but never with any specificity. As described in detail in my fifth report, according to an expert landscape designer and horticulturalist, sizable trees and plants of the type that currently exist on the site cannot possibly survive in the 2 – 3 feet of soil the town indicated that it would place on top of the tank, nor on the steeply sloping sides. Construction would also impact and endanger surrounding vegetation, including the ancient saguaros behind the bunker on golf course property.
Absent more specific landscaping and irrigation plans (and corresponding budget commitments), it must be assumed that the aboveground “mini mesa” would have an appearance similar to the area by our west gate where the oversized septic tank and leach field were installed. In shallow soil and steep slopes with no irrigation, nothing but small grasses and non-native invasive vegetation would be viable.
The illustrations included with “Carefree Water Fast Facts #3” are completely deceptive and misleading, as fully explained in my fifth report. The “before” photo was taken from a low perspective in a direction selected so as to have a rising grade conceal the tank site. The “after” image is a subjective, photoshopped interpretation, not the product of an engineering determination. The town’s contrived images cannot be taken seriously.
The “story poles” erected on site by association members are consistent with the illustration shown above, and should be considered a truthful representation of the location and aboveground bulk of the tank (not including the soil fill around the sides, or the ancillary industrial equipment). I recommend a visit. The site can be easily accessed from the 3rd hole fairway or by parking along Tom Darlington Drive.
alleged public benefit
Some members have argued that our association should give up our common land for the tank because the “water transition” project would purportedly benefit hundreds of other Carefree residents. While members probably agree that our association should act responsibly towards the larger community, the board should carefully evaluate this assertion. I believe that it is untrue.
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There are two aspects to the evaluation: 1) whether a tank site on our common land is necessary for the project; and 2) whether the project is genuinely beneficial and desirable for the town and its residents.
is our site necessary ?
In “Carefree Water Fast Facts #3”, the town claims to have evaluated 32 potential sites for the tank, a number that contradicts past public statements by town officials, documents produced by the town in litigation with our fellow members and sworn testimony of engineers working for the town. Whatever the number, my fifth and sixth reports explained how the town’s methodology was flawed. An expert water system engineer engaged by our association summarized the town’s methodology as “a lame attempt to back into a particular site, based on handcuffs they put on themselves”.
Town officials have always admitted that they “prefer” rather than “require” our site, and their preference from three years ago is increasingly open to question after they revealed, during a UCFD board meeting just two months ago, that a new interconnection for treated water from Scottsdale will run directly into “Neighborhood A”, the portion of Carefree until now supplied with water by Cave Creek.
The central element of the “water transition” project as conceived in 2018 is a new main waterline connecting Carefree Water’s primary collection and storage tank in the far eastern portion of Carefree with Neighborhood A in the farthest western portion of Carefree, on the opposite side of Black Mountain. The proposed tank site on our land is merely a waypoint on that path that happens to be at a desirable elevation. The proposed tank would serve Neighborhood A, but not The Boulders.
Town officials have identified the Lowe’s store in the westernmost portion of Neighborhood A as presenting the greatest peak flow requirement for fire suppression. Moreover, town officials have targeted the 23 undeveloped acres across from Lowe’s as the primary site for new commercial development within Carefree. But Carefree Water has no water storage capacity whatsoever to the south or west of Black Mountain, and the proposed site on our land is more than 2 miles away.
Now that treated water from Scottsdale will flow directly into Neighborhood A, the most logical and obvious location for new water storage capacity is where that new supply and peak demands come together, within Neighborhood A. As the mayor wrote earlier this week: “Water up close to the potential point of usage is key”. This should eliminate the need for the enormously expensive new main waterline from the opposite side of Carefree, and for the tank on our land.
Carefree Water states on its website: “
reach our distribution system. After reaching our system we are required to additionally
water is pumped at least nine times just to
pump water to provide service to our customers as a result of the elevation changes
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within our service area”. The company’s general manager claimed during a presentation two years ago that Neighborhood A would not be an ideal location for water storage because of its comparatively low elevation, but that has now been superseded by the new reality, that water will need to be pumped upward from the new interconnection in any event.
To summarize, there is no reason to believe that the use of our association’s common land is truly necessary for the objectives of the “water transition” project. The town’s original engineering analysis appears to have been dubiously contrived, and it has not been updated to reflect new developments.
is the project worthwhile ?
In a memo distributed to association members in January of this year, Mayor Peterson gave two justifications for the “water transition”: i) Cave Creek’s allegedly poor water quality; and ii) inoperable fire hydrants. My fifth report presented detailed evidence that those justifications were either false or no longer valid. In “Carefree Water Fast Facts #4” circulated last week, those reasons for the project are now no longer mentioned.
“Fast Facts #4” offers new reasons that in my opinion are vague, highly subjective and essentially trivial:
Lack of Representation
More Assured Quality Water Supply
Control of Water = Better Management of Development Increased Economies of Scale
Representation is of no value without accountability. Cave Creek at least has a citizens’ Water Advisory Committee. Carefree Water customers have never been asked their opinion of the “water transition” project notwithstanding the enormous capital expenditure required, equivalent to more than 7 times the company’s annual revenues. The town’s filing of a condemnation lawsuit while refusing to speak with our association’s new board demonstrates that representation in Carefree has failed us.
With only about 2000 customers, Carefree Water was established in defiance of economies of scale. It has no treatment facilities of its own, and must depend upon Scottsdale and Cave Creek to treat and supply its CAP (Central Arizona Project) allocation. Merely expanding its piped distribution system is not going to give Carefree more assurance or control over its water supply.
The “water transition” project would spend $20 million to duplicate an adequate existing distribution system supplying water from the same original source. The only genuine (but largely unspoken) motivations appear to be increasing the political power of Carefree’s mayor, enhancing real estate values in a neighborhood where many town
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officials reside, and political payback for support from the narrow group of voters who put them in power.
There has been no economic analysis of whether the benefits that would result from the “water transition” project justify its enormous cost (this is a completely different issue from whether the project is financeable). After a career in economics and finance, and having spent most of the 1990s working to revive and build viable businesses in the former Soviet Union and eastern Europe, I am struck by the similarities. The Soviet system collapsed because resources were allocated according to central planning and political objectives, disregarding both economic realities and external consequences.
I am appalled to see Carefree following the same path. Economists call it “value subtraction” when the outputs (i.e. the same water flowing from the same taps) are worth less than the inputs (i.e. $20 million). It is also a major deficiency in governance that this massive capital expenditure and its financing, approximately three times the town’s typical annual total expenditures, are being organized without transparency outside the normal budgeting process.
“Carefree Water Fast Facts #5” tells the story of how Carefree has moved to acquire assets and water accounts within the town that had historically been served by Cave Creek. It begs the question of why Carefree Water can’t simply negotiate a bulk water purchasing arrangement or swap with Cave Creek, to use the existing supply infrastructure for these new accounts rather than spending $20 million for new infrastructure to transport the same CAP water from the opposite side of Carefree. Until a recent political decision to sever ties, Carefree purchased a substantial volume of treated water in bulk from Cave Creek, at a lower cost than from Scottsdale.
The “water transition” project as currently designed does not merit the sacrifice of our preserved open desert common land, in my opinion.
difficult decisions facing the association’s board
Board directors are not “misinformed”. It is all too apparent how and why the preserved open desert common land that makes The Boulders so distinctive is on the path to becoming the roadkill of local politics. The town of Carefree is now using brute force government action, i.e. condemnation through eminent domain, to steamroller those who would be injured by this unjustifiable project
The town’s offer of $20,100 for our association’s land is based upon a grossly inappropriate appraisal methodology and fails to even consider the damages to association members beyond the value of the land itself. Members generally seem to
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recognize and agree that the board has no alternative but to contest this inadequacy through litigating the condemnation.
Contrary to the town’s appraiser’s view that they would be taking just a piece of useless land, good for no other purpose, it is more accurate and true to believe that this prominent industrialization of heretofore preserved open space will materially change the character of The Boulders in its entirety. Moreover, if the town demonstrates that this land can be taken, nowhere along our external road frontage is safe from further loss to condemnation for public use. The town will of course deny any current intentions, but the precedent will have been established and their motivations can only increase as the town develops further.
By filing this first condemnation lawsuit, the town has shut down the possibility of constructive negotiation that might have uncovered means of achieving the objectives of town officials without damaging our association’s property. Through their attorneys, the town rejected any meeting with our new board. If that attitude should somehow change, I believe that any discussion should be conditioned upon a stay in the litigation.
As things currently stand, the board faces the difficult task of deciding what actions and scope of expenditure are warranted beyond merely contesting the valuation. It seems obvious that the board cannot sit idly by and allow our association’s most valuable asset to be wastefully and unnecessarily degraded.
Challenging a right of condemnation (as opposed to valuation) directly through litigation is known to be costly, and courts generally favor the interests of governments. As discussed in my fourth report, however, the particulars of this case make it unusually vulnerable to successful challenge.
Alternatively or simultaneously, the board might determine that it is in the association’s best interest to engage in or support less direct means to defeat the condemnation. Without the “water transition” project there would be no need for the additional storage tank on our land.
In these efforts I believe that the board should develop alliances with the OABS (Boulders south HOA) and the Resort, who would also be harmed by industrialization of the preserved open desert space surrounding our community. Alliances should be cultivated with other Carefree residents concerned about the project’s enormous cost and wastefulness. Association members who wish to initiate actions on their own should be supported.
I know that all of the directors are well aware of the widely divergent range of opinions among members about how much the association might justifiably spend in seeking to preserve its principal asset. Some members, it seems, would not spend a
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penny to defend our common land. Many others have said that they would not part with the land for any price. Our CC&Rs require the approval of a majority of members to increase regular assessments by more than 20%, and special assessments require a majority vote at a meeting in which a quorum of members are present.
More than one real estate agent has told me that homes within The Boulders typically command a significant premium, perhaps 20%, over comparable homes just outside our gates. We can expect that this premium would disappear in tandem with takings of our open land, with the greatest impact up front with the precedent-setting first condemnation.
From an economic perspective, to prevent the loss of our land it would be justifiable to spend an amount up to the value of what might be lost, adjusted for the probability of success, after probable compensation. Unfortunately these variables are extremely difficult to estimate, and they are changing continuously.
Members should at least bear in mind that although expenditures might seem large in personal terms, the board’s obligation is protect the value of property throughout the association, which in total exceeds $300 million. Our association has never before faced such a significant threat to its character and property values, and it seems inevitable that the necessary expenditures will be equally unprecedented. Being sued costs money.
Those who are concerned by this should not hesitate to blame the town officials who brought this damaging, ill-considered and extraordinarily wasteful project upon us.
The foregoing is not intended to endorse any particular strategy, nor to imply that any decision has already been taken by the board. Other members of the board have seen an early draft of this document, but as yet there has been no discussion as a board of these issues. Again, the opinions are my own, although the facts will stand for themselves.
Don Schwarzkopf 6 May 2021

Anton Wilke - 2/22/2021

Association Residents,

An email I sent to the Board has been posted to the Water Reservoir Information page for some time. Now that I am a candidate for the Board I feel it is more appropriate to replace it with a similar letter to our residents.
In my email to the Board I urged members to respect their fiduciary obligations to all Association members. I made explicit assumptions as to what legal advice the Board would receive and concluded the obligation would be to avoid expensive and likely futile legal action against the town and UCFD.
As a Board member myself, if elected I will no longer have to make assumptions about the Association’s legal advice, but will instead have an obligation to carefully weigh it as part of my Duty of Care. My assumption is still that the legal advice indicates that a lawsuit to stop installation of the water tank will be expensive to pursue and unlikely to succeed, but my responsibility to make informed decisions will require that I set my prior assumptions aside when I am actually exposed to all the relevant information. I will also have to consider less dramatic actions that may be appropriate, such as negotiating or litigating the amount of compensation from the town.
As a past Board member I do have a knowledge base regarding this issue, but much has happened in the past year and my duty will be to research the evidentiary history in detail before casting any votes. I understand that my duty will be to act in a prudent and reasonable manner, using objective criteria as one should for example when making a business decision, and further that all Board members are bound to avoid arbitrary or capricious actions.
As a Board member, I will be keenly aware of my responsibility to act in the best interests of all HOA members.
Anton Wilke

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Last Updated: June 24, 2021