Subject: FACT CHECK: 9/1 BHOA Board Communication
Carefree Unity was formed when more than twenty former North Boulders HOA Directors came together to sponsor a full-page ad in the August 4 Sonoran News describing our position on the current controversy surrounding the proposed water storage reservoir in our common area.
Carefree Unity has now launched a website dedicated to providing objective information on topics of community interest. This email and all content on the Carefree Unity website has been reviewed and approved by a minimum of five of these former Directors before posting. Please click on this link (carefreeunity.com) and subscribe on the website homepage to be notified of new postings.
The following fact checking analysis (in green) of the most recent BHOA Board communication to members will be posted to the Carefree Unity website within a few days; additional information on selected topics will be added over time in the public interest.
STATEMENT OF THE BHOA BOARD OF DIRECTORS
Update - Water Tank Litigation
September 1, 2021
Your Board of Directors would like to offer - in advance of any decision by the Superior Court and within the limits of what can be said during ongoing litigation - a brief explanation of how we view the eminent domain lawsuit filed by the Town of Carefree against our association, and why we believe it is our duty to take prudent steps to oppose this action.
It is appropriate for the Board to communicate regularly to residents on these issues.
We have always said that a legal contest over whether a municipality or its instrumentalities has the power to condemn our property could be inordinately expensive and ultimately fruitless. This statement is misleading. Even disregarding prior statements, we count at least six instances on the current BHOA website of current Board members asserting that a lawsuit to stop condemnation would likely be or could plausibly be successful. We are not pursuing that strategy. But this does not mean that we accept at face value the claims made by the Town (loudly echoed by its self-interested supporters) for why an industrial water tank facility located in The Boulders is necessary to expand Carefree Water service to those residents who now receive Cave Creek water. We believe this passage contains the first visible evidence in this document of attempts to disparage the project and any project supporters through inappropriate attribution, negative association and outright mischaracterization. We will go into some detail here to make the general point, but in the interests of efficiency will comment less extensively, and sometimes not at all, about similar passages elsewhere.
In this passage “self-interested supporters” seems to us to be a negative characterization made without evidence, and made despite the fact the current BHOA Board has repeatedly argued (including later in this document) that the foundation of its own position is self-interest. “Loudly echoed” seems to us at least as applicable to two years of communications from water project opponents as from advocates, at least within the north Boulders community. Similarly, “industrial water tank” is a clearly inaccurate description (it is a municipal water tank) that may be intended to carry negative associations.
The Town has insisted that placement of the tank on our land is an essential and non-negotiable element of the overall water expansion project. The Town has never made such a statement. Instead, it described the selection of our property as consistent with the principle of providing “the greatest benefits to the most residents while causing the least impositions to the fewest residents, and at the lowest cost.” Further, officials of both the town and the Water Company met with Board members on multiple occasions in 2019. In those meetings at least a dozen other possible locations were discussed (including at least two suggested by current Board members); the UCFD concluded that none of those sites were able to meet that principle. Therefore, we must examine the justifications given by the Town for that project to determine whether they are accurate, credible and convincing. In doing so we are aided by access to thousands of pages of internal documents produced by the Town and its engineers in litigation, augmented by sworn testimony from key individuals. We also have conferred with independent experts in water system design and landscaping, informally and thus without cost to the association. These experts have never been identified (even to all Board members) and their advice has often conflicted with advice given by experts who were disclosed to the prior Board.
Without going into detail in this brief statement, we believe the Town has given a succession of false justifications for the project and the tank: poisonous water, an irrelevant utility easement, purported economic efficiency (without any data or proof), fantasy renderings of an invisible tank, and so on. The evidence also shows that our land was targeted even before engineers were specifically engaged, suggesting their mandate was to provide “cover” for taking BHOA land. This was obvious to other engineers with whom we and the prior Board conferred. Rather than taking the points in this paragraph individually, for now we will simply say our membership includes most Board members who dealt with these issues in 2019 and 2020 and we see no statements that appear to be accurate (look for a more detailed analysis in the future).
The tank is not necessary to expand Carefree Water service into western Carefree homes. These residences will be adequately supplied by a new interconnection that will deliver large volumes of CAP (Central Arizona Project) water that has been treated by Scottsdale for Carefree Water near the junction of Terravita Way with Carefree Highway. This conflicts with the public 2/9/21 Carefree Water Company presentation. Further, no independent analysis can come to the stated conclusion without system operational requirements and comprehensive design details, as well as the engineering expertise and time to develop a supply sufficiency judgement. The Town has not released the former and the BHOA would most likely have to initiate a large contract to obtain access to the latter.
A new storage tank also would have no impact upon the available supply of water from either the CAP or the Town aquifer, or upon long term water security. The “water transition” project actually would render Carefree more vulnerable with Scottsdale as its exclusive source of treated water. Again in this section we can identify no obviously correct statements. The water acquisition project will increase the number of CAP inputs to the overall Carefree water system by one, from three to four, and the new storage tank will provide west Carefree with access for the first time to two of these inputs and the aquifer. Water security will be enhanced by additional input flexibility on a daily basis and by improved aquifer utilization in the long term. Further, a Cave Creek interconnect is being retained, so Scottsdale will not become Carefree’s sole source of treated water.
One might attempt to justify the tank as a source of water storage capacity to meet the high flow requirements for fire suppression that Cave Creek now provides. At the moment additional fire suppression flow is needed only to cover the Lowe’s store. Does the Town really plan to construct a tank more than two miles away (on our property), install large diameter pipes down Tom Darlington Drive and Carefree Highway, just in case there could be a major fire at Lowe’s? This defies both common sense and common practice (which is to locate tanks for fire use adjacent to where major fire suppression might be needed). Not to mention that this entire expense could be avoided simply by reversing the Town’s political decision to reject the use of Cave Creek water to suppress a potential fire in western Carefree. Water for fighting fires at Lowe’s currently originates more than ten miles away and passes through three pumping stations to compensate for elevation gain; for multiple reasons there is no guarantee of sufficient flow in all conditions. A two-mile gravity fed source is a far superior design, and not just for Lowe’s. Regarding the other statements of this paragraph, we have concluded a great deal of additional detail is necessary to fully explain both the inaccuracies of the Board’s statements and the design improvements inherent in the proposed design. We therefore plan a more comprehensive report; when completed we will post it on the Carefree Unity website.
Likewise, the Town’s claims that the tank will have only minimal impact on the pristine desert landscape wither under examination. Definitive drawings by their engineers show that the existing natural rolling topography would be replaced with a steep-sided flat-topped “mesa” about 70 feet in diameter, and approximately 10 feet above existing grade. The engineers and general manager of Carefree Water also have testified that a sizable shed, industrial equipment, security fencing, part of the tank, and access roadways all would be above ground and exposed. As designed, the soil will be raised at different points between roughly two and eight feet above existing grade (the average will be about five feet, not ten). The Town’s actual renderings (available for viewing on the Carefree Unity website) have been shared with the public. What we see are three boxes with some internal detail in sizes ranging from roughly 20 to 80 square feet. In the September 4 Sonoran News, Coe & Van Loo Project manager Tracey Grunden describes this as “municipal equipment necessary for WSR operation such as electrical, chlorination, and blower equipment” (once again, we speculate the Board's use of “industrial” is intentional hyperbole). Mr. Grunden also says the landscape architect has plans to screen the equipment from Tom Darlington with “appropriate additional landscaping,” and he confirms what the public drawings have already told us: nothing on the Tom Darlington side of the tank will be visible to any Boulders residents. The “security fencing” and “part of the tank” will also be obscured from Tom Darlington to some extent by landscaping, and the “access roadways” consist of one short two-entrance decomposed granite driveway meant for service access from Tom Darlington. Finally, to the extent any of these elements are “exposed,” it will be only on the Tom Darlington side.
Native plants like the saguaros and palo verde now present will never survive in 2 feet of soil over a concrete slab.
This statement is misleading. There are no specimen saguaros or palo verdes currently within the footprint of the future water reservoir, and many native plants will in fact be able to thrive above it. The Project Manager has stated that CVL has engaged a qualified and registered landscape architect who has a landscape plan that is appropriate for this location and will subsequently be posted here in more detail. We would also note that the 2019 BHOA Board received an opinion from the University of Arizona Botany Department that virtually any succulent would happily grow above the tank, since typical cactus root depths are around six inches.
The tank facility would be obviously industrial and highly visible from members’ homes, the golf course, homes on and at the foot of Black Mountain, and Tom Darlington Drive, just a few yards before the Town’s “Welcome to Carefree” sign. “Highly visible” is subjective, but as designed only soil and plants will be visible from members’ homes and we think likely from the golf course as well. We won’t comment again on “industrial.”
We also must take notice that The Town seems to be making a habit of using eminent domain to implement changes, both on our land and in the Town center. There is good reason to fear that all of our association’s open land along Tom Darlington Drive is an unstated target for the (already announced) relocation of existing public facilities like Town Hall, to make way for tax-generating commercial use. To the contrary, we believe there is very good reason to rely on the Town’s assertion that this will never be supported by the Town Council and that the steps to such an eventuality are quite implausible. The Town has actually addressed this in considerable detail since the Board has made this assertion before; additional detail may be included in a subsequent Carefree Unity post.
Opinions vary within our Board as to the possible motives of those utilizing false pretenses to promote the tank and its role in an enormously costly plan to expand the water system. But regardless of actual motives, the Town has failed to provide us with a single good reason to relinquish our association’s preserved desert common land - including their laughable purchase offer of $20,100. The Board has paid for but refused to accept an appraisal commissioned by the previous Board. We believe that this appraisal was being prepared by an appraiser familiar to the condemnation courts and would likely have come in within 50% or so of the town’s offer. We do wish the Board luck in obtaining more compensation, but the hiring of a second appraiser and adding billing time for new lawyers has raised their break-even point considerably.
As your elected representatives, it is our foremost duty to protect and preserve the assets of the association as well as the individual property rights of our members. We believe that every member of our association acquired their home with the reasonable expectation that the association’s common land would be preserved in perpetuity as open desert. The natural desert setting is intrinsic to the identity of The Boulders, and it adds significant value to the investment each of us has made. We believe that placement of the tank facility on our common land would have a disastrous impact upon the primary street frontage of our community, and would materially devalue every home in The Boulders as well as the experience of the golf resort. We find little evidence to support the statements of the final sentence.
We are not distracted by smokescreens and pay no attention to name-calling. We are not “selfish” for striving to preserve what little natural open space remains in Carefree. Everyone passing our road frontage – resident and visitor alike - benefits from the unspoiled desert views. If this Board were truly “striving to preserve what little natural open space remains in Carefree”, we would expect their focus occasionally to extend beyond one 0.7 acre parcel in which they have a personal interest (for example to the open space adjacent to our East Gate, where restoration landscaping has not yet begun), and indeed would expect them to refrain from nominating other Carefree open space parcels as alternative water tank locations as they have sometimes done.
We also were not selfish in accepting for over forty years the ever-increasing volumes of sewage sent for treatment to the small plant originally intended solely for our community. Relocation of that plant was necessitated by the growth of the Town, not as a favor to the Boulders. Carefree is synonymous with The Boulders; our landscape is a rare treasure worth preserving, not one to be exploited for personal and political gain. This water treatment plant had operated at capacity for many years, so growth of the Town was simply not a factor in its removal. The removal of this plant started as an initiative entirely or primarily backed by Boulders residents, and we believe the evidence shows its removal was primarily a consequence of our activism.
The Town in its complaint has attempted to deceive even the Court in two significant ways: The system expansion and the tank project from day one have been presented as a single unified project of Carefree Water Company and its parent, the Carefree Utilities Community Facilities District (“UCFD”). The UCFD made the initial purchase offer for our property. But Town officials belatedly discovered that the UCFD (and its Water Company subsidiary) are not entitled to “immediate possession” if they successfully condemn our property (even though both are entitled to acquire property by eminent domain). The constitution grants this right only to the Town itself, which means the UCFD would need to pay the BHOA “just compensation” for the property, determined in a jury trial, before it could take possession. The Town therefore made a second purchase offer in its own name, in an unscrupulous attempt to claim immediate possession, less than three hours after the April 2nd mass resignation of board and ARCC members. Our association is opposing this shameless attempt to flout the Arizona constitution. We know of only one connection between the April 2nd resignations and the town’s eminent domain action. That one connection was the installation of our current Board. We would encourage current Board members to examine their contemporaneous statements and actions for clues as to the events that followed. Also, as the Board describes the Town’s actions of April 2nd, they seem to be saying they were rooted in the provisions of the Arizona constitution before accusing the Town of shamelessly flouting that same constitution. These two statements appear to be logical contradictions.
Second, the Town has blatantly misrepresented to the Court that only the BHOA has an ownership interest in the subject land, and that each BHOA member has empowered the association to negotiate for any private damages they may have in the event of a condemnation. Our CC&Rs grant each member legal entitlements in and to all Common Areas, and those rules do not abrogate any individual property rights a member may have (such as unique damages resulting from the condemnation). We are vigorously working to protect all these property rights. The prior Board also committed to protect individual member property rights by informing the town that the BHOA would make no voluntary financial settlement of an eminent domain suit. As we understand them, the current Board is following the same course.
Expenses doubtless will be incurred in order to change course from the fully “pro-Town” stance of the prior Board and oppose the taking of our common land. But we collectively have more than $300 million of aggregate property value that would be significantly and adversely impacted by the water tank facility. Your Board is of the unanimous view that our defense strategy in the current lawsuit is not only the most prudent but one that we as fiduciaries are required to take given these stakes. We also believe that the vast majority of the membership agrees. Inevitably, some may see things differently. But these individuals are the true “vocal minority,” with motivations other than protection of our association, its assets, and our members. As we understand the statements of the current Board, it is following the same strategy as the previous Board of challenging the town’s financial compensation offer in court (in fact, given our governing documents, no other option was ever seriously considered). While they assert a course change, the new Board’s actual description of the legal strategy seems to be unchanged. Given that residents, including members of this new Board, were informed of the strategy multiple times by last year’s Board, it seems the “course change” has either not been explained or is simply a disingenuous phrase used to justify additional expenses they imply will be coming, perhaps as a result of firing and replacing an appraiser, several lawyers and a community manager.
We all look forward to the point in time when we are able to put the current issues behind us and fully enjoy the gift that is our wonderful home in The Boulders.
Carefree Unity was formed when more than twenty former North Boulders HOA Directors came together to sponsor a full-page ad in the August 4 Sonoran News describing our position on the current controversy surrounding the proposed water storage reservoir in our common area.
Carefree Unity has now launched a website dedicated to providing objective information on topics of community interest. This email and all content on the Carefree Unity website has been reviewed and approved by a minimum of five of these former Directors before posting. Please click on this link (carefreeunity.com) and subscribe on the website homepage to be notified of new postings.
The following fact checking analysis (in green) of the most recent BHOA Board communication to members will be posted to the Carefree Unity website within a few days; additional information on selected topics will be added over time in the public interest.
STATEMENT OF THE BHOA BOARD OF DIRECTORS
Update - Water Tank Litigation
September 1, 2021
Your Board of Directors would like to offer - in advance of any decision by the Superior Court and within the limits of what can be said during ongoing litigation - a brief explanation of how we view the eminent domain lawsuit filed by the Town of Carefree against our association, and why we believe it is our duty to take prudent steps to oppose this action.
It is appropriate for the Board to communicate regularly to residents on these issues.
We have always said that a legal contest over whether a municipality or its instrumentalities has the power to condemn our property could be inordinately expensive and ultimately fruitless. This statement is misleading. Even disregarding prior statements, we count at least six instances on the current BHOA website of current Board members asserting that a lawsuit to stop condemnation would likely be or could plausibly be successful. We are not pursuing that strategy. But this does not mean that we accept at face value the claims made by the Town (loudly echoed by its self-interested supporters) for why an industrial water tank facility located in The Boulders is necessary to expand Carefree Water service to those residents who now receive Cave Creek water. We believe this passage contains the first visible evidence in this document of attempts to disparage the project and any project supporters through inappropriate attribution, negative association and outright mischaracterization. We will go into some detail here to make the general point, but in the interests of efficiency will comment less extensively, and sometimes not at all, about similar passages elsewhere.
In this passage “self-interested supporters” seems to us to be a negative characterization made without evidence, and made despite the fact the current BHOA Board has repeatedly argued (including later in this document) that the foundation of its own position is self-interest. “Loudly echoed” seems to us at least as applicable to two years of communications from water project opponents as from advocates, at least within the north Boulders community. Similarly, “industrial water tank” is a clearly inaccurate description (it is a municipal water tank) that may be intended to carry negative associations.
The Town has insisted that placement of the tank on our land is an essential and non-negotiable element of the overall water expansion project. The Town has never made such a statement. Instead, it described the selection of our property as consistent with the principle of providing “the greatest benefits to the most residents while causing the least impositions to the fewest residents, and at the lowest cost.” Further, officials of both the town and the Water Company met with Board members on multiple occasions in 2019. In those meetings at least a dozen other possible locations were discussed (including at least two suggested by current Board members); the UCFD concluded that none of those sites were able to meet that principle. Therefore, we must examine the justifications given by the Town for that project to determine whether they are accurate, credible and convincing. In doing so we are aided by access to thousands of pages of internal documents produced by the Town and its engineers in litigation, augmented by sworn testimony from key individuals. We also have conferred with independent experts in water system design and landscaping, informally and thus without cost to the association. These experts have never been identified (even to all Board members) and their advice has often conflicted with advice given by experts who were disclosed to the prior Board.
Without going into detail in this brief statement, we believe the Town has given a succession of false justifications for the project and the tank: poisonous water, an irrelevant utility easement, purported economic efficiency (without any data or proof), fantasy renderings of an invisible tank, and so on. The evidence also shows that our land was targeted even before engineers were specifically engaged, suggesting their mandate was to provide “cover” for taking BHOA land. This was obvious to other engineers with whom we and the prior Board conferred. Rather than taking the points in this paragraph individually, for now we will simply say our membership includes most Board members who dealt with these issues in 2019 and 2020 and we see no statements that appear to be accurate (look for a more detailed analysis in the future).
The tank is not necessary to expand Carefree Water service into western Carefree homes. These residences will be adequately supplied by a new interconnection that will deliver large volumes of CAP (Central Arizona Project) water that has been treated by Scottsdale for Carefree Water near the junction of Terravita Way with Carefree Highway. This conflicts with the public 2/9/21 Carefree Water Company presentation. Further, no independent analysis can come to the stated conclusion without system operational requirements and comprehensive design details, as well as the engineering expertise and time to develop a supply sufficiency judgement. The Town has not released the former and the BHOA would most likely have to initiate a large contract to obtain access to the latter.
A new storage tank also would have no impact upon the available supply of water from either the CAP or the Town aquifer, or upon long term water security. The “water transition” project actually would render Carefree more vulnerable with Scottsdale as its exclusive source of treated water. Again in this section we can identify no obviously correct statements. The water acquisition project will increase the number of CAP inputs to the overall Carefree water system by one, from three to four, and the new storage tank will provide west Carefree with access for the first time to two of these inputs and the aquifer. Water security will be enhanced by additional input flexibility on a daily basis and by improved aquifer utilization in the long term. Further, a Cave Creek interconnect is being retained, so Scottsdale will not become Carefree’s sole source of treated water.
One might attempt to justify the tank as a source of water storage capacity to meet the high flow requirements for fire suppression that Cave Creek now provides. At the moment additional fire suppression flow is needed only to cover the Lowe’s store. Does the Town really plan to construct a tank more than two miles away (on our property), install large diameter pipes down Tom Darlington Drive and Carefree Highway, just in case there could be a major fire at Lowe’s? This defies both common sense and common practice (which is to locate tanks for fire use adjacent to where major fire suppression might be needed). Not to mention that this entire expense could be avoided simply by reversing the Town’s political decision to reject the use of Cave Creek water to suppress a potential fire in western Carefree. Water for fighting fires at Lowe’s currently originates more than ten miles away and passes through three pumping stations to compensate for elevation gain; for multiple reasons there is no guarantee of sufficient flow in all conditions. A two-mile gravity fed source is a far superior design, and not just for Lowe’s. Regarding the other statements of this paragraph, we have concluded a great deal of additional detail is necessary to fully explain both the inaccuracies of the Board’s statements and the design improvements inherent in the proposed design. We therefore plan a more comprehensive report; when completed we will post it on the Carefree Unity website.
Likewise, the Town’s claims that the tank will have only minimal impact on the pristine desert landscape wither under examination. Definitive drawings by their engineers show that the existing natural rolling topography would be replaced with a steep-sided flat-topped “mesa” about 70 feet in diameter, and approximately 10 feet above existing grade. The engineers and general manager of Carefree Water also have testified that a sizable shed, industrial equipment, security fencing, part of the tank, and access roadways all would be above ground and exposed. As designed, the soil will be raised at different points between roughly two and eight feet above existing grade (the average will be about five feet, not ten). The Town’s actual renderings (available for viewing on the Carefree Unity website) have been shared with the public. What we see are three boxes with some internal detail in sizes ranging from roughly 20 to 80 square feet. In the September 4 Sonoran News, Coe & Van Loo Project manager Tracey Grunden describes this as “municipal equipment necessary for WSR operation such as electrical, chlorination, and blower equipment” (once again, we speculate the Board's use of “industrial” is intentional hyperbole). Mr. Grunden also says the landscape architect has plans to screen the equipment from Tom Darlington with “appropriate additional landscaping,” and he confirms what the public drawings have already told us: nothing on the Tom Darlington side of the tank will be visible to any Boulders residents. The “security fencing” and “part of the tank” will also be obscured from Tom Darlington to some extent by landscaping, and the “access roadways” consist of one short two-entrance decomposed granite driveway meant for service access from Tom Darlington. Finally, to the extent any of these elements are “exposed,” it will be only on the Tom Darlington side.
Native plants like the saguaros and palo verde now present will never survive in 2 feet of soil over a concrete slab.
This statement is misleading. There are no specimen saguaros or palo verdes currently within the footprint of the future water reservoir, and many native plants will in fact be able to thrive above it. The Project Manager has stated that CVL has engaged a qualified and registered landscape architect who has a landscape plan that is appropriate for this location and will subsequently be posted here in more detail. We would also note that the 2019 BHOA Board received an opinion from the University of Arizona Botany Department that virtually any succulent would happily grow above the tank, since typical cactus root depths are around six inches.
The tank facility would be obviously industrial and highly visible from members’ homes, the golf course, homes on and at the foot of Black Mountain, and Tom Darlington Drive, just a few yards before the Town’s “Welcome to Carefree” sign. “Highly visible” is subjective, but as designed only soil and plants will be visible from members’ homes and we think likely from the golf course as well. We won’t comment again on “industrial.”
We also must take notice that The Town seems to be making a habit of using eminent domain to implement changes, both on our land and in the Town center. There is good reason to fear that all of our association’s open land along Tom Darlington Drive is an unstated target for the (already announced) relocation of existing public facilities like Town Hall, to make way for tax-generating commercial use. To the contrary, we believe there is very good reason to rely on the Town’s assertion that this will never be supported by the Town Council and that the steps to such an eventuality are quite implausible. The Town has actually addressed this in considerable detail since the Board has made this assertion before; additional detail may be included in a subsequent Carefree Unity post.
Opinions vary within our Board as to the possible motives of those utilizing false pretenses to promote the tank and its role in an enormously costly plan to expand the water system. But regardless of actual motives, the Town has failed to provide us with a single good reason to relinquish our association’s preserved desert common land - including their laughable purchase offer of $20,100. The Board has paid for but refused to accept an appraisal commissioned by the previous Board. We believe that this appraisal was being prepared by an appraiser familiar to the condemnation courts and would likely have come in within 50% or so of the town’s offer. We do wish the Board luck in obtaining more compensation, but the hiring of a second appraiser and adding billing time for new lawyers has raised their break-even point considerably.
As your elected representatives, it is our foremost duty to protect and preserve the assets of the association as well as the individual property rights of our members. We believe that every member of our association acquired their home with the reasonable expectation that the association’s common land would be preserved in perpetuity as open desert. The natural desert setting is intrinsic to the identity of The Boulders, and it adds significant value to the investment each of us has made. We believe that placement of the tank facility on our common land would have a disastrous impact upon the primary street frontage of our community, and would materially devalue every home in The Boulders as well as the experience of the golf resort. We find little evidence to support the statements of the final sentence.
We are not distracted by smokescreens and pay no attention to name-calling. We are not “selfish” for striving to preserve what little natural open space remains in Carefree. Everyone passing our road frontage – resident and visitor alike - benefits from the unspoiled desert views. If this Board were truly “striving to preserve what little natural open space remains in Carefree”, we would expect their focus occasionally to extend beyond one 0.7 acre parcel in which they have a personal interest (for example to the open space adjacent to our East Gate, where restoration landscaping has not yet begun), and indeed would expect them to refrain from nominating other Carefree open space parcels as alternative water tank locations as they have sometimes done.
We also were not selfish in accepting for over forty years the ever-increasing volumes of sewage sent for treatment to the small plant originally intended solely for our community. Relocation of that plant was necessitated by the growth of the Town, not as a favor to the Boulders. Carefree is synonymous with The Boulders; our landscape is a rare treasure worth preserving, not one to be exploited for personal and political gain. This water treatment plant had operated at capacity for many years, so growth of the Town was simply not a factor in its removal. The removal of this plant started as an initiative entirely or primarily backed by Boulders residents, and we believe the evidence shows its removal was primarily a consequence of our activism.
The Town in its complaint has attempted to deceive even the Court in two significant ways: The system expansion and the tank project from day one have been presented as a single unified project of Carefree Water Company and its parent, the Carefree Utilities Community Facilities District (“UCFD”). The UCFD made the initial purchase offer for our property. But Town officials belatedly discovered that the UCFD (and its Water Company subsidiary) are not entitled to “immediate possession” if they successfully condemn our property (even though both are entitled to acquire property by eminent domain). The constitution grants this right only to the Town itself, which means the UCFD would need to pay the BHOA “just compensation” for the property, determined in a jury trial, before it could take possession. The Town therefore made a second purchase offer in its own name, in an unscrupulous attempt to claim immediate possession, less than three hours after the April 2nd mass resignation of board and ARCC members. Our association is opposing this shameless attempt to flout the Arizona constitution. We know of only one connection between the April 2nd resignations and the town’s eminent domain action. That one connection was the installation of our current Board. We would encourage current Board members to examine their contemporaneous statements and actions for clues as to the events that followed. Also, as the Board describes the Town’s actions of April 2nd, they seem to be saying they were rooted in the provisions of the Arizona constitution before accusing the Town of shamelessly flouting that same constitution. These two statements appear to be logical contradictions.
Second, the Town has blatantly misrepresented to the Court that only the BHOA has an ownership interest in the subject land, and that each BHOA member has empowered the association to negotiate for any private damages they may have in the event of a condemnation. Our CC&Rs grant each member legal entitlements in and to all Common Areas, and those rules do not abrogate any individual property rights a member may have (such as unique damages resulting from the condemnation). We are vigorously working to protect all these property rights. The prior Board also committed to protect individual member property rights by informing the town that the BHOA would make no voluntary financial settlement of an eminent domain suit. As we understand them, the current Board is following the same course.
Expenses doubtless will be incurred in order to change course from the fully “pro-Town” stance of the prior Board and oppose the taking of our common land. But we collectively have more than $300 million of aggregate property value that would be significantly and adversely impacted by the water tank facility. Your Board is of the unanimous view that our defense strategy in the current lawsuit is not only the most prudent but one that we as fiduciaries are required to take given these stakes. We also believe that the vast majority of the membership agrees. Inevitably, some may see things differently. But these individuals are the true “vocal minority,” with motivations other than protection of our association, its assets, and our members. As we understand the statements of the current Board, it is following the same strategy as the previous Board of challenging the town’s financial compensation offer in court (in fact, given our governing documents, no other option was ever seriously considered). While they assert a course change, the new Board’s actual description of the legal strategy seems to be unchanged. Given that residents, including members of this new Board, were informed of the strategy multiple times by last year’s Board, it seems the “course change” has either not been explained or is simply a disingenuous phrase used to justify additional expenses they imply will be coming, perhaps as a result of firing and replacing an appraiser, several lawyers and a community manager.
We all look forward to the point in time when we are able to put the current issues behind us and fully enjoy the gift that is our wonderful home in The Boulders.