A lawsuit recently filed against the Ahwatukee Recreation Center (ARC) has been dismissed but the man behind the suit says it’s just the beginning. His ultimate goal is to make membership to the ARC voluntary for all homeowners within the community.
Rayburn Coawette sued the ARC, arguing that the community CC&Rs have not been updated to reflect the 1996 amendment to the Housing for Older Person’s Act, which he says means the association is not keeping up its end of a contract with homeowners. The 1996 amendment eliminated the requirement for age-restricted communities to provide “significant facilities and services” to care for the physical and social needs of its residents.
“The declaration admits it’s a recreation facility designed specifically to comply with the federal HOP Act of 1989 and any amendments after that,” Coawette said. “It also says it will comply consistent with every detail of the HOPA requirements regarding a provision of housing and significant facilities and services designed to meet the physical and social needs of older persons. It says it’s going to comply consistently with every amendment that comes out regarding that provision. It has not done that for more than 10 years.”
Coawette does not use the recreation center and feels he should not be forced to pay membership for it. According to Coawette, there are hundreds of homeowners in the community who, like himself, don’t use the facility and would rather not pay for it, especially now when the ARC is considering some expensive future projects.
In pleadings to the court the HOA argued that while the amendment removed the requirement for communities to provide facilities it does not prohibit communities with those facilities from continuing to operate.
“The act made the provision of such services and facilities permissive, not mandatory,” court documents said.
Judge Sally Duncan ordered Coawette to meet with the HOA Board and go through a complex discovery period before she would make a ruling in the case. Unable to meet the judge’s demands in the time given, Coawette dismissed his own case. Still, the issue is not dead in his mind.
“The purpose of the lawsuit was to discover the ARC’s defense regarding concealing in its declaration the public law amendment, and force compliance with that amendment,” Coawette said. To force compliance with the amendment, as Coawette understands it, he would need to collect signatures from homeowners to hold a special meeting and then would need a large majority of members to approve a change to the community’s CC&Rs.
“The Clinton amendment was a blessing for the whole Ahwatukee community, as well as ARC members,” Coawette said. “Since the federal law no longer requires the recreation facility specifically for the physical and social needs of older persons, it is now available for better use. There is nothing to prevent it from being available to a younger and healthy general Ahwatukee public.”
The ARC HOA has 1,628 lots within the community. Each lot pays for a membership to the recreation center as part of their annual assessments. The ARC also offers a social membership for people outside the community. More than 140 members are strictly social members.
The ARC does not track specific member use but Chad Miesen of Carpenter, Hazelwood, Delgado and Bolen, the HOA’s attorney, said the center averages 8,000 participants per month, including duplicates but not including those who participate in activities such as Quilters, Hobby Shop, Card Players, Coffee Time, library, pickleball and bocceball.
Without mandatory assessments, which make up 90 percent of the ARC’s funds, the center would not be able to operate.
Those who don’t pay their assessments may be forced to pay late charges and interest and as a last resort, legal action, Miesen said. The ARC has an automatic lien under the law for delinquent assessments.
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