A lawsuit filed by a McCormick Ranch resident has revealed that homeowners were cited for not trimming their palm trees when no such specific regulation existed.
More than 200 violation notices were issued over two years to an undisclosed number of homeowners for not cutting down dead palm branches in the central Scottsdale neighborhood. The details were made during proceedings of a lawsuit by Gordon Fitzgerald, a retired homeowner who received one of the notices.
Fitzgerald filed suit in February seeking $2.6 million in damages and alleging fraud, abuse of power, emotional distress and other claims.
In May, a Maricopa County Superior Court judge dismissed claims of abuse of power and judicial precedent. Attorneys ended oral arguments Sept. 5 and Judge Barbara Jarrett is reviewing the case.
"The association believes that the suit has no merit whatsoever and has asked that the court dismiss it," said attorney Mike Farrell, who represents the McCormick Ranch Property Owners’ Association.
Farrell, who declined to comment on the 200 notices and whether a regulation existed when they were issued, said the association has the authority to issue such notices and has presented such evidence to the court.
In court documents, the association maintains Fitzgerald was cited because his palm tree violated a safety regulation, as did 200 other McCormick Ranch palm trees between 2000 and 2001. The fear is that dead palm fronds could fall and hit someone.
Fitzgerald said he was sent a violation notice about his palm trees on Sept. 17, 2001. He said he checked the community’s codes, covenants and restrictions and found no regulation existed.
Seven days later the association’s board of directors passed a regulation requiring palm trees to be "trimmed of dead palm branches and seed pods on an annual basis," Fitzgerald said.
Curtis Ekmark, Arizona president of the Community Associations Institute, said it is not uncommon for property owners to be cited over a regulation that is not specified but is covered by a general safety provision.
"As a general rule, associations have both broad and specific powers," he said. "There is no way a document can address every specific issue."
McCormick Ranch rules and regulations have a general maintenance provision stating no property shall be maintained in such a manner to endanger the health of other residents.
"My palm trees have been in the same condition for 20 years," Fitzgerald said. "If palm trees were just one false violation, how many other types of nonrecorded violations were people cited for that didn’t exist?"
Fitzgerald’s lawsuit seeks $1 million from the association, $500,000 against McCormick Ranch executive director Garth Saager, $250,000 from code enforcement director Rosemary Foster and $100,000 from each of the board’s nine members.
Saager and board members referred all comments to their attorney.
"We’ve got to send a message to POAs that they can’t do this. . . .," Fitzgerald said