THE DEVELOPMENT AND HISTORY OF SINCUIDADOS
IN THE BEGINNING
Early in 1985, 560 acres of land in northeast Scottsdale, Arizona, was determined to be an ideal spot to develop an upscale, serene, non-golf community of custom homes on 1 plus acre lots. It was situated in the Southwest quadrant of the intersection of Pima and Lone Mountain Roads.
The developer, Dick Johnes, was a friend of a banker whose family owned an Ohio based lending institution with offices in Scottsdale. With funding from his friend, Dick Johnes designed and built the infrastructure for the community, to be called Sincuidados ("without care" or "carefree"). At that time, Pima Road was a two lane road with little traffic, essentially no lights, and no service facilities north of Shea Boulevard.
AWARD WINNER
The design of Sincuidados won an award for the way it blended with the desert. The adobe perimeter wall was, per San Tan Adobe, designed at Dick Johnes’ request, to flow with the land so that it appeared to be, in fact, part of the landscape. The only amenity was a small clubhouse and two tennis courts along with the peace, quiet, and beauty of the desert. The master plan called for 1-plus acre lots with single story, low profile, custom-built homes. One of the first homes constructed was designed by the prominent artist-builder, Bill Tull, a design show house in 1988.
BAD TIMING
The idea and execution were great, but the timing was wrong. Housing construction was down, the area was considered by many to be too far from downtown Scottsdale; lot sales stagnated, and Dick Johnes was forced to let the lending institution take back the property. Now the lending institution found itself in the land ownership and development business and formed an entity called the Sincuidados Development Company (SDC), in order to administer this generally unwanted responsibility.
ALL THE HATS
SDC now wore all of the hats. It was the Declarant, the Board of Directors, the Design Review Committee, and often, the lender for homes built in the community. The governing documents allowed that the Declarant had voting control over all aspects of Sincuidados until the very last lot was sold.
The community was divided into four sections, or phases. Generally, the description was that phase I flowed from the Pima gate north and west to the Lone Mountain gate; phase II, from the Pima gate south and west to the Dixileta entrance; phase III, from the Dixileta gate west to Hayden Road and north to the base of Long Mountain; and phase IV was the Eastern face of Lone Mountain down to the desert and east to the boundary of phase I.
THE WALLACE GIFT
Phase IV was ultimately purchased by H.B. and Jocelyn Wallace, who completed one of the earliest residences in 1987. The Wallace home, cacti shelter, and gardens are situated on a substantial section of land, and the property is held under the protection of a conservation easement, which will maintain it as it is in perpetuity. Phase IV and its walking trails were made available by the generosity of the Wallaces for all homeowners to enjoy.
ROCKING THE BOAT
When the Cherens moved to Sincuidados in June 1989, there were eight homes and only six occupied. Three or four of these were winter only residents. There were no gate hosts; the gates remained open; little maintenance was done; and annual meetings were held, but the homeowners had no voice in the management of the community. David took exception with SDC wearing all hats, but his suggestion that a sever conflict of interests existed met with only a smile from the SDC representatives.
Time passed without success in selling lots, and SDC became more impatient to relieve itself of the responsibility of managing Sincuidados. As well, they had a great deal of money tied up in the community and, for understandable business reasons, wanted out. SDC began looking for developers, even tract home builders, who would purchase the property and relieve them of their obligation. The original intent of custom homes on large lots became unimportant in the new quest by SDC to "unload" this property.
TROUBLE FROM THE SKIES
To further complicate matters, at this time, residents began to see (and hear) a substantial number of small private airplanes performing acrobatics over the area occupied by Sincuidados. David Cheren inquired and was informed by the local FAA authorities that this airspace had long ago been designated as available for this type of conduct. David’s objections and suggestion that a mishap in the air could result in not only death or injury to the pilot, but death or injury to innocent residents living below the airspace – was essentially ignored. This "designation" years prior might have made sense because no one lived in the area at the time, but the situation had changed and the rules, therefore, needed to be changed.
After about 6 months of arguing back and forth, David finally threatened to complain to the authorities in Washington, D.C.. The local FAA personnel capitulated and took the necessary steps to move the airborne playground to a deserted area of the desert.
THE WAR WITH SDC
During the late 80's to mid 90's the SDC allowed various builders to ignore essential principles of Sincuidados’ Design Guidelines, hoping that these homes would sell fast or that one of the builders would be successful enough in Sincuidados so that it would develop the community.
On two occasions, SDC entered into negotiations with home builders who intended to divide the property into small lots and build inexpensive tract homes. David became privy to the identities of each of these builders and on each of these occasions communicated to
them that any change in the original intent or design for this community would result in litigation being filed to force the builder to comply with the CC&R’s and Design Guide-lines, as originally written and as originally represented to the then current homeowners. On each of these occasions, the prospective developers backed away from the project. One wrote a letter telling David that, because of his "interference," he was backing out of the deal – didn’t want the threat of a lawsuit hanging over his head.
A THORN IN THEIR SIDE
Further, David began receiving letters from a law firm representing SDC, accusing him of interfering with their business, causing them to lose money, etc. and threatening him with a lawsuit if he continued his course of conduct. David’s response, essentially, was that SDC was, because it held all the votes, trying for entirely selfish reasons, to unload the property without any consideration for the written, contractual promises made to existing home and lot owners. David Cheren and the SDC attorneys went back and forth, each threatening, for years.
Then the third tract builder came on the scene. This time, before the residents knew they existed, SDC had entered into an agreement, was selling lots to the builder at greatly reduced rates, and was funding the construction of houses. David mailed letters to all home and lot owners, received pledges and money for expected legal fees from both residents and other lot owners. They were understandably concerned because they intended to build in Sincuidados and expected the general plan, the CC&R’s and the Design Guidelines to remain as had been represented to them when they purchased their lots.
STRENGTH IN NUMBERS
By this time there were enough homeowners within the community to constitute a force to be concerned about. David organized a meeting at the clubhouse, during which he explained the history and problems, and obtained additional funds and pledges. He and a few other homeowners met with attorney Fred Davidson, explained the problem, and arranged what ultimately amounted to a number of meetings. During the course of these meetings they were able to convince this last builder to divert from his custom of building "cookie cutter" homes and instead to build large, individually designed homes which would better fit into the community. Only a minimal compromise was reached, but fortunately this builder was not successful in selling his homes – he built six – and, he was forced out of Sincuidados and out of the building business. SDC again, not only had the property to sell, but the six homes they had financed to help sell, as well.
At this time, SDC decided that it might be a better idea to solicit David Cheren as an ally rather than an adversary. David, along with one other homeowner, was invited to attend the Board and Design Review meetings. The homeowners still had no vote and little influence, but SDC wanted to demonstrate the difficulty of managing Sincuidados and per-haps be convinced to be more compassionate to its plight.
A NEW THREAT
A better relationship was established, but it was soon learned that SDC was about to consummate a contract with a developer called DTB (the same company which ultimately developed the commercial enterprise at the northeast corner of Pima and Pinnacle Peak Roads, "La Mirada".)
By this time, much of the property in phases I and II had been sold; H.B. and Jocelyn Wallace had purchased phase IV; and essentially all of phase III and some lots in phases I and II were available for purchase. It should be noted that during all of this time SDC did not pay homeowners dues for any of the lots it owned, nor did it put money into a "reserve" account for future repairs and maintenance, as required by the law in Arizona. As well, a new Declarant, pursuant to the governing documents, was also free from any responsibility to pay homeowners fees on the lots it owned.
The residents were now faced with a situation where they were going to inherit a new Declarant, owning a substantial number of lots, and the old Declarant SDC, still owning a number of lots. Neither of these entities was responsible to pay dues and each could essentially do as it pleased.
PHASE III
It was discovered that DTB intended to convert phase III into 320-plus lots; had purchased 2 lots at the Pima entrance to build model homes; and intended to blade phase III to create a tract for development. DTB chose the Edmunds Company as its builder of choice, allowing that one could simply pur-chase a lot and use his own builder – but Edmunds was available to build, as well. During this general time period, the Edmunds Company was purchased by the Toll Brothers Corporation.
While all of this was going on, SDC tried to conciliate the homeowners by allowing homeowners to become members of the Board of Directors. For 2 years homeowners did serve on the Board, with two of them, Floyd Russell and Fred Mapp serving as President for one year each. Homeowner representatives were, however, a minority, so the community was still effectively run by SDC.
PITCHING IN
David Cheren continued to actively oppose SDC and upon learning of the pendency of their contract with DTB, again sent letters out to all home and lot owners, explaining the situation and soliciting funds to retain an attorney if necessary – to file a lawsuit to ask the Court to intervene and determine the homeowner’s rights.
The money was successfully raised and group of five or six reviewed the reputations of various local attorneys specializing in associations such as ours and determined to employ the law firm of Ekmark & Ekmark, in Scottsdale.
Curtis Ekmark met with David Cheren on a number of occasions and with the group of "homeowner representatives," as they called themselves (David Cheren, Alex Kaminer, Allen Huebner, and Joel Pierson) on a number of occasions during which time Curtis reviewed David’s files and consulted with the group regarding their rights vis a vis this pending transfer of Declarant’s rights.
RESIZING
In late 1997, David began to meet with the attorney and the managing agent for DTB. His position, on behalf of the group, was that they were not going to allow 320-plus homes in phase III, nor were they going to allow models at the Pima gate, and, especially, they were not going to allow tract houses to be built. On many occasions David, and some-times with the homeowner group (not the Board or their members) met with DTB and engaged in heated arguments for about 6 months before they were able to finally reach a tentative agreement to settle the controversy as opposed to pursuing litigation.
RESERVES
At this time the community was in disrepair and the totality of the critically underfunded homeowner reserve held by the Declarant was only $26,000. It should be noted that, to this time, no lot owned by a Declarant paid any homeowner dues. A firm was hired, called Reserve Data Analysis, whose job it was to determine the condition of the common assets of Sincuidados and to determine a reasonable amount of money which should have been saved in the Reserve Account to that date, to be available for maintenance and repairs.
A complex, comprehensive report was produced detailing each element to be considered for the future of Sincuidados and, with that information and documentation, the homeowner group met with SDC and DTB and Edmunds to prepare a settlement agree-ment which would serve to resolve the differences. In about May of 1998, the agreement was signed. In pertinent part, it provides that:
THE REAL HOMEOWNERS ASSOCIATION
Until this time, the Declarant determined which homeowners would be on the Board and certainly David Cheren was not one of the persons selected by them. But, after the settlement agreement was fully executed, a general election was held by Sincuidados homeowners and Bill Berman and David Cheren were selected to represent the homeowners during that first year when the homeowners truly had a meaningful influence on the future of the community. David Cheren was selected to be President and Bill Berman Vice-President of this Board. An open forum meeting was quickly arranged to obtain homeowner input regarding maintenance and remodeling, sorely required with the community. The suggestions of the Reserve Analysis Company were taken into consideration.
Fortunately, the relationship among the four members of the Board proved successful. Agreement was not only obtained for all of the remodeling, repairing, and changes which had been suggested, but the Declarant’s people provided advice and guidance, producing a pleasant and positive result.
Toward the end of their first term as Board members, an increase in the number of homeowner Board members to five, was requested. This was thought to be reasonable so as to allow more homeowners to become familiar with the job of managing the community, in order to establish a strong, competent, and knowledgeable group on the Board.
At the time of the 1999 general election (Homeowners Annual Meeting) the home-owners selected five persons to serve on the Board – but they were still limited to two votes with two votes held by the representatives of the Declarant. The home-owner’s representatives were David Cheren, Allen Huebner, Ray Sullivan, Dick Horne, and Lowell Lueptow. The Declarant’s representatives were Charlie Bowie and Rich Schoonmaker.
In late 1999, the Declarant’s representatives resigned from the Board, since they then had only a few homes left under construction. The Declarant, however, has not yet assigned its rights as Declarant to the Homeowners Association, but is expected to do so some-time during the year 2000.
During the last two years, the Board of Directors, along with various committee members, has accomplish the following:
The accomplishment of these things and the organization of the community has been far from smooth.
A NUMBER OF HEADACHES
It was found that the street light underground wiring was defective and dangerous. The cost of repair, because streets had to be excavated, was prohibitive. Popular vote was to keep the lights inoperative and help preserve our beautiful night skies. Plumbing, sewers, and electric in numerous areas within "old" Sincuidados, were defective. They hadn’t been maintained and required expensive repair and replacement. Adobe manufacturers are now making adobe block which is different in appearance from the adobe originally used on the perimeter wall. However, the original builder of the wall was located. That company continues to made adobe block by the same formula and rebuilt the wall and culverts and continues now to maintain the adobe structures.
One other significant problem was that no plans for the various infrastructure were available. Further, the management company employed by SDC for the community had virtually no records and the files and records they did have were incomplete and disorganized. These incomplete, inadequate records, of course, included all financial records for Sincuidados from its inception.
NOT WHAT IT'S CRACKED UP TO BE
The tennis court project became another problem. The original courts were not play-able and an attempt to repair them was unsuccessful – thus, the decision to replace them. A well respected contractor specializing in tennis courts was employed, who set a foundation of 5 inches of concrete on each of the court areas. Within a short time, the concrete began to crack. The contractor gave assurance that filling the cracks would correct the problem and would guarantee his final product for 1 year. A specialist in the engineering of concrete advised that the repair "might" work and that we should wait through a winter (1999-2000) to determine the fate of the courts.
Although 1/8-inch cracks were normally to be expected, David Cheren negotiated a written agreement with the contractor whereby the guarantee was extended to 3 years; it was insured by an insurance company with the premium prepaid by the contractor; and the policy names the Sincuidados Association as beneficiary. Further, the allowable width of any crack was reduced from 1/8 to 1/16 inch. The guarantee allows that the entirety of both courts will be rebuilt per the original contract specifications if, within the 3-year period, the courts fail to meet the guarantee standards. As a bonus, the contractor added a cushioned surface (originally proposed at an extra cost of $11,000) at no cost to the Association.
A NEW BEGINNING
New contracts were negotiated with a management company, maintenance personnel, a landscape company, as well as companies to clean and exterminate the club and gate houses.
All of the above referenced repairs having been accomplished, the Board is, at the present time, contemplating whether the landscaping and lighting at each of the three gate entrances should be enhanced and the upgrading of the gates is being investigated.
The Board, in contemplation of the transition of rights from the Declarant to the Home-owners Association, is meeting with the attorney representing Sincuidados, in order to obtain guidance and suggestions for profes-sional investigative help in determining whether there are deficiencies or defects within the community which can arguably be the Declarant’s responsibility to repair prior to this transition.
At the appropriate time, the Board, armed with the results of its investigation, will meet with the Declarant to, if appropriate and necessary, attempt to reach agreement regarding repair of defects or correction of deficiencies. When this aspect of the development of Sincuidados is completed, we can truly be satisfied that the award winning design of the community envisioned by Dick Johnes some 15 years ago, has become a reality.
AND SO --
We live in an exclusive community, quietly nestled into the Sonoran desert, generally described as "the most beautiful desert in the world." To all who have helped bring about this wonderful result, thank you! To more recent owners, welcome!
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