What next for HOAs?
Children in the 'hoods?
By Laurie Roberts
Article Courtesy of Arizona Republic
February 1, 2004

Suddenly, Sven Barr is no longer an outlaw. No longer an outcast. No longer a pariah in that little slice of homeowner heaven that is McDowell Mountain Ranch.

I'd ask him how it feels to be legit at long last but I doubt he'd have much to say.

Sven is only 1½ years old.

He spends three days a week at the home of Kathy Costales. He's one of five tots who on any given day can be found at her house in this plush north Scottsdale neighborhood.

Which, until now, has made him strictly infanta non grata.

This week, however, a Superior Court judge ruled that Sven and his baby buddies, Madison and Hannah and the rest, may continue to go to their baby-sitter in McDowell Mountain Ranch. As for all the other infant outlaws out there, they're strictly on their own.

Contrary to popular belief - and common sense - it's illegal to baby-sit other people's kids in neighborhoods that are governed by homeowners associations. Or at least, in most of them. But that'll change if Rep. Michele Reagan has anything to say about it.

Kathy Costales has been watching tots for 16 years. In 2001, she moved to McDowell Mountain Ranch after being told by the property manager that in-home child care was OK. 

It wasn't. According to Article IV, Section 43, paragraph of the rules that govern the residents of McDowell Mountain Ranch, you can't baby-sit in your house.

Or give piano lessons or tutor kids. According to the rules, MMR residents can't have any business that is detectable by sight, sound or smell or one that brings people onto the property.

In March 2002, Costales got a letter from the HOA telling her to cease and desist her unauthorized activity. Instead, she mounted a petition drive to put the matter to a community vote. More than two-thirds of the residents who voted, a hefty 68 percent, agreed that in-home day care should be allowed. 

Unfortunately for Sven and company, democracy doesn't rule in McDowell Mountain Ranch or in places like it. In most HOAs, it takes 90 percent to change the rules.

So Costales sued and this week Judge Ruth Hilliard ruled that she can continue baby-sitting. Not because the rules allow it - they don't. But because she relied on the property management company's word that it was OK.

"It's a community service," said a relieved Costales. "In today's time, people want their children in a homelike setting."

The problem, though, is the homelike settings don't seem to want the children.

"I don't think anybody is against baby-sitting," Ron Roder, McDowell Mountain Ranch HOA president, told me. "What I think is if someone is running a day care operation in their home and it's every day, Monday through Friday, all year long with maybe four or five children out in the yard for a continuous period of time, children can be noisy . . . "

Though there was only one complaint about Costales, from a retiree four or five houses away who noticed the extra few cars on the street, Roder said the HOA board was obligated to enforce the rules.

Well, maybe not much longer.

Scottsdale Rep. Reagan this week introduced a bill to prevent HOAs from banning baby-sitters, just as two years ago the Legislature prevented them from banning flagpoles.

"There are a lot of people doing this and they're violating the law," she said. 

House Bill 2569 would exempt baby-sitters with five or fewer children from the HOA-imposed ban on residential businesses. That's not likely to please the HOA lobby that generally gets its way at the Capitol.

Attorney Scott Carpenter, who represents 1,000 HOAs, said he hasn't seen the bill and so doesn't have an opinion. But he thinks it may be better to lower the 90 percent threshold for changing the rules, allowing each neighborhood to decide whether it wanted to admit the tykes of working parents. 

"There is a point," he said, "where baby-sitting becomes a day care business and zoning would never allow Kindercare to open up shop in some gated community somewhere. I mean, that's obvious."

Heaven forbid that we would allow little children in our neighborhoods.