An Honorable Cause
Over the past four years, Preserve Plantation has been committed to opposing the Special Area Permit (SAP) and most recently the Brighton application, which sought approval to construct more than 130 townhome residences — primarily on what is now the 11th Fairway. We opposed this project for multiple technical and zoning reasons, specifically relating to the application of City and SAP Code, and most importantly, because we have consistently maintained that the Master Declaration Contract (MDC), drafted in 1978 by Mr. Dale Higer, applies to the golf course — Lot 1 of our subdivision.
In every hearing before the Garden City Planning and Zoning Commission and the Garden City Council, we have lost all but two votes — winning just two votes across five proceedings. Throughout this effort, we have conducted ourselves with dignity and respect for all parties, particularly the agent representing the ownership of what is now called The River Club L.L.B.
On March 29, 2023, during what was described as a settlement meeting at Stoel Rives in Boise — attended by the above-mentioned agent, multiple attorneys, and our representatives — we were told that if we pursued legal action against that agent personally, the entire project would be abandoned. I promised him then, in front of all present, that I would never file such a suit — and we have kept that promise.
On July 4 of the same year, in a meeting with the HOA President and the soon-to-be President, I was asked whether we intended to sue the HOA. I replied that we would never sue our neighbors — and again, we have honored that commitment.
Our sole legal objective has always been to determine whether the MDC applies to the golf course. When we filed for a Declaratory Judgment before a District Judge, we invited the HOA to join us. Had they had done so, the total legal cost — as estimated by our attorneys and confirmed by other independent neighborhood attorneys — would have been between $13,000 and $15,000. This action sought no damages, anticipated little to no discovery, and relied solely on the plain language of the MDC.
Beginning in 2017, the River Club’s agent asserted that the MDC “did not apply and was not operative.” A then-member of the HOA Board, who was also a member of the Planning and Zoning Commission, made a similar claim, stating that in his 15 years on the Board, the MDC had never been used in a land division.
Both statements were false. In all 15 of the 15 land divisions of the original Plantation property, the MDC was used. Every home sold in our neighborhood has been bound by the MDC, with the Title Company providing a copy of it to every new homeowner before occupancy. Additionally, land divisions ceased after 1993, with Fair Oaks being the last carve-out. Since then, Supplemental Amendments to the MDC have been made for two parcels — each time clearly stating that the MDC was operative.
When a court date was set and it became apparent that the MDC applied, the only option left to the River Club’s representatives to avoid having the property encumbered was to amend the contract. Working together, Save Plantation and the HOA Board — effectively acting on behalf of the ownership syndicate — launched an organized political campaign to secure that amendment. Timing was critical, as the November Master Association Meeting would occur after Judge Medema’s expected ruling. Passing the amendment before the ruling was the only way to avoid the realities of contract and property law.
By placing the amendment on the ballot in a special election, the HOA Board effectively confirmed what we had asserted for more than eight years — that the MDC does, in fact, cover the golf course and is both operative and valid. Otherwise, why amend a document deemed “invalid”?
The HOA Board thereby proved our case for us. They ultimately won the amendment vote, needing 66% of the total neighborhood vote and achieving 70%. For us to prevail, we needed 85 “no” votes or non-votes; we secured 73 — just 12 short. Congratulations to the HOA. It was a well-run campaign. I trust the $500,000 “contribution” from the ownership group will be used productively. I found it telling that when explaining that incentive to residents, the HOA’s attorney began her remarks by using the word “bribe.”
Preserve Plantation accomplished its objectives with dignity, respect, and honor — without resorting to public personal attacks. We did not sue the agent representing the ownership, even though — by his own admission in 2023 — such an action would have stopped the project entirely. We did not sue the HOA Board or individual property owners, though it is notable that the River Club’s attorney has now requested discovery from the HOA. This raises the question of whether the River Club may intend to involve the HOA in litigation — and whether that risk was tied to the “incentive.”
And finally, by putting the MDC on the ballot, the HOA Board formally acknowledged that our position was correct from the beginning.
The end of this story has yet to be written. I sincerely hope all of Mr. Gustafson’s visions for “taking the neighborhood to the next level” come to pass, and that this unencumbered property — valued at $300 million by his own attorney’s estimate — is approached with the responsibility and stewardship it demands. Such responsibility can be easily compromised with the lure of borrowing against its value.
Good luck to all.
In the end, we were right — and we were honorable.
— John Morrow Livingston