The Master Declaration Contract Is Alive and Well

Mr. Will Gustafson is a serious well-educated man. On more than one occasion he has informed The Plantation Community that he has “retained the best real estate attorneys in Idaho and the entire West”. He also has informed us that he has at his disposal “twelve stories of attorneys who work for Lincoln National in Dallas Texas”. Their collective use of words can be precise, accurate and only sometimes complete----when they so desire. Over the past months both he and those representing his interests at Save Plantation or Plantation 1917 have painted a less than an accurate and complete picture about the positions of those described as either objectors, interpleaders, or concerned citizens regarding the applicability of the Master Declaration Contract  (MDC) and the accompanying CC&Rs.

Our side has hired one attorney----Mr. David Leroy. We have several attorneys in our neighborhood who agree with us including a retired Federal Judge who wrote legal pleadings presenting our positions to The Garden City Fathers that are available on the Garden City Web Page. We as objectors, interpleaders, and concerned citizens are comfortable with our legal positions being represented by our own in State Idaho legal team----not legions of attorneys in Dallas in twelve story buildings or hired guns who have been party to complex and destructive real estate deals in Eagle----Avimor, and Bown’s Crossing in Boise----according to neighbors in those communities quoted in numerous articles in the Idaho Statesman and Boise Business News.

I will not comment on Mr. Gustafson’s most recent letter, but I would be happy to post it on our Web page if given permission by Save Plantation. We could then point out point by point areas and assertions that we disagree with. Every land transaction that has occurred since 1977 regarding property that was part of the original Plantation has invoked both explicitly and implicitly the (MDC). There have been over 300 such transactions and changes of property and every new property owner is given a copy of the (MDC) and the CC&Rs by the Title Company involved in the change of property and title pursuant to the transaction. Many of the new property owners had the (MDC) reviewed by their personal attorney. I did on two occasions. My personal attorney was Mr. Dale Higer who wrote the Master Declaration Contract in 1977. As the author of that document, it was his opinion that the golf course was included in the description of the property and even Mr. Gustafson’s attorneys offered a description of the property as being included as part of the property in pleadings before the City Fathers. Other examples of the validity of The (MDC):

In addition to every homeowner transaction, specific transactions over the years have utilized and validated the Master Declaration Contract (MDC). In a Declaration of Restrictive Judgment between HOA and Greg Jackson as owner of the golf course at that time. Section 4.2 indicates that the agreement is binding upon all...heirs, successors... And interestingly, according to this agreement, if the two identified lots are not used for a tee box or golf hole, the golf course owner WOULD be paying assessments on those two lots. Another more recent example:  The Glass Island Supplemental Draft was prepared by Joann Butler attorney for the developer and owner of the property. This document was discovered with a public records request filed by a neighbor and a retired Federal Judge. It clearly states that the Glass Island "sub-division" is covered by the (MDC) so even Mr. Gustafson’s attorney recognized the required relationship with golf course property. Why would that parcel of the golf course be restricted by the covenants but the rest of the course NOT?!

Finally, Supplemental Declarations are recorded documents and available online including the Chipshot Commercial Area (these are the businesses at the corner of Plantation River Drive and State Street—--This was another agreement with Jackson); Savannah Greens (became independent and released from the Master Association); and all the other current sub-associations.  

We have several----many, attorneys who live in our neighborhood who agree with our position. Other attorneys, mostly outside the neighborhood----mostly those hired by the agent acting on behalf of the owners of the River Club disagree, though on several occasions dating back to March of 2023 they have been unwilling to share with us the legal bases for their opinions. One of the best discussions regarding our position can be found in the public record at Garden City Hall (referred to in a previous paragraph). It was again written by a retired Federal Judge who was a neighbor.  It was that single document----over one hundred pages, that changed my mind about the applicability of the (MDC).

The issue of paying dues has nothing to do with the boundaries described by the (MDC) or what property owners are encumbered by it. HOA Board meetings specifically contemplated this issue and addressed it accordingly stating that the paying of dues and the boundaries and enforceability of the (MDC) were two separate issues.

The final half-truth told by whoever is responsible for what goes into Save Plantation and Plantation 1917 is this:

The legal document that was given to the previous HOA by the then attorney for the Board Ms. Bones, completely and irrefutably agreed with our position. The authors who reproduced that document in Plantation 1917 knew that they only presented to the public the first half of her argument—that included the contra position----a good lawyer she. The final opinion was very supportive of our opinion and can be seen on the link below as presented by Mr. Leroy on The Preserve Plantation web page.

A Response to the Opposing Legal Opinion

I am not a lawyer. Neither is Mr. Gustafson. Neither is Col. Kent Brown. There are good lawyers on both sides of this question that have differing points of view. On our Web page we have tried to offer both positions, even offering to publish the articles from the other side----we were never given permission, and they never published our articles even when we asked----nicely.

We will be happy with whatever decision a District Judge renders, and we will abide by it. If the other side is so confident of their legal position, they should be relieved that it has finally come to this stage in the process. If they win, the golf course will be unencumbered in perpetuity and will go up in value. If our side wins, we will have a golf course and open space to give to our children and grandchildren----in perpetuity.

My own feelings are that the other side is very concerned about their own legal position(s), and they are doing everything in their power to keep this issue from coming before a judge, but I am not a lawyer. One nuts and bolts Idaho trial lawyer vs “twelve stories of attorneys in Dallas Texas and the best real estate attorneys in Idaho and the west” is all we need because the argument is simple and straight forward:

DOES THE MASTER DECLARATION CONTRACT APPLY TO THE GOLF COURSE? 

Let the chips fall where they may.

John Livingston