The Other Side of the Story
Today the Plantation Homeowners received via “e-mail alert” from The Plantation Homeowners Association, a correspondence outlining the course of action(s) The HOA is contemplating regarding the Declaratory Relief Motion (DRM) that has been filed but not served.
First of all, congratulations are in order to the new board members Don Coberly, Bill Conners, and Virginia Morris.
Preserve Plantation is not a party to the lawsuit mentioned in the “alert” but several of our members are named interpleaders. Several of the interpleaders are not part of Preserve Plantation, so the request to associated the Declarative Judgement Action is filed on behalf of the signers. There have been several other homeowners ask to sign on and they will be allowed to do so as the case moves on. One interpleader has asked to be removed from the document. Such requests will always be respected and honored.
For over several years and in fact dating back to October 2017 the issue of the Master Declaration Contract (MDC) had been before 3 HOA Boards and The City Fathers. The agent acting on behalf of the ownership group of the golf course property has proceeded under the assumption that the (MDC) does not apply to the golf course. The plain reading of the contract, review of the contract by attorneys for various property owners in the past including the writer of the contract, and respected attorneys within and without the neighborhood have provided legal foundations for the position that we take regarding the contract----IT DOES APPLY TO THE GOLF COURSE.
Attorneys acting on behalf of the agent for the ownership group have stated that they believe the contract does not apply, but they have not been forthcoming regarding their legal arguments as to why it does not apply. Our attorneys believe the argument of laches or estoppel is easily refuted
Recent Idaho Court ruling have signaled that HOA’s, individual homeowners, and those owning property covered by The (MDC) all have standing before the Courts when the issue of contract is involved.
We feel along with recent Court rulings that this is an issue of upholding a contract between the HOA and the individual property owners. In fact, as alluded to in our brief below, each individual owner has a unique individual interest in seeing that the contract be upheld in order to protect their own individual property rights and values.
It may be an interesting exercise to take a poll to guide the HOA Board about the efficacy or not of executing the (DRM), but that does not absolve the Board from their duty to uphold the contract. It is not a matter of a vote; it is the responsibility of executing a fiduciary duty. There are ways of changing the terms and duties that parties have to each other regarding the (MDC), but a poll is not part of the remedy process.
A couple points need to be raised outside the information and implied misinformation in the HOA communication.
If the agent (TA) acting on behalf of the ownership group is so confident of their stated position, they should be grateful with the (DRM). Should they prevail, the property would then be unencumbered and its value increased, whether used for development or to leverage future capital for other outside developments under the purview of the agent acting on behalf of ownership.
The HOA Board should welcome such a request for the (DRM) as the legal work has already been done and the expense up until filings have already been accrued.
We would welcome being enjoined in the action, but the HOA withdrawing from the action won’t change our position in any way.
Since November of 2017 when I first met The Agent (TA), I have had but one question that has remained unanswered. “Does the (MDC) apply to the golf course” There have been countless other members of the Plantation Community----today at least 61, that also ask the same question. We have standing. We have a legitimate question that only a Judge and a Court can now decide. There have been excellent legal opinions given in favor of both positions----by lawyers and non-lawyers alike.
I come from a family of developers. I very much respect the “right of property”. I was one of the first people to support Mr. Gustafson in 2017, when many other people did not support him. At the time, the promise given was that development would only be along State Street, and it would not metastasize into the neighborhood----like the proposed development on the 11th hole.
The HOA Board has a fiduciary duty to exercise the (MDC) on behalf of the property owners----affected and not affected by the development. It is also important to note that the umbrella of The (MDC) and its’ CC&Rs is a unique and separate contract between the HOA and each individual homeowner. It is not a contract defining communal obligations and therefore subject to a majority vote of the community. When the contract is broken, it is broken between the parities----the individual property owner and the HOA. A weak and impotent HOA only leads to the devaluation of property and quality of life. Look no further than Eagle Hills Golf course if you want to see “golf course blight. Look only to The River Birch Golf Community if you want to see what a strong HOA Board can do to protect property owners.
We need a strong HOA that is willing to step up and perform their fiduciary duties, not one that puts its’ fingers in the air to see what the prevailing political winds are.
Following this post, we will post our motion to be interpled in the action. Please read the words. We are not suing for money or for any form of retribution. We will continue the action no matter the results of a canvass or poll. We only ask that the question be answered: DOES THE MASTER DECLARATION APPLY TO THE GOLF COURSE?
John Livingston