DECODED AGENDA: Beneath The Surface Of A Mundane Meeting

The Poudre Overlook HOA Meeting on January 10, 2024 was, on the surface, a short mundane meeting lacking the tension and fireworks of some previous meetings. Perhaps it was one homeowner bringing her teenage sons to attend so they could earn a Boy Scout merit badge, or perhaps it was the fact that literally only two homes outside of those on the Board were in attendance. While President Ballweber blamed me in HOA Task Force Testimony for the lack of attendance, perhaps it is the fact that the combination of only giving homeowner’s 2 days notice and blocking electronic access via Zoom that makes driving to the other side of town for a 30-minute meeting unattractive.

A quick summary of what was covered:

WATER EASEMENT

I’m actually grateful that this topic finally made the agenda. I originally raised the issue of the condition of our Stormwater Drainage Facilities at the 7/20/23 PID#30 meeting at Buck Hammond’s house. This led to the Hot Potato issue of who is actually responsible for the concrete drainage that goes around the perimeter of Poudre Overlook HOA. While the PID is responsible for everything that drains water from the streets and under the streets, they disclaim responsibility for the concrete drainage channel that most homeowners who go back there use as a trail. This also includes the culverts that divert the water underneath some roadways – for which there isn’t clear delineation between POHOA and PID responsibility.

While I had hoped the POHOA Board would address the fact that we now have a section that is damaged, and the fact that we have no budget or reserves for repairs or replacement, they apparently took interest in the fact that for 3 straight years, we have seen a massive amount of water draining from a broken pipe along Overland down the South side of the neighborhood, under the street through a culvert, and across the “dry pond” before exiting into the irrigation ditch to the North of POHOA.

I wrote about this in these articles:

HOT POTATO: PID Claims POHOA Responsible For Outlot Concrete Drainage

FINANCIAL TIME BOMB: POHOA Ignores Stormwater Drainage Infrastructure for Decades

The Board opened the discussion with a claim that Buck Hammond had done some work that indicated that there was an easement owned by ELCO across the POHOA neighborhood. New Director, Jeff Ballweber, spouse of President Lora Ballweber, went into one of the two file boxes of paper records for the Association, and found the original plat documentation. ELCO had an easement prior to the neighborhood being built, and the Board began to speculate about it being the owner of the broken pipe.

I had met with Rusty from Larimer County last September in a face-to-face meeting after emails with Larimer County Engineering indicated PID#30 and the County would refuse to take any responsibility for the situation. Yet, for some reason, Buck Hammond, President of the PID#30 was put in charge of investigating the source, and he told Larimer County he called ELCO who did not return his call.

I found that odd, and called ELCO myself. My wife and I had hosted an ELCO meeting in 2008 at our home when they were considering putting a 5-foot water main pipe down that same easement on the South side of POHOA. They eventually decided to leave the existing 2-foot pipe in place, and put the new one in an easement running to the South of Dean Acres and Solar Ridge. So, I called and was immediately connected with Randy – who gave me the scoop. They don’t use PVC pipes, so the broken PVC pipe could not possibly be theirs.

I wrote to Larimer County Engineering, PID#30, and the POHOA Board on September 28, 2023 once I got a full brief from Randy at ELCO:

Now, President Ballweber made a HUGE point with the HOA Task Force on 1/2/24 that I had sent long emails, and somehow the length was persecution of the POHOA Board. But, in fact, one of the longest threads of 2023 was about this issue. We have not been maintaining the drainage for decades, which had become clogged and overgrown, and the continuous water was now degrading the concrete – and we have no budget for it or reserves to replace it after the concrete does what concrete does – it cracks and gets overgrown (every time)!

I asked for it to be added to the agenda of the September and November POHOA Regular Board Meetings, and the December Annual Homeowner’s Meeting. The POHOA Board did not respond AT ALL to any of these emails.

So, I had thought that this was finally on the agenda, and perhaps we’d finally get answers. Instead, we were back at Buck’s theory that ELCO was to blame. And, we already knew they weren’t back in September. Yet, Jeff Ballweber had come to the meeting with this plat map, which the Board got up and gathered around the meeting table to look at from all sides.

When I was finally called on to speak (and remember, there’s only my wife and I, Gloria Jones -spouse of Director Clay Jones, and one other homeowner with her two teenagers in the room), I remind them that I had already done this legwork. I told them that Randy said there was absolutely no way it was ELCO’s pipe, and that Rusty at Larimer County Engineering told me that they have no record of who owns such water pipes UNLESS they go underneath the road.

That led to some speculation by Director Clay Jones that the “only” possible source of the water was an irrigation ditch that is West of Overland by about 1/2 mile. While I didn’t make the comment at the meeting, I recall from my meeting with Rusty at Larimer County Engineering that there are all sorts of undocumented pipes throughout Larimer County put down by farmers decades ago, and this leads to all sorts of water mysteries – some of which never get fully resolved.

But, again, I was grateful that they were finally taking this up, so I simply pointed out that we’ve already exhausted all efforts to find the owner and source of this water by looking at maps and documentation. We were down to networking to find the owner, which meant literally talking to people in the area – and I suggested the property owner who has the cattle on the other side of Overland was a good start since he has family that is a significant investor in water-rights ownership in the county.

I think they kinda sorta agreed. The vote was to have Directors Jones and Ballweber “investigate”. And, we at least had Director Flanary indicate that we intend to let whomever is running their water over our property know that they can’t do that. The Board seems to be indicating that there is no record of any surface-easement for water in our records, which was the question I was raising last summer.

Stay tuned, as we still have to deal with damaged sections and the lack of reserves for replacing the infrastructure when it, like our roads and sidewalks, eventually needs to be replaced. Again, this is a HUGE infrastructure cost, and we are likely heading for surprise “special assessments” sometime in the future.

LANDSCAPE COMMITTEE

Well, after the POHOA Board created and disbanded a Special Architectural Committee between September and November of 2023 due to “lack of interest”, the POHOA Board had decided to resurrect the Landscaping Committee. This committee was originally created in 2017, but was disbanded for the mostpart in 2019 after the project to convert the front area to a “natural area”. While Gloria Jones effectively continued a committee-of-one for a couple years, the work of the committee was essentially merged into the Board when she rejoined the POHOA Board in 2021.

When asked what the purpose of the committee was, President Ballweber said it would be like the old committee. That led to some questions, because the old committee had a budget, could contact contractors directly, and held meetings without notice to homeowners who were only invited to meetings if they raised concerns about specific issues (like the conversion to a natural area).

While there was a typed Charter that was passed between Board Members, a request to see the document was denied at the meeting by President Ballweber. She promised to post it on the website, but as of this writing, a request to the Board for comments before writing this article received no response after more than 2 weeks.

The committee will provide notice of its meetings by passively posting on the Frontsteps website calendar. It is unclear if there will be a written agenda. President Ballweber says that homeowners will be allowed to attend, but will not be allowed to participate by asking questions. They will have to sit there silently and observe. You know, like neighbors in a small 87-home community where everything is so up tight, that meetings are run so strictly that you’ll get chided for speaking beyond your allotted 2 minutes.

The Landscaping Committee will not have the ability to authorize any work. Any decisions they make will be recommendations to the Board, who will then have the Treasurer contact contractors. When asked if the Treasurer is still the sole point of contact for contractors, President Ballweber confirmed this was the case.

The committee will not have any budget either. So, any recommendations made may or may not include work on estimating costs. Without the ability to directly contact contractors for bids, it is difficult to understand what this committee actually does besides give wish lists. The inability to have communications with contractors, even potential contractors, is a limitation that likely makes the committee less effective than it could be.

As for membership, well, once again, we are seeing the odd juxtaposition of the Board claiming that they can’t get anyone to volunteer with absolute tight controls on who joins. President Ballweber did acknowledge that I had requested membership in writing prior to the meeting. But, of course, she couldn’t let me know right then and there if my request was accepted. I’ll bet anyone a nickel they find an excuse to exclude me. Leave your bets in the comments.

My prediction: Once again, Gloria Jones will be in charge of this committee, and she will only accept those on the committee at her discretion. I’ll post in the future her threat in 2019 to disband the committee if I remained on it in September of that year.

ARCHITECTURAL CONTROL COMMITTEE

We finally get to know who is on this secret mysterious committee that never has an open meeting, does not post any agenda, and has not produced meeting minutes since May of 2019.

The members are:

• Bill Tuminello
• Jeannie Babbit
• Walker Flanary*
• Clay Jones*
• Lora Ballweber* (Chair, Interim)

The makeup of this committee is, once again, dominated by the POHOA Board holding a majority of seats. It is therefore a fair observation to say that the ACC is basically controlled by the Board, who has a pattern of seating its own members on every single committee. We have not had a committee that is independent of the Board since at least 2017.

As for what the committee does, and when or where it does it, there’s no further information. All we get to know is that it exists, we finally get to know who is on it, and, of course, membership is hand-picked. For a Board that claims there’s a struggle to find volunteers, the rejection of certain homeowners (and I’m not the only one being rejected) is quite a contradiction to keep avoiding a full explanation.

SHINGLE RECALL

In a reversal of the approach in 2018, when every home in POHOA had to have its roof replaced due to a hail storm, the POHOA Board announced that due to a recall by Malarkey Products, several homes will likely need to have their roof shingles replaced because of manufacturer defects. Oddly, these occurred on the premium products with a longer warranty (40-50 years). This time, instead of a blanket “just follow the rules” email, they are telling homeowners who need to have this done that they need to submit any samples of shingles that will vary from the POHOA Architectural Guidelines.

When asked if the Guidelines still say “or similar”, Director Flanary, who was at the center of the controversy in 2018 and led the effort to fine one homeowner $5000 and force them to replace their roof, he dodged the question and simply repeated what had already been said. You see, in 2018, in attempting to justify his recommended fine, he and former ACC Chair Irve Denenberg had claimed that their committees had changed the guidelines to eliminate the wording “or similar”, making it a requirement to use the specific manufacturer/color mentioned.

While it was not raised at the meeting, I do wonder whether our absolute requirement leading to homeowners winding up with defective product could lead to any claims against the HOA. While I am pretty sure our HOA insurance would cover such claims, it sure does make the issue of taking a hard-line approach on requiring specific manufacturers or products a reasonable topic for review by the ACC.

You see, the ACC has authority per the CCRs to “author” changes to the Guidelines. And, because the guidelines were basically written by the Developer to ensure that they could buy the same roof shingles for all homes during their buildout, the value of having identical roofs over the liability caused by such restrictive requirements is worth reviewing – since we are apparently rewriting our policies one by one in two consecutive years.

LARIMER COUNTY LEGISLATIVE CONTACTS

Now, this item was the most mysterious of all the agenda items. As an advocate for HOA Homeowner Rights as a stakeholder and activist in the Colorado Legislature, I found the choice of words confusing. Larimer County doesn’t have a legislature, for those unfamiliar with how our local government works.

So, what was this about?

The Board chose to be coy in responses to questions. When I asked what the purpose of creating a “legislative contact”, President Ballweber responded that it was to create a “contact for the purpose of commenting on legislation”. So, I mentioned that Larimer County only has Commissioners, and that they only vote on changes to our County Code – not really legislation in the full sense of that term.

They dodged the question. In my experience, when they dodge like this, it means that the true purpose is intended to be hidden. Except this time, they already showed their hand.

As has been mentioned, Lora Ballweber spoke at the 1/2/24 HOA Homeowners Rights Task Force meeting, and had stated that she had been authorized by the POHOA Board to speak for the Board. Which, if you understand HOA Governance, means she is then speaking for the entire Association, which is a Non-Profit Corporation.

Recognizing that no such authorization could occur without a vote, and noting that it had never been previously on the agenda of any POHOA Meeting, I asked the POHOA Board to post on the Frontsteps website the signed AWAM as they had done multiple times in 2023 without necessitating a document request. Surprisingly, they actually posted it on 1/9/24 without fighting with me about why they should not.

I went over this action by the POHOA Board with DORA and Members of the HOA Task Force who were universally surprised to see any HOA Board take such an action. Literally, people with decades of experience have never once seen any of the 10 to 12 thousand Colorado HOAs (we don’t actually know how many exist because about 20-30% fail to register with the State of Colorado in spite of legal requirements) ever do this.

Now, this isn’t to say that HOA Board Members are forbidden from testimony at Committee Meetings at the state legislature when HOA Bills are presented. We see that all the time. But, usually, these are individuals testifying as to their personal experience, and they mention that they are members of an HOA Board as a matter of explaining their credentials and standing as a stakeholder in the matter. We never see an HOA Board actually give pre-written testimony that they’ve voted on in advance.

One expert told me it was “shocking” and “raised questions”.

Well, then the fact that the day after the disclosure, the POHOA Board then voted on having a “legislative contact” for “Larimer County”, when no such legislative body exists, is a curious way to take an official legal action by an HOA Association. The POHOA Board voted 3-0 to make Jeff Ballweber this “legislative contact”.

While President Lora Ballweber did not vote, she did make a comment in support of his nomination of her husband: “He’s got an INSANE amount of lobbying experience!”

I’m not sure what quantifies as an “insane amount”, but suffice it to say, for POHOA to officially use AWAM to write up testimony that essentially targets one specific homeowner (me), and to then in an official capacity make lobbying a primary activity of the Association is questionable. In fact, it may undermine our tax exempt status.

You see, an HOA Association is a Non-Profit Corporation organized under 501(c)(4) or 501(c)(7), usually. And, in order to maintain that tax exempt status, there may be restrictions on lobbying. But, I’m sure someone with an “insane” amount of lobbying experience already knows this.

When I did research on the topic, I found guidance that said that you have to ensure that lobbying is not a “primary” activity of the Association. Well, having official AWAM actions and appointing the spouse of the President to use his “insane” amount of experience to lobby might cross that boundary.

And, why does POHOA need this anyways?

There is already an organization called Community Associations Institute (CAI) that already represents the positions that Lora spoke about. So, why does a Board need to officially create actions to get involved in this and risk the tax exempt status?

This subject is a rabbit hole into a very confusing world of laws and regulations on 501(c)(4) and 501(c)(7) organizations, which are typically the type that an HOA would fall into. From there, we learn that there are all sorts of warnings and concerns. One article on the subject linked by the IRS is 106-page long.

“Seeking legislation germane to the organization’s programs is a permissible means of attaining social welfare purposes.  Thus, a section 501(c)(4) social welfare organization may further its exempt purposes through lobbying as its sole or primary activity without jeopardizing its exempt status. An organization that has lost its section 501(c)(3) status due to substantial attempts to influence legislation may not thereafter qualify as a section 501(c)(4) organization.  In addition, a section 501(c)(4) organization that engages in lobbying may be required to either provide notice to its members regarding the percentage of dues paid that are applicable to lobbying activities or pay a proxy tax.  For more information, see Lobbying IssuesPDF.”

I think that for the time being, these actions raise questions, and that these need to be researched thoughtfully before taking action. It just doesn’t seem like the Board considered this, and instead decided to attack me personally with testimony because I have been an activist for homeowner’s rights – and had success in passing laws they do not wish to comply with.

How is that in the interest of this community?

And, has this Board let the community know what it is doing?

Well, going back to the agenda item, which is misleading, and the coy manner in which someone has been assigned to represent us in the state legislature, I think this warrants further examination in the future.