Poudre Overlook HOA has had an open seat since April of 2021, when Herb Weatherington resigned. He was also an Officer, serving as President.
While the seat could have been filled over the past 7 months, the remaining Board Members chose to leave the seat open, hinting at a lack of interest in the position within the Community. While I haven’t spoken to everyone in the community, I am aware of at least one homeowner who offered to help, but the existing Board members did not take them up on the offer. It’s unknown to me how many others were, effectively, turned away.
I have been actively working to address issues and deficiencies since leaving the Board myself since August of 2019. Compliance with the governing documents and state/federal statues has been an ongoing issue, and the Board I served on had to be removed by an overwhelming vote of 46-20 in a Special Meeting on 8/27/19. We all hoped that this would get us back on track.
Unfortunately, after a tumultuous 3-4 months in 2019, resulting in Matt Clark resigning as President due to an indisputable condition of Hostile Environment Harassment, I asked again that the remaining Board of Directors take up a formal complaint regarding the lack of a Policy for that type of Harassment, and to intervene in ongoing 3rd party issues.
That Board refused to perform CCIOA-required impartial fact-finding which is part of our Policy of Enforcement in our governing documents. I offered solutions that were rejected in January and February of 2020, just as the pandemic was beginning. Additional efforts to resolve the dispute were treated as though an effort to get compliance was “harassment” – a theme since May of 2019.
Having exhausted all other means of resolution, and having all offers to meet with the Board to resolve the dispute rejected, including mediation, the only other option to enforce CCIOA and FHA law is . . . litigation.
What is often misunderstood by many HOA homeowners is that Colorado, like many other states, does not offer any means of Alternative Dispute Resolution that requires an HOA Board of Directors to engage. They can not only ignore or dismiss such complaints, even when written and formal, but they are often guided by HOA Attorneys trained by CAI (Community Association Institute) to label such efforts as “harassment” – and even threaten those homeowners with accusations that the harassment is actually a violation of Colorado Criminal Code.
In fact, it is CAI that actually advocates to legislatures across the United States that state statues are ONLY enforceable by homeowner-initiated litigation. Yet, if a homeowner cannot resolve disputes that involve the Board complying with state or federal laws, or even their own documents through any formal or informal process, the mere mention of a lawsuit makes that homeowner . . . the aggressor.
This is retaliation. And, now states like Nevada, which actually regulates HOAs with an Ombudsman program (state agency). If an HOA Board is not following the law or their own governing documents, homeowners should have some way to report them to some party who brings the HOA back into compliance without putting themselves in the crosshairs.
What I’ve learned since 2019 after spending countless hours with Rep. Titone who sponsored HB-1229 and other Bills to update and revise CCIOA, as well as many other homeowner advocacy groups across the state of Colorado, is that this is a pattern with MANY HOAs in the state, and that the problem isn’t just perennial, but it appears to be growing and intensifying. If it has not happened in any one HOA, it will likely occur in the future because of one primary underlying issue – the laws and governing documents are often intentionally written to be vague or confusing.
And, this leads to an issue touching Poudre Overlook HOA in 2021 as we consider the 2022 budget. When laws or legal documents are written without specifics, or are written as templates awaiting homeowners to fill in the details, disputes arise as to the meaning of words or phrases – and some feel that any and all questions must then create legal expense going to the HOA General Counsel over and over to ask for his/her interpretation of these statutes and documents.
Obviously, this system benefits attorneys financially. It’s no surprise then, that once you do a little digging on the history of CAI, we find that it was essentially created by attorneys for the benefit of attorneys, and more importantly, to indirectly protect their profits. But, more importantly, the underlying problem is that if an HOA actually took the time to remove the vagaries embedded throughout their own governing documents, Board Members would not need to have such expenditures.
On top of this, we have CAMs (Community Area Managers), who are supposed to be professionals who receive credentials from CAI (the only organization in the US that gives such educational credentials), but were also licensed by the State of Colorado until June of 2019 – when the program ended because Gov. Polis vetoed that year’s CCIOA legislation citing the lack of protection of homeowner rights.
While CAMs, in theory, operate under the umbrella of CAI organizations, and their credentials can be taken away if a CAM violates the Code of Conduct, there’s yet another inherent conflict of interest. CAI and CAMICB require that all such complaints first go to the HOA Board – who is often unaware that they are the first stop in the flow chart for disputes involving a CAM. This puts a Board in a position of having to potentially investigate and take action against a CAM that they hired, and if successful, they lose the benefit of their services and the inconvenience of having to find a new one – who is then reluctant to even bid once they know the Board may actually act on the CAI/CAMICB oversight process.
What is most interesting is that this conflict of interest runs in both directions. Because CAMs are, as part of their Code of Conduct, supposed to be both be educated on not only state and federal law (and keep that education updated annually), but they are also supposed to know their client’s governing documents – and then tell their client, the HOA Board, when they are non-compliant or potentially crossing ethical or legal boundaries.
Even CAI, in it’s own documents describing how CAI-credentialed attorneys are often reluctant to bring up “sensitive issues” with their clients because the Board may fire them, recognizes this inherent financial conflict of interest. Yet, somehow, if a homeowner notices the Board or CAM is operating outside boundaries, this entire system imagined by CAI asks the homeowner to risk retaliation by going to these parties and expecting them to act against their own self interest, when such actions often offend egos that never want admit they got anything wrong (even as volunteers), and in some cases asks them to investigate one another when they would rather circle the wagons and treat the homeowner as the aggressor and enemy.
Furthermore, if an HOA had a functional system for handling both enforcement of rules and disputes over interpretations and/or board actions, the HOA General Counsel wouldn’t have to be involved until there was a dispute that the parties could not resolve between themselves. The current HOA Board, like many in Colorado, fall into a trap – where those who do not have a basic education and understanding of HOA law or even their own documents, are convinced that the attorney needs to be consulted, or worse, get directly involved, over minor issues.
This is the underlying problem we are facing at Poudre Overlook as we head into an election for an open seat on the Board of Directors.
The current Board has spent over $5000 in 2021 on legal expenses, and is looking to dip into our reserves to increase the budget to $15,000 for 2022. This amount includes at least $10,000 for a “document revision” process that the current Board has failed to give a single example of why it is urgent or actually necessary – after having VF Law perform a review that states our documents are useable as-is.
Yes, I agree that, per the VF Law review, the documents need specificity to stop the cycle of debates and disputes over interpretation. But, this doesn’t mean there needs to be an overhaul to everything imaginable. The only thing the current Board has repeatedly cited “needs” to be changed is removing the word “declarant” from the documents. But, even a cursory review of other HOAs in Colorado reveals that huge ones like Ken Caryll, which have been around since the 1980s still have the word “declarant” in their documents – and that HOA has over 12,000 members.
The vast majority of what we need to change is in . . . POLICIES. We don’t need to spend $10-15k. What does this look like?
A very simple example is our Rules and Guidelines. If you take the time to read the CCRs, the ACC Committee has the power to “author” (read, amend or write) new Rules and Guidelines. There’s been discussions about things like having chickens, the limit on heights of fences or fence-types, etc.
We don’t need an attorney to make such minor changes. We don’t need some massive overhaul of the documents. Our existing documents not only specify which Committee does this, but also gives a non-exhaustive list of suggested rules that we could choose from. This include both architectural and landscape rules, but also the usage rules related to Article X of the CCRs.
After years of working the legislators, activists, and HOA experts (including attorneys) from all over Colorado for over 2 years, there is a clear movement towards changing and modernizing CCIOA to meet the needs of homeowners in the 21st Century. This involves things like xerascaping, solar panels, and even . . . chickens.
What we have seen from POHOA is a pattern of trying to strictly enforce rules that run against these trends. In 2018, the POHOA Board threatened two homeowners with fines for having signs in their front line that advocated tolerance and acceptance of those who speak other languages or practice other religions. In 2021, a change in Colorado statutes made enforcement of those rules a violation of CCIOA – and the current POHOA Board had to be given notice about an impending deadline because they were unaware of those changes, and reluctant to make them.
What we see in the current efforts to put in place an Anti-Harassment Policy is yet another failure to see trends in HOA Law that would likely make such a policy, and the expense to put it in place, a compliance issue with CCIOA once it adopts changes we are seeing in states like Washington and Nevada.
In order to get there, we need Transparency, Education, and Justice – the three pillars of my campaign to run for this Board. My agenda includes many specifics outlined in the “interest” form that all POHOA homeowners received in November.
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Open in new tab I will be additional articles on this website to explain in more detail the priorities I’ve outlined, along with specific plans about how we get there – without all the unnecessary legal expenses. The purpose is not to cause or drive division or disputes, but rather to give us an experience where we all know what the rules are in plain-english, and that we get there in an open and transparent process that does not attempt to limit any homeowner who wishes to participate – and that the participation not be limited to a 2-minute comment period on a Zoom meeting.
While this may be criticized by defensive existing Board members as being “contrarian”, after both a review of the VF Law recommendations authored by attorneys that are trained by CAI, and by a review of the documents on the CAI website, it is actually recommended that we actually begin to follow CAI’s advice, and start focusing on the credentials they offer – including the credential to ensure our Board members are themselves educated, and that they update themselves annually.
But, the education process, which is required by CCIOA, also includes homeowners and the CAMs we hire. Right now, we have a CAM that is attempting to utilize a single credential to one individual at the company, but we have an account manager who was literally hired the month that we began our relationship with them. Regardless of intentions, there are numerous examples of this CAM having difficulties with a trainee that has not yet been educated themselves, and this has resulted in problems with everything from snow removal to native grass mowing, and even basic enforcement of things like RVs parked in driveways. This lack of education has also led to legal expenses created by CAMs operating without the knowledge or authority of the Board (an ongoing investigation awaiting reply).
We deserve to have a simple smooth-running operation that removes our snow in a timely manner, keeps the common areas looking good with proper management of contractors, and a CAM that is not looking for a 40% raise while assigning a trainee to manage our account who does not have any educational credentials or prior work experience in the industry. We deserve better.
I hope that those considering voting for me consider my agenda worth pursuing. There’s gotta be a better way.