November 7, 2022
This morning in Courtroom 1A at the Larimer County Justice Center, the District Attorney dismissed both citations against Mr. Bigsby without conditions. Mr. Bigsby was represented by an attorney who met behind closed doors with the District Attorney for less than 10 minutes. No one representing Poudre Overlook HOA or the parties whose dog received the bite wounds were present.
The process, for those unfamiliar, is a rather mundane magistrate-type process. There were a handful of cases scheduled for 830am, and each party was advised to leave the actual courtroom for the Court 1A waiting area (more akin to the DMV with rows of plastic seats) as their names were called. This all occurred by 815am, a bit ahead of schedule.
The two DA’s were in adjacent meeting room/offices, and then called each Defendant one by one into the room. The DA generally faced the room with the door open, and because it was quiet, their voices carried into the larger seating area.
Mr. Bigsby was called into the office at about 825am, and the DA explained that the law being applied was County Code, not State Law or Statute. He explained that the first citation for At Large Animal was a Class 2 Misdemeanor, and that the Nuisance citation was a petty offense. While I could not hear Mr. Bigsby clearly, he stated something that elicited the response from the DA that it was the Animal Control Officer that had discretion in writing the citation.
Mr. Bigsby’s attorney arrived at about 830am, and he promptly shut the door. At 841am, the door reopened, with the District Attorney speaking mid-sentance “a note to 1A that the case is being dismissed in entirety”. Mr. Bigsby and his attorney waited in the seating area an additional 20 minutes before being called by the clerk behind a window, where it was confirmed that the case was being “fully” dismissed.
This follows the prediction by the Animal Control Officers who responded to the open records request who said it was unlikely that there would be much if any action taken by the court, particularly if this was a first offense. The outcome invites the inference that no prior pattern of behavior preceded this citation for Mr. Bigsby or this dog, but no information was given by Animal Control or the Court to confirm or deny this as fact.
The case being dismissed undermines the wait-and-see strategy of the POHOA Board in hopes that actions by Larimer County might either address the concerns of homeowners directly, or provide basis for action in enforcing the POHOA governing documents. This, in turn, undermines any premise that supposes the matter is “health and safety”, which per HB22-1137 would create quicker timelines for compliance on any enforcement action.
Mr. Flanary, who appears to be directing Director Ballweber, has called all dismissed legal cases “frivolous”. In the majority of meetings since the 6/17/2021 Settlement Agreement on litigation against POHOA and Former Director Hammond, Mr. Flanary has made a point of labeling that litigation as “frivolous”, in spite of the Judge acknowledging that the case was brought in “good faith”.
Mr. Flanary, however, runs the risk of reinforcing concerns about his double-standards and hypocrisy if members of his Poudre Overlook Advocates (POA) continue to call for Mr. Bigsby’s dog to be removed by the POHOA Board on the basis of enforcement of POHOA rules that are similar to the Larimer County Code (At Large Dogs and Nuisance). If the District Attorney declined to enforce County Code based upon the facts, why should POHOA act differently?
The only remaining difference between County Code and POHOA covenants is the section regarding Viscous Dogs and restrictions on certain breeds. Larimer County had the opportunity to consider the same evidence and dismissed. POHOA has not independently gathered any facts beyond what the County had in hand, and waived any right or opportunity to influence the District Attorney by failing to communicate or be present for today’s hearing.
Given the issues with inconsistent enforcement, allowing a prominent former Board Member to “keep” two alleged Pit Bulls at their residence for significant periods of time, enforcement of the breed clauses would likely be challenged as selectively enforced.
Since Mr. Bigsby attending today’s hearing represented by an attorney, apparently contesting the citation, it is reasonable to believe that any POHOA action on similar grounds may also be contested. POHOA has not sought paid legal advice on this matter prior to at least 10/20/22, and has not sought any legal advice whatsoever since this Board was elected on 5/25/22. Any new hiring would be a decision necessary at an open meeting, or by properly following Action Without A Meeting (AWAM) documentation requirements.
And, if enforcement is contested by the dog owner/keeper, that leads to the issue discussed in the prior article on this “dog incident” – legal expenses. If the Board pursues enforcement through the courts, it would likely cost everyone in the association significant legal fees, as they would unlikely be covered by insurance. While they may be recoverable if POHOA wins the case, given the dismissal by the Larimer County DA, presumption of a win in court and awarding of legal fees is not by any means a safe bet.
But, if the POHOA Board does not take action, then homeowners pushing for enforcement would then have to sue the Association – which, again, Mr. Flanary has cast as the Cardinal Sin of HOA Homeowners, as they would be “suing their neighbors”, in his mind, at least. That type of lawsuit would be privately funded by the homeowners who bring it, again with the same risks of getting their legal fees back. But, the POHOA Board, however, would likely be defended by American Family Insurance, which would likely hire Sutton Booker, once again.
Given the high legal expenses and uncertainties of both enforcement and non-enforcement, combined with the likelihood of any effort being contested, the POHOA Board would be wise to ensure that they are representing the actual best interests of the entire community, and not just those pushing for action, or even the family whose dog, Luna, was bitten. The best course of action, as mentioned in the prior article, is likely a settlement agreement (out of court) with the homeowners who own or are keeping the dog in this neighborhood. And, it would not surprise me if no action is taken at all – which would align with how the Larimer County District Attorneys have acted.
As for whether or not the Surprise Board Meeting on Tuesday November 8 (at NOON, no less), which still has no agenda posted with less than 18 hours until the meeting, discusses this topic, attempts to pull it into Executive Session, or simply avoids it altogether, it is difficult to predict with a non-transparent board that doesn’t respond to questions or emails on virtually any subject. It is hard to imagine how the meeting avoids the topic, whether Director Ballweber puts it on the agenda or not. Homeowners want to know what is going on, and besides the announcement on 10/20, the POHOA Board has not communicated much at all after nearly 6 weeks since the incident.
“If you choose not to decide, you still have made a choice!”
– Rush