DOG INCIDENT UPDATE: Should Homeowners Pressure The POHOA Board To Take Action?

For many Poudre Overlook Homeowners, rumors have been swirling around the neighborhood by word of mouth about a “Dog Incident”, which has become the term used by the POHOA Board. The incident occurred on September 22, 2022 on Headwater at Paddle Court, and there were several witnesses. While some have submitted written accounts to the Board of Directors, others had declined or postponed – including the parties directly involved.

For a few weeks, the hearsay accounts had conflicting or varying narratives and alleged facts. It was apparent from accounts that it was a traumatizing and chaotic scene, and as is usual, in spite of being at the same place and same time, different people see and remember different things. But, it was also apparent that all accounts could not be 100% accurate, as there were conflicting narratives and alleged facts. The job of the Board, per the governing documents, is to act as an impartial fact-finding body prior to any hearings, meetings, or motions for action.

As a Director, I was first notified about this by email on Saturday September 24 by email from Director Jones calling for a Special Meeting in the upcoming week. I agreed that this was a potential Health and Safety issue that may require timely response (with as few as 72 hours notice, per the new requirements of HB22-1137), but, instead, no meeting was scheduled by Director Ballweber until October 4th (for 10/6). In that interim, I spoke with several homeowners who had hearsay accounts from witnesses, but I did not receive any written accounts from any actual witnesses in advance of the first meeting. I said from the beginning we should get legal counsel, and that advice has been echoed by Larimer County Animal Control – but I was unable to get any response or agreement from the other two Directors prior to my removal.

While the Board met to discuss this topic at the October 6th Meeting, the Board voted unanimously to go into Executive Session citing “privacy” and a potential “criminal matter” as the reason to discuss this behind closed doors (Director Ballweber has not yet produced draft meeting minutes, as far as I am aware). Which, because Director Ballweber chooses to have such meetings outdoors, meant everyone else had to leave Director Clay Jones front porch, and the session was held behind some bushes. Only 3 other homeowners attended the meeting, which only had barely 2 days notice, but they left the premises after making comments about their concerns. I cannot disclose the content of the Executive Session, other than to report that all votes were unanimous and the general topics or motions, and that it was arguably the most professional and efficient meeting of that short-lived Board.

That rationale for privacy was cast to the wind, however, just 2 weeks later, when Directors Ballweber and Jones (without consulting me, as a Director, in advance), chose to make an announcement at the October 20th Meeting – which was ostensibly for the sole purpose of removing me as a Director – that named to dog owner, and identified the homeowner.

Now, HOA Directors have a Duty of Confidentiality that requires them to keep information that has not yet been shared publicly private until there is a deliberate choice to disclose such information. While I was not consulted in advance of Director Jones announcement, because of Director Clay’s announcement, I can now disclose that I agreed by vote that Director Jones should be the party that engaged the parties and witnesses for collection of facts and accounts, and that Director Ballweber, acting as President and Secretary, would then formulate the communications to the community. The change to have Director Jones make any announcement was a complete surprise to me and was not done with a Board vote. Now that we’ve crossed this threshold, I believe we can all engage openly in this discussion.

One of the things that concerned me was that even 2-3 weeks after the incident, the Board of Directors had still not gathered any objective facts. I asked repeatedly whether our President/Secretary had performed the duty of making records requests from the authorities already involved. We heard rumors that there was a “hearing” that was scheduled “in November”. It made it more difficult that I was being subjected to a Petition for Removal concurrently, and requests to the Petitioners to postpone their action until this issue was resolved received a response from Mr. Flanary that indicated he was in a rush to have me removed.

That said, anyone who actually knows me is aware that I take seriously the concept of duties, and given inaction by President and Secretary Ballweber (as part of her Officer duties), I inquired with the Larimer County Animal Control (which is housed at the Humane Society) about what records were available. The Board had already received written demands from homeowners (who were not parties to the original incident) who were seeking to have the CCRs enforced by legally removing all Pit Bulls from the neighborhood.

The questions are: Are such written demands a “legal threat”, and what other options exist for such homeowners if the Board does not comply with their demands?

To my surprise, Larimer County Animal Control reported by phone that the ONLY way you can get copies of any records is to physically drive to their offices to fill out a 1-page form. It’s a 30-minute drive to the fringes of Loveland. Given the circumstances and the growing calls for action, I did the drive and filled out the form on October 18th. I got a call that they were ready for pickup on October 19th, and did the drive again to go pick them up – because they are not allowed to email, mail, or in any other way transmit the records requested. The cost was $5, which I paid for personally. I did not receive reimbursement from the HOA for my time or the expense – which the POHOA Board has now determined is valued at $100/hour in other document requests.

The first document was the citation by Animal Control. While both the Larimer County Sheriffs Department and Animal Control appear to have concurrent jurisdiction, it was Animal Control that wrote a citation. While some information is redacted, we can see that upon contact with Mr. Bigsby, he was deemed Polite/Cooperative immediately after the incident.

The second document is the Court Summons, which indicates the Larimer County Code being enforced.The citation is for alleged violations of Larimer County Codes Article IV Sec. 6-76 and Sec. 6-78 (attached). These are At-Large and Public Nuisance codes that have similarity to our own HOA CCRs. 

We learn from the second document that there is a hearing on Monday November 7, 2022 at 830am. I had been told by an Animal Control Officer that this is a Pre-Trial Conference with the District Attorney, and therefore, the public would not be welcome at the hearing. However, I also inquired with a second Officer who said to contact the Larimer County Clerk, which I did. They said that they didn’t have the hearing on their docket (yet), and that they couldn’t confirm whether the public could participate, or whether any witness accounts or statements would be welcome there. They referred me to the District Attorney, who has not yet responded.

The Code cited, however, only refers to the dog being “at large” and a “nuisance”. Nothing indicates that the hearing, or any action by Larimer County would likely lead to a determination that the subject dog would be determined to be a “dangerous dog”. This is relevant because Colorado has statutes that result in significant actions if a dog is determined to meet the criteria for this designation. You can see more about this statute here: https://codes.findlaw.com/co/title-18-criminal-code/co-rev-st-sect-18-9-204-5.html

One of the hearsay discussions heard among owners was the theory that the County may make this determination, and then the POHOA Board of Directors would take action based upon this designation. This appears quite unlikely given that the citation doesn’t reference CRS 18-9-205-5, or make any mention of the topic.

What does the Larimer County Code discuss?

Some of the hearsay accounts of the incident implied that the dog’s owner did not take responsibility for the incident. Director Jones made several attempts to meet with the owners, and at the time of the Occtober 20th meeting, had made contact but due to circumstances, a meeting had not yet occurred. Their side of the story did not emerge from any of the hearsay or rumors being passed around the neighborhood.

So, our first glimpse into addressing the dog-owner’s responsibility was in the account by Ms. Gayle Young, who was walking the Labrador who was bitten by the other dog. According to Ms. Young, Mr. Bigsby offered to pay the veterinary bills on the day of the incident.

So, it appears that Mr. Bigsby offered to pay the veterinary bills, which, to be frank, isn’t actually the purview of the Association or its Board of Directors. In fact, the Association defended litigation initiated by me about its policy to “never get involved in neighbor to neighbor disputes” under any circumstances, and this is a clear test of that policy. Yet, what we learn from the newly discovered facts is that any rumors about the dog owner failing to take responsibility with the other parties is countered with the Voluntary Written Statement by those parties.

The next facts were regarding the nature and extent of the wounds to the Young’s dog. It is appropriate to make a “trigger warning” as the document request produced photos of the wounds. Please scroll by if this triggers you.

No doubt, these are bite/puncture wounds. And, for those who are wondering about stitches, I’ve been told by some veterinarians that such wounds are generally not sutured (stitches) because that could lead to development or worsening of infections. The report did not include any information from a licensed veterinarian, so we cannot make any conclusive statements about the nature of the wounds, or the reasons for what we see. What we know is that there are several punctures on the back of the neck.

So, given this set of facts, the question on the minds of many POHOA Owners is whether or not the Board of Directors will enforce the CCRs. And, while there are rules about certain dog breeds and what happens when they are vicious, there are some facts that now make action by the Board difficult or complicated.

Here are the CCRs for Poudre Overlook HOA:

On Page 30, we find the relevant section, which is Article X Use Restrictions Paragraph 15 Animals. Of particular importance are paragraphs H, J, and K.

An astute observer will recognize that Paragraphs H & J are in line with the citation from Larimer County. By all accounts, Mr. Bigsby’s dog was “at large” and not leashed. And, as far as “nuisance” is concerned, there is clear evidence of “damage” to the property of the Young’s – the bite(s) to Luna, the Labrador.

The question at hand is whether there is enforcement possible by the POHOA Board under Paragraph K: Vicious Animals. Since a bite has occurred, it meets that criteria. But, some have also brought up the breed of the dog, which is rumored, but not verified, to be a Pit Bull.

There is a problem, however, known to many homeowners in POHOA: One of the former Board Members is known to have “owned” or “kept” two dogs also rumored to be Pit Bulls at his residence for considerable time with no one demanding that they be removed, and no action taken by the POHOA Board. There’s also another complicating factor, in that POHOA attempted to revise the CCRs in 2022, and the draft documents removed all references to enforcement of dog breeds. See the difference in what POHOA was intending to change in its revised documents below (page 16, Section VI Paragraph 6.3(i)):

Therefore, demanding that the POHOA Board enforce the CCRs on the basis of dog breed may run into significant issues of consistency and a fairly good argument that it did not intend to enforce such rules going into the future.

But, this does not negate the elements of the existing CCRs regarding an actual, not a potential, dog bite. It happened, and we have factual evidence not only of the bites (photos), but also an agreement by the dog owner, Mr. Bigsby, that he’s paying the veterinary bills.

The problem is apparent in the Court Summons. Mr. Bigsby and his dog are not registered at an address within the Poudre Overlook HOA subdivision/development. According to the registration, they technically live several miles away. The home that they “kept” the dog is shown by public ownership records is owned by a different person. Therefore, Poudre Overlook HOA does not actually have any legal authority to take action against Mr. Bigsby directly by enforcement of CCRs, particularly without crossing the policy of “never getting involved in neighbor to neighbor disputes” because Mr. Bigsby has never entered into a contractual covenant agreement with POHOA. Kaitlin Heisel is the sole owner of the home where the dog was allegedly “kept” per Larimer County Property Records.

We do not know what Mr. Bigsby’s relationship is with the owner, nor should we have a right to invade their privacy. The fact that we used “privacy” as a reason to discuss this in a Board of Directors Executive Session, but then named both parties at an open meeting (or just preceding it) is questionable judgment. These are public records, but the attempt to address those demanding action, and a stated intention to attend a criminal hearing (and potentially submit evidence to sway the adjudicator) motivates this author to publish them, seeing as the announcement named me as the party who obtained the records while acting in the performance of my duties. It seems only fair that since rumors have been allowed to circulate and influence minds within the HOA that everyone have equal access to the same information.

Now, among those calling for the removal of the subject dog are those within the Petitioners who had me removed, including one of the witnesses. The reason that their relationship to the Petition for Removal is relevant is because the spokesperson for the Removal action, Mr. Walker Flanary, chose to raise as his primary issue the fact that I initiated litigation against the Association.

Mr. Flanary, however, chose to characterize this as “suing your neighbors” after declaring his “low tolerance” for “hypocrisy”.

In reality, when a homeowner sues an association, there is little to no actual cost to the association or any owners, particularly if the suit is settled as it was in my litigation, because of insurance coverage. And, in spite of Director Ballweber’s “ground rules” at the beginning of the above meeting stating that nothing before 5/25/22 could be discussed (the suit began 6/1/20, and was settled 6/17/21), Mr. Flanary was allowed to opine about how absolutely terrible it is that ANY party ever sues the Association. From his perspective, and he’s speaking on behalf of 8 other households that signed the petition, no one should EVER sue the Association (a corporate person) BECAUSE they are “suing their neighbors”.

So, let’s take a look at the options facing the current POHOA Board as it relates to the “dog incident”. I provided analysis to my fellow Board members that included the legal options for enforcement, as well as the potential legal liability of being sued by homeowners if we didn’t enforce the rules as they perceived them to be enforced.

First, as any good attorney will tell you, resolving differences between parties without litigation is always preferential. In fact, even a good Judge will let parties know in advance of proceedings that it’s never too late to reach settlement – even after a trial has begun!

So, given the concerns amplified by weeks of rumors and hearsay being allowed to spread about a potential “dangerous dog”, mitigation of perceived dangers was an intervention between homeowners that the POHOA Board agreed to take action on. Ideas such as putting a muzzle on the alleged dog while it is walked in public, assurances of secured doors and gates, and perhaps even a warning sign on the property are all common-sense ideas that the Board could ask of an owner. There’s just nothing in the CCRs that can make that a power to require such things. It’s an “ask”, and finding agreement with those owners is highly desirable compared to the legal options.

The only enforcement options, however, are the 3 paragraphs in the existing CCRs. If the Board made the determination that any of those three paragraphs were enforceable, the Board would have to give notice and follow the Policy for Covenant Enforcement. That would require the full impartial fact-finding, as well as honoring the subject owners requests for a hearing or even mediation. If the Board demanded that the owner not “keep” the dog on the premises, it could levy a fine. Whether that could be done in 72 hours as a “health and safety” vs. the 30 days cure period required by HB22-1137 is complicated by the Board failing to take action or having a meeting for over 2 weeks.

If, however, after the two 30 day periods and levying of a fine, the matter was still unresolved (and the fine not paid), the Association would then have the right to take legal action, again per HB22-1137. This would include convincing a judge to remove the dog by court order. This is where things can get complicated and expensive. Not only is the dog (and its owner) not technically registered at the address, but Animal Control Officers have reported that removal of a dog from any home is VERY VERY rare.

This raises the question that Mr. Flanary made his underlining point – the COST to ALL homeowners. If the odds of successful removal in the courts is low, and the expense is likely to be quite high (most attorneys take $20-30k as a retainer, with expectations of a contested trial exceeding $70-100k). So, while there are some homeowners who think this is a priority, lobbying the Board without consideration of others’ points of view is at the very least inconsiderate.

On the flipside, however, if the Board does NOT take action for reasons such as the lack of consistency of enforcement, the cost of enforcement, or any other parameter, that also puts those who are demanding such action in the position of – SUING THE ASSOCIATION FOR FAILING TO TAKE ACTIONS THEY THINK THE BOARD SHOULD BE TAKING.

For the members of the Petitioners group to lay at my feet the “gall” of having filed suit on the same grounds (failure to intervene in a case of Hostile Environment Harassment) is the almost literal definition of hypocrisy. You know, the thing Mr. Flanary and his group say they have low tolerance for.

But, in this analysis, if those pressuring the Board to take action were unsatisfied, there is NO OTHER OPTION, PERIOD. They would have to file a private civil law suit against the Association funded by their own money (not everyone in the Association). And, the Association would then have a Board that could make the choice to turn in the lawsuit as an Insurance Claim with American Family Insurance – who would then have to decide if the Board Members took correct actions, which includes the Business Judgement Rule. That rule gives Directors huge leeway in deciding matters like this AS A BUSINESS – which includes weighing the cost of enforcement (not paid for by insurance) vs. the benefits and risks. And, this includes coverage for Board members being ignorant of the law, or even making mistakes.

Given those circumstances, if homeowners pressuring for action chose to file litigation (sue their neighbors, as Mr. Flanary likes to characterize it), they would not only be on their own, but if they failed, they could be liable for the legal fees from the insurance company. And, the cost to POHOA homeowners would be . . . virtually nothing. Particularly if the litigating homeowners can’t prove how they, as 3rd parties, are harmed by such dogs living here, visiting here, or even being walked by others down our streets who don’t live here. Without proving actual damages, simply being afraid is [edit 10/26] UN-likely to be a “claim upon which relief may be granted”, which is the standard hurdle for Motions to Dismiss. Such analysis should be considered carefully by all parties – directly involved, the Board, or not.

So, as the parties and the Board consider their actions, the purpose of laying out these facts and opinions is to make sure all who feel they have an interest check their positions and history for contradictions and consistency. It’s easy to judge me as being in the wrong because my case was dismissed. It’s harder when you find out that the prior Board and/or Directors successfully hid evidence to “win” the case. But, if you are arriving at Mr. Flanary’s position that ANY lawsuit by homeowners against the Association is a bad thing, then please review how this applies to your demands for action about this “dog incident”. Particularly those of you who signed the Petition for my removal.

I hope we make good choices going forward considering, dispassionately, the actual facts we can verify. We should not react emotionally to the hearsay accounts from non-witnesses, or the demands under threat of litigation from homeowners that are selective about which rules are enforced and upon whom.

We live in a neighborhood situated between other subdivisions that do not have HOAs. There are no rules about dog breeds in Larimer County, and there’s going to be Pit Bulls and other breeds walking our streets an in our backlots that we cannot control. Removal of a dog doesn’t stop those breeds from being around us, so it may have been wise when the current breed restrictions were written out of our new draft documents – as they are difficult and EXPENSIVE rules to enforce (and no insurance company will pay for their enforcement).

It is true that this dog bit another dog, and it’s true that many are in fear for themselves and their children, grandchildren, or other pets. But, this can be mitigated. Because, if we choose to try to enforce the rule about a homeowner who has a friend, guest, or partner that has a dog VISITING, that would need to be enforced on ALL homeowners – and we seem to have given a pass to persons who seem to never be held accountable for other things they’ve done. We cannot have rules that only apply to those who are not in the dominant social circles. That’s tyranny of the majority, and it’s literally why most HOAs fail at enforcement activities.

I hope this contributes to healthy discussions as this community considers its options going forward.