KERFUFFLE POLICY UPDATE: David Graf Confirms Need for Neighbor-to-Neighbor Disputes Policy

On January 3, 2023, Attorney David Graf of Moeller Graf posted a video on LinkedIn describing the obligations HOAs, as housing providers, have to intervene in neighbor-to-neighbor disputes due to changes to FHA Law that went into effect in 2016-17 because HUD Rule changes. It definitively ends the debate, as Mr. Graf is a prominent Colorado HOA Attorney, member of CAI, former Member of CLAC, and Educator of the Year for CAI in 2015.

VIDEO LINK: David Graf of Moeller Graf Regarding Quid Pro Quo Hostile Environment HOA Policies

What is clear from the video and some informal interactions with Mr. Graf is that HOAs are woefully behind in developing Policies to adapt to the new requirements of this change in FHA Law. I know because I attempted to litigate POHOA’s lack of compliance in 2020, which was settled in June of 2021. The expectation is that POHOA would have learned after 18 months in litigation that non-compliance was no longer viable.

Instead, Directors Hutchinson and Brucker, the members of the Litigation Committee for POHOA, repeatedly characterized the Settlement as defeat of the notion that HOAs have an obligation to intervene in cases of Hostile Environment Harassment. And, there’s no denial that POHOA has been in a Hostile Environment condition since at least 2018, and perhaps a year or two earlier per the HUD criteria.

In December of 2019, I filed a Formal Complaint with the POHOA Board because of events at a December 14, 2019 Meeting where certain homeowners showed up and caused a significant disruption. President Matt Clark resigned shortly after, as it was at the tail end of a series of actions taken by those who are in Mr. Flanary’s political group for which he holds 17 proxies out of an available 87 households (19.5%), Poudre Overlook Advocates/Associates (POA).

At the January 15, 2020 Meeting, Director Hutchinson declared with the support of former Director Tuminello, that POHOA had a policy to “Never get involved in neighbor-to-neighbor kerfuffles”. It was recorded in the meeting minutes:

The meeting minutes described an exchange between myself and Jen Hutchinson, whereby I am asking for an intervention required by FHA Law. What I learned through the parallel CCRD case is how the Board at that time privately derided the legitimacy of the claim, and instead chose to react privately with disrespect, while maintaining the appearance of professional conduct at meetings and in correspondence.

The legal advice at the time, we believe, was coming from our long-time General Counsel, Mr. Dauster. In a case of poor judgement, Director Hutchinson turned over written advice from Mr. Dauster to CCRD, along with private emails between board members, assuming that CCRD did not give them to the other party. That bell cannot be unrung, and it displayed clear bias towards me – the issues presented were never given serious consideration because Ms. Hutchinson repeatedly referred to me as a liar, or someone who mischaracterized things – a position which she will say with much emotion still today in certain circumstances.

In the end, the POHOA Board wrote a letter stating that they would refuse to intervene, including by barring Mr. Flanary and Denenberg for having taken non-compliant actions on several occasions while serving in 2018-19. These actions were the basis for the Formal Complaint in May of 2019, and the subsequent Board Removal on 8/27/19.

In August of 2020, the POHOA Board was asked to confirm the policy of “We don’t get involved in neighbor-to-neighbor disputes”, and they did. They even used the pejorative term, “kerfuffle” in the meeting minutes!

Ms. Hutchinson was sent a link to the video from Mr. Graf on Wednesday, January 11, 2023 for comment, but has not responded. Members of the POHOA Board of Directors have also been given an opportunity to comment, as a Board, but have not deliberated on the subject now that a new Board Removal has been put into the mix. All business of the Board is slowed or delayed – except for that being conducted by the de facto Majority, which is now routinely taking actions that should require a Board vote, and coloring them as the actions of the Board.

It is not possible for the Board to have legally effective actions without following due process that is compliant with all governing documents and state/federal statutes. This is exactly how the 2019 Board got itself into trouble, leading to the removal.

The right path forward is to put in place a compliance policy, which is now 6 years overdue. Because of homeowners like Ms. Hutchinson and Mr. Tuminello, who are now leading an effort to remove 2 Directors as signatories on the 12/18/22 Petition to Remove Board Members, absolutely refuse to admit that whether they were informed by Mr. Dauster, or perhaps the advice of any of the half dozen other attorneys we’ve hired, they got faulty legal advice.

But, most importantly, the portrayal by Mr. Flanary and several others in the community that the Settlement of litigation is proof that the FHA requirement to intervene in Hostile Environment Harassment when the case is rooted in the governing documents, and protected classes have a grievance, must receive timely and satisfactory resolution as judged by the aggrieved.

Next time you hear Ms. Hutchinson claim I am a liar, ask her for a specific example. And, if the topic of FHA or Hostile Environment comes up, ask her why she is so certain of her opinion – and what her response is to Mr. Graf’s video. I asked her to review the video, which is merely 78 seconds long, and she absolutely refused to even consider it. When I attempted to reach for comment by email, no response has been received in more than 3 days.

To move forward, we must move into compliance without further delay. Enough is enough.