POLICY UPDATE VOTE: HB22-1137 Compliance or Power Grab?

Finally. After nearly 10 months, Poudre Overlook HOA is on the cusp of coming into compliance with HB22-1137. The question is whether the update is just to move into compliance, or if the old agenda to enhance or create Board powers and authorities were slipped in due to the opportunity. Unfortunately, that’s what appears to have happened. Make no mistake, this Board has added elements that have absolutely nothing to do with HB22-1137 compliance.

Directors Ballweber and Jones avoided the agenda item throughout the first 3 months of their term, only to present a poorly conceived policy that was revealed in early September of 2022. We still don’t know who wrote it, other than Director Ballweber stating at the 9/13/22 meeting that I “probably wouldn’t like it”. I suspected that one of our homeowners who is either a former attorney or an attorney in an unrelated field, decided to regurgitate phrases from HB22-1137’s text, and plop the word “policy” at the top of the written work as a means of “Compliance with HB22-1137)”, which also appears at the top of the page.

In one of the meetings leading up to the 9/13/22 Special Board Meeting to consider this (and 3 other new Policies), Mr. Flanary raised the point of whether or not Poudre Overlook HOA was violating the law without having actually changing its policies. And, as someone who has been working on legislative issues now since 2018, I knew the answer: Technically, no.

The law itself does not have any enforceable actions for failing to update governing documents. No one could pursue litigation or any formal complaint with any state agency to affect the HOA.

What I did say and repeat at meetings was that technically, it was fine, as long as you never had to enforce any other CCR, Bylaw, Rule, Guideline, or Policy. And, that any attempt on enforcement without having first updating the policies. And, that is because of something fundamental – Directors are required to follow the written policies of the Association in performing duties. They are not free to wing it, and follow them when they want, and ignore them if they, for instance, perceive them to be wrong, and wish to follow some other guidance instead.

Director Ballweber opined at that 9/13/22 meeting that her proposed HB22-1137 compliance policy didn’t have to go into our other existing policies and make adjustments because . . . the offending elements that are not in compliance were now some form of moot. She claimed they could simply be ignored, and then went on to say that State Law takes precedence. All a Director had to do was know all of this, and then dance and weave through the policies ignoring the things that they shouldn’t follow, and then somehow follow this new policy.

Some homeowners at the meeting spoke up about how this just created conflicts within our documents, and it would be too hard for untrained volunteers to navigate a minefield of policies that, if followed, could lead to an up to $25k penalty if you enforced the governing documents and violated the new state law. I spoke up and simply said that there was one element of her policy that was patently wrong – that there was a 7-day period for curing violations. I brought a written copy to the meeting and asked her to point it out, and she just kept repeating that it was “in” the new statute. But, it wasn’t. And, in follow ups (that probably led to the effort to remove me from the board), no proof of that claim was ever provided.

It is therefore ironic that just 9 days later we had this “dog incident” which gave rise to an urgent need to enforce the governing documents on an owner. And, because we tabled the HB22-1137 policy, we were actually put into this situation where in spite of a strong desire by the Directors to enforce rules at the behest of several owners, they were in exactly the position I had predicted. If they made one incorrect step, their enforcement could create a huge penalty expense for the Association, which of course would be billed back to homeowners through assessments.

Still, in spite of this obvious need, raised again even after I was removed from the Board, still no action was taken to find a competent attorney who actually practices HOA law in Colorado and update our policies. We had more important things to put on the agenda – like whether to turn our reserves into gold coins, give our no-bid contracts to homeowners, and fire the snow removal company in lieu of handing out “gift cards” for snow removal.

It wasn’t until the election of Director Tunna that we finally had a Director who was able to convince the other directors that we needed to get paid legal advice. I was back on the Board, temporarily, and in my first contact with Altitude Law, found that they would not enforce on the “dog incident” until our EXISTING policies were updated and compliant with HB22-1137. And, in spite of shopping the entire market of Colorado HOA attorneys for any attorney that would allow them to enforce without updating, they could not find one.

I had also recommended since September of 2022 that we consider hiring Moeller Graf after I had met Mr. David Graf at the 8/24/22 Town Hall regarding HB22-1137. We had a friendly and cordial discussion for a few hours that day, and I found him to stand out among Colorado HOA attorneys I had met as someone who was amenable to the issues surrounding HOA Homeowner Rights in Colorado. But, it appeared that my advocacy about hiring his firm was handled by at least Directors Ballweber and Jones as a reason to avoid the firm . . . that they eventually hired. Childish.

So, having hired the firm that I recommended in early February, after I had RESIGNED from the Board (as the removal vote was a violation of our bylaws, yet to be denoted in any official POHOA publication), I felt confident that we would finally see a review of our existing policies and either editing or replacing of at least 3 and perhaps more. Their analysis turned up a need to revise 4 of them, and to create a policy that should have been in place since 2014, but for some reason many successive Boards have avoided enacting (an Alternative Dispute Resolution Policy required by CCIOA).

But, when would we get to see them or participate?

I knew the answer. Director Ballweber, who feels that minimum compliance is the only type of compliance necessary for an HOA Board, would only give us notice 10 days in advance of the meeting. And, that’s exactly what she did. Director Tunna had recommended at the January Board meetings that a committee be formed that was inclusive of homeowners, and that the committee’s recommendations would then be reviewed by an attorney. But, transparency and inclusiveness is not Director Ballweber’s brand. She acted in a very predictable manner.

We were therefore presented with a 28-page set of 5 policies that were mailed just 10 days before the meeting, with some only receiving the mailing 7 days or less before the meeting. Our existing policies are completely replaced, so even those who were familiar with them would have to start from scratch to read and understand them to form comments.

As it turns out, the new policies appears to finally meet the requirements of HB22-1137. But, they go a step further and attempt to give the Board (and now Committees) now powers and authorities that they did not previously have. And, just for fun, they include new draconian or authoritarian policies that aim to make the Board’s actions even less transparent than they already are. This reflects the attempts through proposals of an Anti-Harassment Policy (failed in 2021) and Document Revision (failed in 2022) to allow the HOA to run dissent out of meetings (by now “calling” law enforcement), and to make what happens at meetings a he-said, she-said situation by banning recordings.

This is, of course, quite disappointing. However, in the big picture, the fact that we are finally defeating the notion that we can avoid compliance with HB22-1137 indefinitely. Director Flanary, who repeatedly called the law “convoluted” will, in spite of his opinion, be required to follow the law as he leads his political group, Poudre Overlook Advocates (POA), to force removal of a dog from another homeowner’s home – which is all that this policy update is really about from their perspective.

I submitted a page-by-page review of the proposed policy, and in the spirit of transparency, am posting my email here. I offered to meet and/or discuss, but only received this morning a “thank you for your feedback!” response. I hope that consideration of the elements isn’t summarily rejected as my advice to hire Moeller Graf was – as my comments are always in the best interest of this community in spite of portrayals of the exact opposite by those who oppose even my most basic participation in community life.

Below is the policies that are being considered at tonight’s meeting.