SHAKEDOWN STREET: Board Targets Homeowners Over Yard Sale (with Plants)

On four days in May over a period of 2 weeks (May 13, 20, 21, 27), we had a Yard Sale in our Front yard. We’ve held this sale many years prior, when we have extra seedlings. My wife and I advertised it on Craigslist (like any other Garage/Yard Sale), offering extra Tomato & Pepper Seedlings that we germinated in our home, as many gardeners do. As any gardener knows, you have to overplant seed starts because not all of them survive.

This is what it looked like:

A few days after the sale ended, the POHOA Board sent a violation notice claiming that this sale was a “commercial business” that was creating “customer visits” citing CCR Article X Sections 8 & 20 as the basis for the violation. Shortly after receiving the notice, I published an article on this website. The vague language in the notice made it appear that all sales from a lot (the garage or yard) were now considered a “commercial business”, and this became a de facto ban on garage sales.

I contacted the Board via email, and Dr. John Tunna (John, as he prefers), a Director who has since resigned, responded to me by email with a proposal: That we publish an actual Garage/Yard Sale Policy that makes clear to homeowners in advance where the boundaries are. Because we had had the identical sale in prior years without any contact by any Board, and since we have observed numerous Garage/Yard Sales, there was absolutely no reason for us to believe that this year’s sale would be considered a violation.

It is important to point out that CCIOA (the Colorado laws that govern HOAs) in Section 209.4 require that an HOA update homeowners ANNUALLY if there are any changes to the rules or enforcement. And, having been on the Board in 2022 until I resigned in January of 2023, I knew that no changes had been made. In fact, I knew that the POHOA Governing Documents actually are silent on the topic of Garage or Yard Sales.

As discussed in the prior article, VF-Law (a law firm POHOA has previously hired for legal advice), specifically says that an HOA should have such a policy and to NOT interpret “commercial business” clauses as though they apply to such sales. Yet, this is the path chosen by the current POHOA Board.

John’s proposed policy was quite simple:

John and I discussed this by phone, and when I asked what the actual problem was with the sale pictured above, he suggested the fact that it was held on 3 consecutive weekends was the issue. He asked if restricting homeowners to just 2 weekends per year (whether consecutive or not, limited to 3 days each) was reasonable, and I agreed. We discussed the fact that while his proposal had some details and specifics that were reasonable to us, that it would need to be properly presented to all homeowners who may wish to add or further amend to the policy, and we both agreed that would be appropriate.

We discussed the fact that while limiting any single household to 2 weekends per year would not address a broader concern with traffic and parking that such sales might invite. We both acknowledged that we observe many HOAs have a coordinated Neighborhood Garage Sale, which then has the added benefit for those who participate having the attraction of a wider inventory of items. By putting it on a calendar, neighbors can have input in advance, and plan in advance for such sales (which can then be annualized).

But, as a starting point, his policy, which I continue to advocate, created a simple limit of 2 weekends of no more than 3 days per year is reasonable. And, Larimer County Code allows homeowners to have such sales on 7 calendar days per year, so it is in alignment with superseding rules.

I anticipated that the Board would then put this on the July Regular Board Meeting Agenda, it would pass, and we would move on. I did not imagine that the Board would then twist itself into convoluted pretzel logic to essentially ban us, singularly, from having sales under threat of fines. And, even more astounding, to specifically ban preserved foods like Pickles, Applesauce, or Hot Sauce as “manufactured” goods.

On September 20, we received this email from the Board:

Now, if you will observe above, our sale in May of 2023 was for Seedlings. In a Facebook post around the same time, we offered to our FRIENDS who might stop by to pick up some seedlings, and opportunity to TASTE the remaining hot sauce we still had from the 2022 season. As the Facebook event records show, while less than 15 people were “interested”, no more than 4 “went” on any of the four days, and that includes my wife.

Of course, the point of Article X Section 20 is “nuisance”, which the POHOA Board attempted to claim that the visits to our sale created some sort of excessive traffic or parking.

Well, the ONLY people from the HOA who actually attended the sale were 3 of our 6 closest neighbors. And, this is probably because some of our neighbors go out of their way to badmouth us, including to new homeowners as they arrive in the neighborhood. This type of isolation is something we’ve now experienced for years, and continues to amaze me as the very same people try to put on a facade of being the “nicest people”. So, in spite of nearly the entire neighborhood deliberately avoiding our sale, which means that they were not direct observers, but rather complainers from a distance, the ones who did attend submitted letters to the Board contesting the concept that the sale created a nuisance:

Mr. Clark (Matt), points out that there were at least 11 garage/yard sales in the neighborhood this summer, and it was quite obvious to any of us who attended them that they included items outside of the Board’s new ad hoc unpublished definition.

Both letters were sent to the POHOA Board prior to a “hearing” that the Board refused to reschedule to accommodate our work schedule. They asked that we participate in writing, and this necessitated that we have Mr. Clark and Mr. Rose submit their thoughts in writing. Our other neighbors, the Muhs, were out of town at the time, but have since confirmed verbally that they didn’t find our sale to be problematic or a nuisance either – and they bought plants from our sale as well.

While we asked, in advance of this “hearing” that the POHOA Board disclose all facts that are required by CCIOA to be found impartially (which is also what our governing documents require), they refused to provide ANY facts in advance of the hearing. I specifically questioned how they usurped the ACC on enforcement (the ACC is the body that writes the rules and guidelines for Article IX (Architectural & Landscape) and Article X (Use Restrictions) from the CCRs).

I have since learned that one of the reasons John resigned from the Board was the fact that while the Board would frequently make decisions outside of meetings, his effort to properly follow CCIOA, which requires specific written records (including signed documents when a vote is held outside of a meeting) be kept permanently and disclosed to homeowners who request them, that Directors Ballweber, Jones, and Flanary have ABANDONED THE PRACTICE. They were caught having violated CCIOA, and apparently had not made their decision based on any facts at all – merely hearsay.

Their September responses after the “hearing” on 9/6 were telltale in this regard. Instead of having factual evidence that an actual “commercial business” had operated on our lot on any of the 4 dates in May, they merely “deemed” the sale you see above to be a “commercial business” – and not because they visited, took pictures, or had some physical evidence, but all based upon hearsay of persons who were not actually there themselves!

But, they went a step further and created, BY EMAIL, an ad hoc definition of garage/yard sales which is: “the sale of unwanted used personal or household items”.

Laughable: We “disguised” (see photo above) a “commercial business” as a garage sale. Imagine going to court and telling the judge, “Well, yes, Your Honor, it APPEARED to be a garage sale, but we “deemed” it be a “commercial business because they “advertised” on Craigslist”. They have literally conceded, in advance, that they have to stretch the imagination to make the violation stick – just as VF-Law warned them against doing!

I pointed out to them that if they want to create a garage or yard sale definition or policy, there is an actual required process. This is required both by our governing documents as well as CCIOA. You can’t just send an email to ONE homeowner, and then expect other homeowners to know the policy change and follow it. It’s not just absurd, its an affront to proper HOA governance.

It’s also a major liability and potential expense should the POHOA Board attempt to go to the next step and fine us at our next garage/yard sale. I pointed out that due to CCIOA 209.4, the Board is obligated to disclose how they believe they have the power to regulate what items are sold at such a sale (there is no power or authority), or what document or statute gives them the power to “deem” such sales as a “commercial business”. After multiple opportunities to answer these questions since June, they have utterly failed to respond.

Yet, the email above, in a pleas to state officials copied on the email, they ironically claim they have “nothing to hide”. In other words, they plan to say something to them that they can’t say to me and my wife. Classic gaslighting.

What they MUST no longer hide is ANY EVIDENCE WHATSOEVER of ANY actual registered business (whether we own it or not) selling tomato or pepper seedlings. They are hiding the fact that they know there is none, and that they failed to follow the governing documents and CCIOA. If they have documented their AWAM, it’s time to turn over the document.

Having worked with bi-partisan Colorado Legislators on these issues for over 5 years, and as an advocate of the HB23-1105 HOA Homeowner Rights Task Force (that POHOA announced per law in August by email), I am quite familiar with the fact that the burden of proof for levying and collecting of fines is entirely on the Association through its Board. A court will not allow “deeming” and hearsay as evidence when a fine based on such a violation is levied and collections attempted. Which then opens up an Association who pursues such collections to not just their own legal expenses, but the homeowner’s legal fees for advancing such a frivolous case.

The response from the POHOA Board on September 20 was in response to questions about what the Board intends to levy fines against us for IN THE FUTURE. And, as surprising as it is, they took the time to call out Applesauce, Pickles, Salsa, and Hot Sauce. What they didn’t respond to was all of the things that are normally found at garage/yard sales that are not in their definition: “the sale of unwanted used personal or household items”

This includes such things as:

• Sports/Recreation Equipment (Skis, Paddleboards, Basketball Hoops, Bicycles, etc)
• Large Tools and Machinery
• Electronic Equipment used outside the home
• Antiques
• Collectibles
• Brand New items received as Gifts (but no longer wanted)

However, the Board has now confirmed that if you “make” something in your home with food, it is now “manufacturing”. They fail to realize that this would need to be applied to things like Lemonade stands, cookie/baked goods, and even the NUTS that homeowners on Headwater SOLICITED SALES DOOR TO DOOR for many years without enforcement because of their personal relationship with Board members. Their definition and policy is wrought with obvious inconsistent enforcement issues.

I’m sure most people can find the vague definition, which is NOT published in the governing documents, and therefore a secret in violation of CCIOA 209.4, as well as not following the policy for changing policies, to be lacking as fair or reasonable for enforcement. The fact that the POHOA Board ONLY revealed their definition and banned items list AFTER their “hearing”, which failed to allow us to respond to prior to the hearing.

It is noteworthy that AFTER the “hearing”, the Board tried to retroactively create facts by claiming the sale was held on “four consecutive weekends”. No, May 13, 20, 21, and 27 are, 3 consecutive weekends, but actually over a period of just 2 weeks (May 13-27). While they claim nothing to “hide”, they’ve kept hidden any evidence to support their embellishments and inaccurate claims – when the other party is willing to stipulate an agree to a limit proposed by John Tunna. You have to ask: Why?

This is yet another in a long string of Kangaroo Court actions by the Board lead by Directors Ballweber, Jones, and Flanary. Director Flanary has a long history of this – as his enforcement actions in 2018-19 led to the Formal Complaint in May of 2019 that resulted in the Removal of the Entire Board in August of 2019, and the litigation in 2020. He narrowly escaped Removal again with a vote that was a majority (over 60%) in January of 2023, but fell short of the CCIOA requirement of 67%.

I once advocated for him because he claimed at meetings to have learned lessons and reformed himself. But this enforcement action demonstrates that was all a charade. He clearly intends to weaponize the powers of the HOA to harass and intimidate his “neighbors” in an effort to drive people he and his proxy-supporters wish didn’t own homes in the neighborhood.

While most homeowners are now driven to avoid participation as a result of these disputes and have no appetite for either removing him, or offering themselves in service for the TWO open seats that the Board will not fill, it is clear that at the very least, the Board needs to enact a policy to stop them from making it up by email in an ad hoc fashion. John Tunna was right, and he quit because these Directors simply ignore his good-faith efforts to avoid disputes. His policy should be considered, and if necessary amended to address any other concerns.

Having no policy with people like Director Flanery using “discretion” in this manner leads to discord, and if they pursue fines and enforcement, potential legal expenses when you had a homeowner who was willing to limit garage/yard sales in the manner described by Dr. Tunna’s proposed policy.

I am circulating a Petition to put this policy in place. I hope that everyone will consider it and advocate the same with the Board.

If you are interested in signing the petition (must be an HOA homeowner member), please contact me at your convenience (pohoaandy@gmail.com)
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PETITION LANGUAGE

“I am a homeowner in POHOA who advocates for the creation of a Garage/Yard Sale Policy to address the insufficiency of Article X Sections 8 & 20 to regulate or define such sales. I would like the Board to have a fair, reasonable, open, and transparent process for creating such a policy. I would like this issue added to the Annual Homeowner’s Meeting Agenda for the meeting to be held later in 2023.

If the Board refuses, I would like to have a Special Meeting to consider a change to the Bylaws that allows the same quorum required to then change the Bylaws to allow homeowners to create or amend policies that affect Use Restrictions when the Board refuses to consider or add to the agenda of Regular or Special Board Meetings, refuses to consider under Actions Without A Meeting, or refuses to allow a discussion or vote on such matters at an Annual Homeowner’s Meeting.”