Director Flanary has a unique history of being the last to enforce rules or policies that the State of Colorado passes laws against enforcement. He has become the Poster Child of HOA Directors that are demonstrating the HOA Governance Model is failing, and why Colorado Legislators are trying to ban such practices to make HOAs less toxic and undesirable thereby hurting HOA home prices.
In the latest chapter of this saga, the POHOA Board decided to create an entirely new policy in November of 2023 regarding Home Occupations. A key feature of the policy was to prohibit certain home occupations categorically.
The policy quietly added to the agenda and calendar, and as a result, I was one of two homeowners who attended the meeting (who were not spouses of directors). I spoke up about the fact that this policy would potentially devalue homes in our HOA, as it would deter buyers who may wish to have home-based businesses and find that the policy is intrusive and excludes certain and specific home occupations that would not violate the CCRs (which are higher in hierarchy than a Policy). There was no discussion – just a cursory allowance to speak for 2 minutes, and zero meaningful dialogue.
Just a few months later, SB24-134 Operation of Home-Based Businesses was introduced on 2/7/24, which prohibits HOAs from enacting and enforcing such policies.
Just a month earlier, the POHOA Board chose to create a new position – a Lobbyist for POHOA, assigned to attorney Jeff Ballweber (spouse of the President). While the move was curious, the question of what, exactly he would do was not answered directly at the 1/10/24 POHOA Board Meeting.
You would think that defending a policy only enacted 3 months prior would be a priority. But, the Board neither submitted testimony or showed up to testify in-person or remotely to defend their policy from the threat of being made illegal by this new legislation.
I testified in favor of this bill on 3/20/24 at the House Transportation, Housing, and Local Government Committee. I told the story of our our policy originated with my wife attempting to have a Yard Sale to sell plant seedlings, and receiving a violation. When it was pointed out that this wasn’t a commercial business, the POHOA Board claimed a power to “deem” it so, which is ridiculous. So, in response, the POHOA Board created this prohibition out of thin air.
None of us agreed to these boundaries when we bought our homes. Yet, the POHOA Board decided to make this a priority in 2023. But, they didn’t go to the HOA General Counsel for a template or even for counsel on the topic – they just wrote it themselves. There wasn’t even a legal review of the final product.
And, this is partly why the Colorado State Legislature had to step in. It’s one in a LONG string of topics that many HOA Boards attempt to regulate, but shouldn’t regulate. If you look at the header for the Section 106.5 of CCIOA where this new statute will now reside, you can see a map of all the things the POHOA Board has prioritized to regulate with prohibitions that they no longer can: Xeriscaping, Signs, Flags, Parking RVs on the Street, Gardens, and now Home Occupations:
And, Director Flanary has taken the lead on trying to be the one to make the last stand on enforcement of several of these. In 2018, he went after at least 2 homeowners who had popular signs on their front lawns featuring the word “LOVE”, and encouraging inclusion of those who speak Spanish and Arabic. That was struck down by HB21-1310
Then he and infamous former Director, Irve Denenberg, spent 2-3 years going after what they termed to be RVs in Driveways, submitting the issue 4 separate times for review (both on and off the Board). Over and over, the HOA Attorneys (at significant expense of legal fees) advised against trying to enforce our rules against the homeowners who had Sprinter Vans, but they would not stop. Then, the Colorado Legislature passed HB22-1139 and made it against the law for HOAs to attempt to regulate parking or traffic on public rights-of-ways.
Since anyone could take their “sprinter van” or actual “RV” and park it on the street anytime they wanted, it made our policy null and unenforceable. Which, it was already – and in spite of it being a poorly conceived policy from the beginning, it didn’t stop the POHOA Board from unleashing Trademark Property Management Group from going directly to our HOA attorney (VF-Law), and creating legal fees for the fourth attempt by Flanary/Denenberg to make an issue of parking a sprinter van. Last Stand mentality costs us real money, and accomplishes nothing.
Then in 2023, the Colorado Legislature passed SB23-178, which was about water-wise landscaping, and specifically prevented HOAs from prohibiting gardens from the side and front yards (among other elements). This would require the POHOA Board to revise the completely outdated 2006 Landscaping Guidelines (written by the Builder/Declarant). But, even after former Director John Tunna tried to put this on the agenda, the other Directors simply blew it off – and haven’t take action since.
The pattern of taking a doomed Last Stand to try to enforce prohibitions in an HOA that is, as described in Section 106.5 of CCIOA as “against public policy” is now a defining feature of any POHOA Board that includes Walker Flanary.
Now, these could be described as the result of the current domination of Democrats in the Colorado Legislature. But, that would ignore the fact that the vast majority of these have been bi-partisan. And, most recently, Republican firebrand, Rep. Weinberg, of Loveland has tried introducing HOA bills that try to stop Boards who overreach their authority, mostly due to his own problems in his own HOA.
But, SB24-134 came close to being passed unanimously in both the House and Senate. Literally, only ONE legislator (Rep. Luck) voted against this in all of the Committee and House/Senate Floor Votes. ONE.
So, by no means is the prohibition on prohibiting HOAs from prohibiting home occupancies carte blanche a political party issue. It was universal.
Which brings us back to why, if this is so universally understood to be something HOAs should NOT be doing, why, just 3 months prior, the POHOA Board, without any legal guidance, decided to make this a priority and pass it?
Well, after passage, I sent a note to the POHOA Board telling them that they would need to revise the policy. And, you know what – they don’t think they have to!
A true last stand statement if there ever was one!
Since there’s been no effort to comply with SB23-178 in nearly a year, it’s unlikely that the current Board, even with the addition of Director Hutchinson, will address what is clearly an unenforceable policy. Having such a policy remain in our documents makes us look rogue to future home buyers, and may negatively affect the pool of buyers – and we have a home for sale currently in the community. It’s sad that we have Directors who put their personal interests above those of the Association and Community.
Adult uses smh
It made me chuckle, but then I found that they essentially lifted the language from Larimer County Code. Also, when I asked our Board what “adult uses” they were imagining regulating, there was kind of deer-in-the-headlights looks.
HOAs need to go the way of segregation, honestly. Once and for all. There is a theme here. The history of neighborhood associations is racist/ this is a fact. The unenforceable “covenants” that are still on the books about what races and ethnicities are (were) prohibited from what housing- THIS. THIS is why it is so toxic. Because the roots are toxic. am thinking a citizens ballot initiative. It CAN be done. Outlaw mandatory HOAs. Where to get the funding is the question.