The Colorado Legislature has fully passed SB23-178 Water-wise Landscaping In Homeowners’ Association Communities. It was signed by the President of the Senate on Thursday 5/4, and the Speaker of the House on 5/5 which sends the Act to the Governor for signing. This change to CCIOA will require most, if not all HOAs to change their Landscaping Policy/Guidelines. But, unlike what we saw with HB22-1137 last year, Boards will not be able to indefinitely drag their feet if they don’t like the new law.
The law includes a section that specifically addresses wanton scofflaws who don’t want to get with the program because they insist that the value of a home or community depends heavily on green lawns. We live in an arid (desert) climate that is only getting hotter over time, and due to massive migration into the state driving massive development, we are running out of water. This legislation arose from grievances from counties and municipalities that testified about how many Coloradoans wanted to do their part, but the biggest barrier were HOA Boards who would not allow replacement of grass with xeriscaping, vegetable gardens, native plants and flowers, and even non-vegetative turf.
The key phrase is that any HOA who simply has a policy or guideline that is contrary to this new law isn’t just violating the rights of the homeowner, but that it is “declared contrary to public policy”. It also makes abundantly clear that the Landscaping Policy is unenforceable.
This law goes into effect 90 days after passage on 5/5/23 on 8/3/23 which means the Poudre Overlook HOA Landscape Guideline Summary should be updated in time to avoid being “contrary to public policy”. The question as we head into the Summer landscaping season is how the Architectural Control Committee (ACC) will handle submissions in advance of this law taking effect, and whether the same committee will seek to enforce the existing guidelines prior to August 3.
The current Guidelines went into effect on January 1, 2007 and have not been amended since that time. They were written by the developer, and the language pretty clearly intends to guide homeowners who bought properties without any landscaping whatsoever. At each junction of consideration of “document revision”, the fact that these Guidelines aren’t really appropriate comes up, but no Board has ever attempted to modify them outside of a broader “document revision”. It appears that this is no longer possible.
Here are the current Guidelines:
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Open in new tab The first thing that jumps out in SB23-178 that is conflict with the POHOA Guidelines is the topic of non-vegetative turf. Paragraph 4 of the Guidelines prohibits use of the material in an absolute manner:
Section 106.5 (i.5)(I)(A) of CCIOA now expressly forbids a policy that prohibits non-vegetative turf:
According to CCIOA an HOA Board is obligated adopt and follow its policies if it intends to enforce them, particularly with fines. Therefore, the ACC, which is a Committee appointed by the Board having authority on such matters per the POHOA CCR Article IX (Sections 1, 3, and 5 in particular), needs to be aware of these changes, avoid non-compliance, and arguably plan ahead.
Whether it is the Board or the ACC that will need to change the Guidelines by August 3 is good question. On one hand Article IX Section 3 is explicit about the ACC authoring the Guidelines and any changes. But, on the other hand, we’ve just recently changed our Policy for Amending Policies on March 22, 2023 in a way that appears to create a conflict with the CCRs. Whether this was reviewed by our new attorneys at Moeller Graf before we changed the policy is opaque to the members, as there were no open meetings prior to the one in which it was adopted. Discussion was limited at the meeting with the votes, and due to time constraints, this question wasn’t raised.
Here is what the new POHOA Policy says:
According to the CCRs, it’s the ACC, not the Board that can amend the Landscape Guidelines, which are considered and listed as a “policy” per the organization of the Governing Documents on the Frontsteps website.
So, which is it? Does the Board have this sole authority because they created a policy, or does the CCR have precedent over any policy?
Well, fortunately, there is a volume of information about this subject as it has been debated among various homeowners and boards by email and at meetings since at least 2017. And, according to those records, which includes several inquiries with multiple HOA attorneys, the CCRs have precedence. Therefore, while we just spent some money to create new policies on 3/22/23, we might just have to go back and revise them again because it appears the ACC retains a power that we attempted to put “solely” in the hands of the Board. If we wish to change that CCR, it requires a 2/3 vote of the entire community meeting for the purpose of changing that CCR.
Complicating the matter further, we now appear to have a major conflict over the evidence cited above. When I served on the Board in 2022, I worked to preserve both the Gmail and Google Drive accounts associated with the email address poudreoverlookhoa@gmail.com. President Lora Ballweber, however, declared that we needed a “fresh start”, and created an entirely new gmail account. I openly questioned whether this was aimed to simply abandon our digital records in order to protect certain individuals from liability discovered in a review of those records.
This is the article on the subject: POHOA President/Secretary Ballweber Abandons Years of Gmail/Google Drive Documents
I tried both during my May-October term, and then again when elected in December, to get Secretary Ballweber (as she was holding dual roles of President and Secretary) to simply import the emails and the files from the old account – a process that is simple and takes very little time. I could not get that issue to be addressed as an agenda item. I am happy to see that it has been added to the agenda for the meeting on 5/9/23.
It is also good to see that that “ACC” is also an agenda item because:
- We currently do not have any idea who is on the Architectural Control Committee
- There are no records of any Board action that appointed the members of the ACC
- There is no record of any meeting where homeowners got to review who was appointed before they were appointed, or ask them any questions
- There has been no announcement of any ACC meetings open to the homeowners
- There are no records whatsoever of the activities of the ACC
According to both the new Conduct of Meetings Policy (also adopted 3/22/23), all meetings of Committees are equally as open to homeowners at Board Meetings. And, there should be written records (meeting minutes), as well as some form of notice as to when and where the meetings are occurring. It appears that the ACC is, in fact, somehow reviewing landscaping and architectural submissions (we’ve heard allusions at Board meetings), but there’s not been an open meeting since at least May of 2019.
Once again, it appears we are obligated per CCIOA to adopt AND follow our policies, yet, this POHOA Board appears to be acting contrary to both CCIOA and the Governing Documents. Whether or not the current agenda listing “ACC” as a “record keeping” agenda item addresses this concern is up for speculation, as we continue to have cryptic agenda that are not accompanied by prose notices that explain such things. It’s almost like the Board intends to keep homeowners in the dark, uninterested, and avoid active thoughtful participation.
Meanwhile, SB23-178 adds one new element we have not seen in recent HOA legislation: Homeowners now have a right to give an HOA Board a 45-Day Notice to update their policies, and if the Board refuses, the homeowner can use civil litigation as the means of enforcing CCIOA (with at least $500 statutory damages to get by the obligatory Motion-To-Dismiss that HOA Attorneys rely upon to avoid compliance, even when they know their client is in the wrong).
It appears that while the POHOA Board did it’s very best to avoid compliance with HB22-1137 until Moeller Graf (and all other HOA Attorneys they contacted) told them that they could not enforce ANY governing documents (CCRs, Bylaws, or Policies/Rules/Guidelines) until they complied with 1137. They needed to comply by August 9, 2022, and didn’t do so until March 22, 2023 (7.5 months late). They won’t have the luxury of such feet-dragging this time around.
There’s another key legal element in this bill that Mr. Flanary raised in my litigation against POHOA in 2020. If the HOA Attorney is successful with a Motion to Dismiss, even on a technicality, the HOA Attorney can plead with the court to be repaid their legal fees. Both Mr. Flanary and his wife vociferously argued the then-Treasurer Jen Hutchinson and Director Brucker (The Litigation Committee) push to have legal fees assigned to me. The effort was unsuccessful because I was able to prove to the court later in the process that my suit was brought in good faith (again, attempting to bring POHOA into compliance with state and federal law), and that I disputed the date used to compute the statute of limitations. We know now, due to the documents that were gmail/google drive that former Director Hutchinson deliberately withheld written evidence of Mr. Denenberg falsely accusing me of a crime – which was the basis if the defamation case.
Of course they want to make these records disappear. The question is whether the other evidence turned up, that POHOA has a policy of deliberately deleting digital records that may be self-incriminating is a fair and reasonable policy, or evidence of a pattern of spoliation of Association Records in bad faith. This is a major issue in the face of impending legal action against some homeowners involved in the “dog incident”. I mean, we can’t possibly be suggesting that digital records are not actual records of the association, are we?
It is no coincidence that the 5/9/23 meeting agenda shows that 2/3 of the meeting is therefore to be in Executive Session. While the topic of the session is not on the agenda, the Board is obligated to disclose the reason that complies with CCIOA requirements and have a vote before going into Executive Session.
It may also behoove the POHOA Board to review another piece of 2023 Legislation, HB23-1259 Open Meetings Law Executive Session Violations. This law applies to HOAs via the application of the Open Meetings Act to all HOA Meetings. The specifics of this law put a burden on homeowners who notice when a Board is abusing their right to address some agenda items in Executive Session – they have to take action before the Board gets away with it 3 times in a row. Weird, I know.
According to the Bill Summary: “The bill requires that, in order to have standing, a person who intends to challenge a violation of the open meetings law by a local public body in connection with an executive session must first provide notice to the secretary or clerk of the local public body and the parties must meet or communicate before the next meeting of the local public body to determine if the challenge can be resolved without filing with the court.”
But, the Bill goes a bit farther and allows homeowners to use Pro Se litigation (self-representation), presumably but not exclusively in Small Claims Court, to get injunctive relief without any fear of the HOA Attorney Fees being assigned to them if they fail. This is a huge advance in the process and procedure of enforcement of Colorado Law on HOA Boards. It means the HOA Attorney and Board cannot threaten and intimidate homeowners to avoid being held accountable over massive attorney fees.
The POHOA Board is clearly heading in the direction of spending thousands of dollars to try to remove a dog from the neighborhood, even if we are forced to speculate due to Executive Sessions. We don’t know if this action is supported by a majority of the homeowners, mostly because we’ve never polled or surveyed them in the nearly 8 months since the incident. We only know that a small faction (Director Flanary’s Poudre Overlook Advocates (POA) political party) has been aggressive in pushing the board into this action.
We know that Moeller Graf has given advice on the matter, but that advice has not been fully disclosed to members – who may be assuming that because they got an attorney, anything they do is “legal”. That’s not how it works. They got advice, and it may be good advice or bad advice. Legal advice is an opinion, not something that makes any thought or action legal. And, presuming it is good advice, the Board is free to ignore it. Without knowing what the advice actually is, we should be careful to judge the actions of the Board as being “legal”. Hiring an attorney doesn’t make everything you do “legal”, and absurd concept. The Board has clearly cross lines in the past as evidenced above (repeatedly), and in many cases, are unaware of where the lines actually are.
Even if ignorance is an affirmative defense per the Business Judgement Rule, the fact that the Board has been given notice repeatedly, and the plain language of new laws making ignorance impossible with notice, the tired excuses that have worked for decades to protect the “bad apples” are sunsetting.
The question about enforcement of the CCRs or Policies on removal of a dog due to an “incident” last September, when Animal Control and the Larimer County District Attorney decided to dismiss the case, and when we have clear evidence of a pattern of inconsistent past enforcement (that Director Ballweber wishes to make disappear by creating a new gmail/google drive account) is a huge ball of potential liability. I know from my own consultations on the matter that the Board has, in the past, given dog-owners warnings without fining, and has simply ignored 2 pit bulls living here. To enforce this in a bull-headed manner given all else seems that it has the potential to be both ineffective, as well as expensive.
This also ignores the impact to the homeowners mental tranquility, which some argue is a right. The incompetence of the Board in not understanding HB22-1137 was a prerequisite, combined with the hand-wringing over what to do under pressure from a minority of homeowners, has left the dog-owners in a state of living in the shadows of indefinite gallows. Imagine, if you consider pets to be family members, the long goodbye with your loved one – or perhaps the grace of a second chance. Our lack of empathy is notable and embarrassing.
And, I have already published the opinion from Altitude Law that the most likely best option is to give a warning with the promise of enforcement by removal should there be another incident. That’s good legal advice echoed by all the HOA attorneys I consulted on the topic.
But . . . the children. “What if the dog takes the face off a child next time?”
Right. We have literally weekly news about AR-15s doing exactly this, but we can’t muster the political courage to do a damned thing about it. And the people on the Board, one of whom is a known Qanon Advocate (Director Clay Jones), who hold the votes appear to support strongly the political party that thinks this way. And, we know that we have HOA Attorneys who have said the HOA has no obligation to make people feel safer.
Yet, we have yet another secret meeting to go over it again. And, given the question about whether the ACC is enforcing, whether we have a legitimate ACC complying with Open Meetings Law and our own brand-new policies, all seems to be combining into an action-packed 5-10 minutes of this upcoming meeting. I have little confidence we get this right unless homeowners show up to impress upon the Board that they want this done correctly and legally.
The question is whether we will get any information about any of this as the Board now bars recordings of meetings. The meeting minutes are not published until after the next meeting (in July), after they are approved. And, we don’t seem to do any public communications any more. So, this all remains opaque which helps the Board avoid scrutiny and accountability. Which is likely the purpose of the policy.
I hope some will choose to attend and participate at the 5/9/23 meeting.