What Advice Did They Actually Get from the HOA Attorney?

After a year of attempting to find out what happened when Irve and Walker went to Pete Dauster to affirm a board decision regarding the Brucker’s shingle color, we finally have proof in the form of a voluntary confession by Irve that they did not, in fact, seek advice on that matter – and instead discussed entirely different topics. Furthermore, the confession on 8/27/19 also revealed additional falsehoods – namely, an allegation by Irve Denenberg that the attorney had declared that if an owner decided to be represented by an attorney, that they would waive their rights to a hearing prescribed in our CCRs and Policy for Enforcement.

These has the appearance of fraudulent and dishonest conduct that gives rise to the potential use of C.R.S. 7-128-109 to bar them from participation in our HOA self-governance for a period of time. I am advocating that the community, as a whole, should consider taking this action in lieu of the prohibitive expenses of litigation. While a judge has statutory authority to bar such persons, it is not described as exclusive jurisdiction, and since C.R.S. 7-128-109 and it’s companion statute, -108, require the same quorum to raise the issue (10% of the community per our bylaws), it is fair, logical, and reasonable, that the community consider the matter directly.

BACKGROUND

When I asked Walker and Irve for documents from their actions as CCR and ACC Committee Chairs in January of 2019, I didn’t expect a 2-month stand-off. But, that’s exactly what they did. They didn’t respond to emails until prompted by both President Keith Knight, and then Acting President Maryann Goyn.

At one point, as a delay tactic, Irve suggested that the Association would have to get a “jump drive” in order to release them to the Secretary.

But, after reminding Irve that he could simply upload them to Dropbox (online file-sharing) to avoid the expense of a piece of hardware that wouldn’t have further use for the association, he then handed over a 3-ring binder that had a very small amount of information, to Buck Hammond, who then gave it to me.

It was odd to have both dragged feet for so long, created the appearance of a mountain of data, and then only deliver a small portion. There was absolutely no emails turned over at all by either Walker or Irve, and given the higher-than-normal volume of enforcement activities led by these two, it was strange that we had literally no documentation of such enforcement other than the legal notices sent to those owners. And, even those weren’t accurate and complete.

When we, as a Board, came to an impasse regarding even the consideration of my formal complaint – a report of violations of statutes and governing documents – the same stonewalling regarding documentation occurred. But, this time, Walker persuaded Maryann to send a letter on the day following my formal complaint, to Pete Dauster, ordering him to funnel all communications through the two of them. When I contacted Pete by phone, he confirmed that they had placed this restriction on him, and unless I was willing to pay his fees out-of-pocket, he could not speak to me at all.

CORE ISSUES

What I was seeking to learn was whether or not Pete had given good advice to Walker and Irve, and they didn’t follow it, or he had given bad advice to them regarding the Bruckers. What I didn’t expect is that he would say he hadn’t given “any significant advice” on the matter.

It’s important to note a distinction raised by Irve at the 8/27/19 meeting, which was a thematic characterization made by the “majority bloc” of the old Board. Namely, that the fact that Pete Dauster had issued an invoice for his contact with them was prima facie evidence that advice, had, in fact, been given. But, no one was saying they never made contact, or that Pete was absolutely silent on the matter. The analysis hinges upon whether the advice was or was not significant to the matter.

In order to properly frame this, one must consider what it was that was at issue. On 10/9/18, the Board decided to give a bifurcated fine schedule to the Bruckers, giving them a choice about how long they had to replace their roof based upon the fine amount. If they replaced it in 3 years, a $1500 fine. If they wanted more time (8 years), they would pay a higher fine of $3000. Leave aside, for the moment, that determining fines prior to a hearing is a violation of state law – because that isn’t relevant to the issue of fraudulent misrepresentation and dishonesty.

The purpose of their meeting with Pete Dauster was simple: Was our board decision OK.

In hindsight, a good attorney would have recognized the simple problem of fining the Bruckers prior to a hearing. The statutory requirements should have been known to our HOA attorney, and as a result, his advice should have been that we have a hearing before determining whether a fine should be imposed, let alone the fine amounts.

“The Colorado Common Interest Ownership Act (“CCIOA”), at C.R.S. 38-33.3-209.5(2), addresses the parameters that HOAs must comply with prior to imposing a fine. Here’s what you need to know:

 
●    HOAs in Colorado may not impose a fine unless: 
(1)    The association has adopted, and follows, a written policy governing the imposition of fines (this is one of the 9 required “SB 100 Policies”); and
(2)    The policy includes a fair and impartial fact finding process to determine: (1) whether the violation actually occurred, and (2) whether the owner of the unit is the individual who should be held responsible for the violation. 
 
● The impartial fact finding process can be informal. However, at a minimum, the owner must be given notice and an opportunity to be heard before an impartial decision maker prior to the fine being imposed. Many HOAs make the mistake of imposing a fine without first providing the alleged violator with notice and an opportunity to be heard. 
 

https://www.cohoalaw.com/covenant-enforcement/before-imposing-fines-make-sure-your-ducks-are-in-a-row/

It’s important to note that at the 8/27/19 Special Meeting, Buck Hammond made a statement at 23:20 in the video, saying that only procedural errors had been made and that “it’s a mistake to think we haven’t been following the rules”. It’s simply not true. The issue is engaging in the actions causing severe emotional distress by determining that an owner will need to spend $15k out of pocket to replace a roof, and then consider thousands in fines without first having a hearing on the matter.

It’s even more important to note the weak and unsubstantiated claim by Irve that the hearing was not requested prior hiring an attorney, and that hiring an attorney, waived the right to a hearing. It’s literally absurd, yet, this is the characterization that Walker, Irve, and Buck promoted not only at the meeting, but in face-to-face lobbying around the community for several months.

FACTS

The Bruckers first asked for a hearing on October 8th, 2018. Linda Brucker emailed Irve Denenberg and said:

On Mon, Oct 8, 2018 at 8:48 AM, Linda Brucker wrote:

Hi Irve,

I hope you had a nice weekend.  Can you tell us why the ACC would need to know the name of the roofing company?  We’ve provided the manufacturer, shingle type and color of what was used which can also be found on the manufacturer’s website.  As mentioned in our letter, we didn’t think this was an issue and our solar panels are going back up today.  Having the solar panels back up and getting the house painted a darker base color (starting this week, weather permitting) will further reduce the contrast of the roof color.

As you can understand, this has been upsetting to us and we don’t like the idea that we are being “bad neighbors”.  We are now hyper-aware of roof color and have noticed that the colors of all roofs in the neighborhood can appear quite differently depending on sun or shade and dry or wet.  We would be happy to meet the ACC at our house to look at the roof from many angles and talk through any concerns.  Please advise as our sincere interest is moving past this.

Thank you.  

Linda

It’s important to note that this request for a face-to-face meeting, while not described as a “hearing” by Linda, is, in fact, the objective. And, it precedes the Board meeting on 10/9/19. Unfortunately, because the 2018 Board refused to allow participation at these meetings by owners, and didn’t allow recordings, there’s no objective proof of what was discussed other than the Meeting Minutes, which were drafted by Walker Flanary, as Secretary of the HOA.

The minutes clearly demonstrate that the Board considered some prior correspondence with the Bruckers, but not specifically the 10/8/19 email from Linda. This omission may have had the effect of mischaracterizing the Bruckers, which is a theme that continued right into the 8/27/19 Special Meeting when Walker attempted to cross-examine Linda in front of the entire community regarding when, in fact, they asked for a hearing.

Regardless, two days after the 10/9/18 board meeting, Irve wrote to Linda without giving her a clue about the decision made by the board.

From: Irve Denenberg
Date: Thu, Oct 11, 2018 at 8:58 AM
Subject: Re: Roof
To: Linda Brucker
Cc: Keith Knight, Andrew Mowery, Buck Hammond, Clay & Gloria, Maryann, Paul Janov, walker flanary

Hi linda,Until the Board concludes their review on the roof, it would be advisable to delay reinstalling your solar panels until such time.  If you have any further questions please let me know or contact the HOA.  As this is being reviewed by the Board. 
Best Regards,
Irve, ACC.

Clearly, the Board had reviewed the matter and come to a decision. All that was necessary was a blessing by the HOA attorney. But, that information was withheld from the Bruckers.

Kevin Brucker followed up to Irve’s email with an announcement on 10/11/19 that they were hiring an attorney. But, once again, this is coupled with a request for a face-to-face meeting, which is the same as a hearing. There was no response from Irve, or anyone else on the Board leading to a follow-up on 10/15/19. And then another on 10/17/19. And finally a response from Irve on 10/19/19.

From: Irve Denenberg
Date: Fri, Oct 19, 2018 at 10:45 AM
Subject: Re: Roof
To: Kevin Brucker
Cc: Keith Knight, Andrew Mowery, Buck Hammond, Clay & Gloria, Maryann, Paul Janov, walker flanary

Kevin,First our apologies for any inconvenience.  Please understand that we are a Board / Management group made up of individuals, not a management company.  Unfortunately, Board members have been unaivable, and it has taken some time to all meet.  No one wanted to make a hasty decision. The reality is, no one wanted to be put into this situation.   As to the color variation you see throughout the neighborhood the shingles are all called Weatherwood, or Drift Wood and has variations between manufacturers. These are the only colors that have been approved by the Board.   The Control Guidelines clearly states ” All colors on the exterior of a residence must be approved in writing by the Architectural Committee”. 
You can expect a decision by the end of the month.  Again, sorry  for any unforeseen delays.

Kind regards,
HOA Board

On Wed, Oct 17, 2018 at 1:04 PM Kevin Brucker wrote:

Good afternoon,The ACC first wrote a letter expressing concerns over the roof on September 16.  We promptly replied to this and subsequent email communications.  We are now over a month removed and we are still waiting to hear next steps or final resolution.  When Buck first approached us about wanting to become a member of the board, the primary reason was to increase transparency and ensure better representation of all households.  With all due respect, I don’t feel that this transparency is evident in this process since we are still waiting to hear what is going on.  In consideration of the fact that we are all neighbors who must continue to communicate in the future, can you please provide a status today?  We would like to hear the board’s decision on whether additional action will be taken and/or if we can all meet to discuss.

Thank you,
Kevin

On Mon, Oct 15, 2018 at 2:38 PM Kevin Brucker wrote:

Hello, Neighbors,

We have asked our solar company to delay reinstallation.  Our desire is to move past this issue as quickly as possible.  As we stated in our original letter, we can meet with you face to face to talk through concerns and /or walk through the neighborhood to view the varying shades of shingle colors already present. 

Can you please advise when we will hear the board’s decision or when we can meet?  

Kevin

On Thu, Oct 11, 2018, 12:19 PM Kevin Brucker wrote:

Dear Neighbors,
As you can understand, we are very disappointed and concerned to have received your latest email.  Considering the tone and content of the messages on October 9, we were under the impression this matter was resolved.  Our single greatest concern with having a self-managed Home Owners Association was the impact on neighbor relationships.  Our neighbors are now put in the position of making judgement calls which can be a source of conflict.  It is troubling because rather than dealing with an outside, impartial company we risk looking at our neighbors as “with us or against us”.  This does not build community.  We love our neighborhood but hate the idea that we could be so divided over the shade of grey that we chose for our roof. 

As we have stated and you can see with our history of architectural approval requests, we have never intended to push the boundaries or create problems in the neighborhood.  Rather, our property is well maintained, we pay our dues, we attend meetings, and we take great pride in our home.  Overall, we feel we are a net plus to our neighborhood and it’s property values.  The HOA’s most important job is to enforce rules that preserve property values and we appreciate the inherent challenges with never being able to make everyone happy.  However, we are struggling to understand why this is a concern.  Had we selected a metal roof or green shingles we could understand (and support) the concern.  However, selecting a grey asphalt shingle with flecks of darker grey instead of a grey asphalt shingle with flecks of dark brown does not seem particularly worrisome.  While we are sincerely apologetic that this has caused heartache for anyone, we strongly believe that property values in the neighborhood are not impacted by this action.  Furthermore, the language of this regulation states, “Shingles are to be Tamko Weathered Wood or similar manufacturer and color.”  It is our position that there is a degree of interpretation included with “similar…color”.  This wording preserves the intent of keeping a relatively standardized appearance in the neighborhood, while still affording a measure of flexibility. 

Based on this last email, it appears the board is considering requesting us to re-roof our house because we selected a different shade of gray.  This is very disappointing to hear when considering the totality of our property; the variability of roof appearance based on manufacturer, the amount of direct sun or shade, and the amount of moisture on the roof; and the built-in ambiguity of our regulations.  Additionally, the solar reinstallation will block or limit the view of our shingles.  Due to weather, our solar reinstallation was rescheduled from earlier this week to next Tuesday, October 16, and we intend to move forward with it.  We have decided to retain legal counsel to ensure we are protected against our own home owners association.  To say this is a sad and troubling step is an understatement.  Please advise us ASAP of the board’s decision so we proceed accordingly. 
Kevin and Linda Brucker

So, it’s fair to reveal, at this point, what was going on in the background. Certainly, the Board members, as individuals, were concerned with the lack of response and voiced their concerns in a thread concurrent with the quote above. But, what’s revealed is confusion about who should respond and general agreement we are pushing the envelope in regards to response in a timely manner.

But, there’s something in the thread that jumps out: Paul Janov’s statement that the Board should rely upon Walker Flanary’s “legal experience”, which is in criminal, not civil law, and certainly not practiced in the state of Colorado. Yet, that is precisely what ended the conversation – Walker’s decision to put them off yet another week.

From: walker flanary<wgflanary@gmail.com>
Date: Wed, Oct 17, 2018 at 1:03 PM
Subject: Re: Roof
To: Paul Janov
Cc: Andrew Mowery , Irve Denenberg , Gloria .J , Buck Hammond , Keith Knight

Irve:

I would advise them that they will hear from the board late next week.  That unfortunately, some board members have been unavailable due to other commitments.

On Wed, Oct 17, 2018 at 9:45 AM Paul Janov <pauljanov1@gmail.com> wrote:

I defer to Walker’s legal experience.   pj

On Oct 17, 2018, at 8:38 AM, Andrew Mowery wrote:

I agree we should have some sort of response in a timely manner. I believe we were awaiting a legal review before proceeding, right?

Unfortunately, any response that precedes that review could result in having to walk back what we say. I think we are stuck until then, unless anyone sees another way out. That, in turn, probably means the best we could say is “still working on it”, which is probably causing them stress not to mention delays with their contractor that probably won’t be resolved by our response (as they have to consider their remedial option).

Would it be fair to respond saying that they should not proceed with the solar panels at this time, or is that jumping too far ahead?

On Wed, Oct 17, 2018 at 7:18 AM Irve Denenberg wrote:

This is not a pleasant issue.  I would like to hear from the President,  vice president of the Board  concerning this…

On Tue, Oct 16, 2018 at 9:10 PM, Clay & Gloria Jones wrote:
Someone should answer.  

On 10/16/2018 7:35 PM Irve Denenberg wrote:

Since the President is out of town, should the vice president respond? 

So, clearly, the Board was paralyzed by a combination of vacations, lack of process, as well as delays in actually getting advice from the HOA Attorney, Pete Dauster, which still had not occurred for more than a week after the Board had actually voted on a decision regarding the Bruckers.

But, by October 20, the President, Buck Hammond, revealed that instead of doing what was stated in the Meeting Minutes and meeting with the HOA attorney himself, he delegated this to Walker. And, likely for the same reason stated by Paul Janov – because the Board was relying upon Walker to be an in-house attorney giving advice to the Board as official legal advice.

From: Buck Hammond
Date: Sat, Oct 20, 2018 at 7:03 AM
Subject: Re: Roof
To: Irve Denenberg, walker flanary, Poudre Overlook HOA of Fort Collins <poudreoverlookhoa@gmail.com>, Maryann Goyn, Paul Janov, Andrew Mowery, Clay & Gloria Jones

Irve: I apologize but have been traveling this week and next.  Walker, what did you discover when you spoke with our lawyer this week?

Buck

Walker, as is his normal practice, does not respond by email at all to this thread, and it is unknown if there is any written record of a response to Irve or Buck directly. However, on October 23, Irve suddenly calls for a new Special Board Meeting on October 29th, and indicates that all board members need to be familiar with the HOA policies on fines and hearings, in particular.

From: Irve Denenberg
Date: Tue, Oct 23, 2018 at 8:44 PM
Subject: SINGLE TOPIC BOARD MEETING
To: Keith Knight, Andrew Mowery, Buck Hammond, Clay & Gloria , Maryann, Paul Janov, walker flanary

A brief meeting is needed to finalize the black roof removal letter.  After reviewing in more details, Poudre Overlook HOA policy for enforcement of Covenant’s and Rules #4 Fine Policy, Notice and Hearing Procedures (please read prior to meeting) a Board meeting is necessary to finalize our letter to the homeowner. A proper quorum is needed. we will meet Monday the 29th of Oct @ 7pm Walker house. Only if we have enough members.  Please RSVP ASAP…. via this email string.

Thanks,
Irve

It’s noted that Irve isn’t stating anything about having met with the attorney to review the first decision, and that the purpose of the meeting is to finalize a letter (ie a Notice) going to the Bruckers, and that it’s about REMOVAL, which is to say that Irve is stating that the Board is requiring removal of their “black” roof.

The following day, we received a letter from the attorney for the Bruckers, Kevin Ward. In that letter, there is an explicit request for a hearing. And, I responded to the Board (and inadvertently copied the Bruckers on the cc list), citing the policy Irve had requested that we review.

My response goes through the letter from Mr. Ward thoroughly, but begins by asking if after two weeks, anyone has actually gone to see the attorney:

“I think the first question is whether anyone has contacted our HOA attorney yet.”

I also gave my recommendations:

Therefore, I think, in order to handle this properly from this point forward we need to:


1. Get our attorney to weigh in on the vague language of “similar”
2. Get our attorney to weigh in on whether we waived a right to review their interpretation of “similar” through the ACC Committee by sending out a blanket conditional pre-approval email.
3. Get our attorney to review whether we are obligated to have an in-person hearing, as the rules appear to suggest.
4. Schedule a hearing to resolve the matter, if our attorney does not have objections.


I understand we’ve had vacations that have affected this matter, but I believe that at this time, we are all here and available. Keith has recused himself on this matter, so his absence should not be a factor in any delays regarding an in-person hearing. 

What is curious is that my email appears to have been sent on the morning of October 24th, 2018, and Walker and Irve met with Pete Dauster, the HOA attorney, later the same day after having received my email and recommendations.

Originally, Walker and Irve reported to the Board at the Special Meeting on 10/29/18 that Pete had declared our “deal” to be invalid because it would be unenforceable due to the statute of limitations of 1 year, tolling from the date of the hail storm. The meeting minutes, however, do not contain the details of this discussion – only that the conversation with Pete affected the new decision made on 10/29/18.

All we get is “The substance of this discussion was relayed to the Board”.

And, due to this “substance”, which is then given added weight because the Board considers it appropriate for Walker to be giving legal advice to the Board on top of this consultation, the Board is bullied into reversing it’s 10/8/19 decision, and instead requires the Bruckers to replace their roof by June 1, 2019, and pay a $5000 fine with $25/day fines on top of that if they are late.

The problem we now have in evaluating this is that while there was no written record of the meeting by Walker, Irve, or Pete, we have to consider the fact that Pete Dauster stated on May 31, 2019 that he didn’t give any significant advice on the matter when they met on October 24, 2018.

But, the actual language is a bit different: He said that Walker and Irve “really did not seek my counsel with regard to this matter in any significant manner”.

This is exceptionally important! It’s not that Pete was given the information about the 10/8 meeting, confronted with the issues I or anyone else raised regarding following the procedures for hearings, or any of the other substantive matters.

So, when Irve (and Buck and Walker) defend the notion that “advice was given”, it’s a red herring. Yes, advice was given. But WHAT ADVICE is crucial to the analysis, and Pete is stating explicitly that not only did he not give advice on the matter, THEY DIDN’T ASK ABOUT IT!

In other words, Walker and Irve went to Pete with their own customized agenda, returned to the Board, and then inserted their own legal advice (vis a vis Walker’s ad hoc position as in-house board attorney) which leaned heavily on the concept that if we made a contract with the Bruckers, it would be unenforceable on the concept that the statute of limitations tolled from the date of the hail storm. Unfortunately, even a lay person with some pro se legal experience would instantly know that such legal theories are bunk.

And I debated it with Walker, who threatened me verbally at the meeting. He said that due to my “sympathetic” letter to the Bruckers and my protest here, I would be the first person deposed should this go the full length of litigation with discovery. It was the moment I knew that I was not dealing with honest persons, and that our HOA had a major legal issue on the horizon if not course-corrected. Yet, I had no support from other board members at the meeting, particularly with Keith absent.

So, fast-forward to the 8/27/19 Special Meeting, where Irve stands up, and without being prompted, decides to reveal the “advice” given by the attorney, Pete Dauster, on October 24th. If you review the video at 30:42 to 31:45, you’ll hear Irve’s explanation.

His points were fairly simple:

• Pete told us what we need to do to protect the community’s rules and regulations
• How we handle “this” going forward
• If the family had not “lawyered up” the best thing would be to talk to them
• “our comment, in unison, was ‘that’s great. that’s what we will go back and do.”
• “unfortunately, when we got back, we got a letter from the family’s attorney and according to the advice in the words of the lawyer, if they had not lawyered up yet the best thing was to talk to them. Since they had lawyered up, we thought, we should not speak to them any more.”

If you’ll notice, there’s absolutely no indication that the 10/8/18 board decision was discussed, that the procedure for having a hearing per Article IX Section 7 was discussed (and we know from further correspondence in November, Pete had never read the section even a month later), and that the original purpose of sending Walker and Irve was ignored.

This is smoking gun proof that Walker and Irve misrespresented the attorney’s “advice” at the 10/29 meeting. They fabricated a justification for reversing the 10/8 decision based upon a bizarre and absurd notion about statutes of limitations, and then revised history when it was scrutinized months later.

How do we know this?

For one, Pete Dauster wrote to Buck Hammond on 11/1/18, two days after the Board meeting, and stated:

“If you are going to meet with them, I think we should wait to record the Notice. Is that where this is headed or not?”

So, clearly, Irve is, once again, at the 8/27/19 Special Meeting, articulating a false narrative passing blame for the lack of contact with the Bruckers on Pete Dauster. But, clearly, Pete was not against contact (or a hearing) for the simple fact that the Bruckers have “lawyered up”. It’s false, and it’s on the record.

This is further undermined by what occurs in November, as Kevin Ward presses for the hearing promised in Article IX Section 7 of our CCRs. That issue had to be presented by Buck 3 times to Pete Dauster before he finally decided to look up the passage and agree that, in fact, the Bruckers were owed a hearing. And, not just a hearing, but a hearing before there is any determination of whether an actual violation occurred, and whether fines should be imposed. Look to the bottom of the document below.

But, worse than this, when it came time to visit the issue for the third time on 11/20/18, at yet another Special Board Meeting, Walker, Irve, and Buck advanced the notion that no in-person hearing was due to the Bruckers, and that the letter from Kevin Ward was their actual representation at a hearing which by any other observation or definition, was definitely not a hearing. In fact, it comes pretty close to the textbook definition of a Kangaroo Court.

To pour salt in the wound, after the meeting, the same persons attempted to make the meeting non-transparent by declaring it an Executive Session.

CONCLUSION

It is very clear that the sum of this analysis is that we have multiple examples from just one single case of an attempt to enforce the governing documents that two persons, in particular, met the criteria of C.R.S. 7-128-109 for engaging in fraudulent or dishonest conduct. And, this is aggravated by the cover-up actions of refusing to turn over documents, attempting to prevent contact with the HOA attorney (a party to the meeting/advice), and even interfering with discussion or dissemination of information by taking over the HOA website and removing such documentation.

How can such persons be allowed to continue to participate in our HOA’s self-governance? And, should the only remedy be to go to court for tens of thousands of dollars?

These are serious questions for the community at Poudre Overlook to consider. And, when I went to the legislature to ask what is the right path, I found that many HOAs are in a similar dilemma because CCIOA and the NonProfit Act are unenforceable without cost-prohibitive litigation expenses. Therefore, my appeal to the community is to follow the pattern the legislature says is the remedy, just like CRS 7-128-108: The community must bar such persons themselves with a community-wide vote, and address future issues with a strict policy regarding fraud and dishonesty.

Our community cannot be successful or at peace when we have persons who not only act in this manner, but do so willfully. And, that’s clearly the case based upon the evidence.