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September 1, 2010, 9:19 pm
Well, it was too good to hope for, it seems.
Some of you may have received the following letter from the district; ironic that some of us didn’t. I wonder why not?
So, the good news: They acknowledge and confirm that they are no longer funding covenant enforcement.
However, read on in the document…They then state
Your Board of Directors, In consultation with legal counsel, will pursue the issues that need to be addressed including an amendment of the District’s Service Plan.
I don’t know if this is a concern to you or not, but it is to me; the district was formed to provide water, wastewater, parks & recreation – this in essence would be an expansion of an already-dictatorial government body. It also would seek to take that authority away from those homeowners that are in a home-rule area, and those (such as me) that knowingly moved into an HOA-controlled area…and like our HOA just the way it is, thank you very much.
Thankfully, unless I misread the statutes, this one should be relatively easy to prevent. CRS 32-1-207(2) covers Service Plan modification; it’s kinda long, but read it through:
(2) After the organization of a special district pursuant to the provisions of this part 2 and part 3 of this article, material modifications of the service plan as originally approved may be made by the governing body of such special district only by petition to and approval by the board of county commissioners or the governing body of the municipality that has adopted a resolution of approval of the special district pursuant to section 32-1-204.5 or 32-1-204.7 in substantially the same manner as is provided for the approval of an original service plan; but the processing fee for such modification procedure shall not exceed two hundred fifty dollars. Such approval of modifications shall be required only with regard to changes of a basic or essential nature, including but not limited to the following: Any addition to the types of services provided by the special district; a decrease in the level of services; a decrease in the financial ability of the district to discharge the existing or proposed indebtedness; or a decrease in the existing or projected need for organized service in the area. Approval for modification shall not be required for changes necessary only for the execution of the original service plan or for changes in the boundary of the special district; except that the inclusion of property that is located in a county or municipality with no other territory within the special district may constitute a material modification of the service plan or the statement of purposes of the special district as set forth in section 32-1-208. In the event that a special district changes its boundaries to include territory located in a county or municipality with no other territory within the special district, the special district shall notify the board of county commissioners of such county or the governing body of the municipality of such inclusion. The board of county commissioners or the governing body of the municipality may review such inclusion and, if it determines that the inclusion constitutes a material modification, may require the governing body of such special district to file a modification of its service plan in accordance with the provisions of this subsection (2).
I believe that adding covenant enforcement to the service plan constitutes a “change of a basic or essential nature” in that it would be an “addition to the types of services provided by the special district”.
CRS 32-1-207(3)(a) provides the method by which this can be contested:
(3) (a) Any material departure from the service plan as originally approved or, if the same has been modified, from the service plan as modified, which constitutes a material modification thereof as set forth in subsection (2) of this section, may be enjoined by the court approving the organization of such special district upon its own motion, upon the motion of the board of county commissioners or governing body of a municipality from which a resolution of approval is required by this part 2, or upon the motion of any interested party as defined in section 32-1-204 (1).
That’s the key….an “interested party”. CRS 32-1-204(1) states
(1) The board of county commissioners shall provide written notice of the date, time, and location of the hearing to the petitioners and the governing body of any existing municipality or special district that has levied an ad valorem tax within the next preceding tax year and that has boundaries within a radius of three miles of the proposed special district boundaries, which governmental units shall be interested parties for the purposes of this part 2. The board of county commissioners shall make publication of the date, time, location, and purpose of the hearing, the first of which shall be at least twenty days prior to the hearing date. The board of county commissioners shall include in the notice a general description of the land contained within the boundaries of the proposed special district and information outlining methods and procedures pursuant to section 32-1-203 (3.5) concerning the filing of a petition for exclusion of territory; except that, if the hearing is to review a service plan for a health service district or health assurance district, the notice shall not include information regarding filing a petition for exclusion of territory. The publications shall constitute constructive notice to the residents and property owners within the proposed special district who shall also be interested parties at the hearing.
While 23-1-204 deals with forming a new special district (and approving the service plan), the intent of 32-1-207(3)(a), I believe, is to indicate that among others, residents and property owners are interested parties.
So, what does this mean? Well, if I’m reading this right, it means that you as an “interested party” can move to enjoin any changes to the service plan.
If you disagree, make your voice known! Attend the board meetings, and contact your county commissioner to register your objection. The county commissioner for Woodmen Hills is Ms. Amy Lathen, and she can be reached at
Amy Lathen
El Paso County Commissioner, District 2
27 East Vermijo Avenue
Colorado Springs, CO 80903-2208
Phone: (719) 520-6412
Fax: (719) 520-6397
Email: amylathen@elpasoco.com
A simple note or email will suffice; state who you are, indicate that you are an “interested party” under CRS 23-1-207 and CRS 23-1-204, and that you object to any change to the Woodmen Hills Metropolitan District service delivery plan.
If I read the statute right, all it takes is a single “interested party” to move to enjoin…and I’ve already made my notification. However, it wouldn’t hurt for our elected officials to hear from a number of their constituents on an issue that affects them. Isn’t that what representative government is for?
Now if only our board would take that to heart.
August 21, 2010, 5:18 pm
Those of you that were in attendance at the District Board Meeting this last Thursday learned that the board decided to cease funding of covenant enforcement.
I’m told they did it on the advice of their new legal counsel..which speaks volumes about the quality of legal advice of our previous legal counsel (The Lawyer®).
Hey, don’t feel sorry for him…Wal-Mart always can use door greeters, and I hear BP may need some new sycophants.
One would hope that the hundreds of complaints, comments, and articles about this idoicy also had something to do with this “revelation” — but don’t hold your breath for an admission from the board about that.
Let’s see, lots of people upset, over $150,000 of your money spent in legal fees and enforcement…I’m surprised it took them this long. Note that this total does not include any damages the district will be forced to pay as the losing party in the Warne lawsuit…nor does it include any reimbursement due those filings that were double billed.
Don’t hold your breath for that reimbursement either.
Still, it’s a good first step…let’s see if it continues.
It does head off (for now) the class-action lawsuit that was being prepared in Filing 11. It remains to be seen if the district will move to heal the wounds…or continue their “father knows best” approach.
I have been asked what this means to the covenant management board, and the assignment of covenants….’tis a tangled web we weave.
Referring to the original assignment letter from WHMD to WHCMD, (click here to read), paragraph 14 stipulates
14. Assignor’s obligations are expressly conditioned upon the appropriation of funds by Assignor’s Board. In the event funds are not appropriated. Assignee shall be immediately informed and this Assignment shall become null and void by operation of law and Assignor shall have no further liability for compensation or damages in excess of the authorized appropriation.
So, according to that, the assignments are “null and void“, and “Assignor (the district) shall have no further liability for compensation or damages in excess of the authorized appropriation.” — meaning if the covenant management board is sued (I expect it will happen), the district (meaning you and me) are not liable in excess of the “appropriation” ($80,000 for 2010).
— however –
The Lawyer®, in a moment of consciousness lucidity at a previous board meeting, stated the assignment letter was already void…hence the reason the covenant board sought to get “volunteers” to assign their enforcement rights to them. Now, you’ll recall in a previous post that the covenant board voted to extend their insurance coverage to those residents that assigned their enforcement rights…
…but by paragraph 14, they no longer have the umbrella of the district funds — and according to the covenant financials, they are broke.
The point of all this: If any suits are brought against the “Assignment committee”….they are on their own, it seems.
Wonder who’ll get to the courthouse first?
August 5, 2010, 8:48 pm
I attended the Water Workshop this evening; the official notice reads
The Board of Directors of Woodmen Hills Metropolitan District will convene a Work Shop at 6:00 p.m. on August 5th, 2010 at the Woodmen Hills Metropolitan Community Center West, 11120 Woodmen Hills Drive, Falcon, Colorado. There will be no public business conducted or official action taken at the Work Shop. The purpose of the Work Shop is to gain an understanding of water treatment. The Work Shop is open to the public.
I guess I should clarify….I attempted to attend the workshop — but they immediately went into executive session…and were still there when I left an hour and 20 minutes later.
Go figure.
This brings up an interesting question: When can an executive session be held?
Colorado Revised Statutes, 24-6-402 defines a “Meeting”:
24-6-402 Meetings – open to public – definitions.
(1) For the purposes of this section:
(a) “Local public body” means any board, committee, commission, authority, or other advisory, policy-making, rule-making, or formally constituted body of any political subdivision of the state and any public or private entity to which a political subdivision, or an official thereof, has delegated a governmental decision-making function but does not include persons on the administrative staff of the local public body.
(b) “Meeting” means any kind of gathering, convened to discuss public business, in person, by telephone, electronically, or by other means of communication.
OK, WHMD is a “Local public body” as defined in 24-6-402(1)(a), and I guess the Water Workshop is considered a “Meeting” under 24-6-402(1)(b)…
Or is it? Refer back to the official notice: “There will be no public business conducted or official action taken at the Work Shop.“
So, if it was a “Meeting”, why call it a “Work Shop”? And if it wasn’t a “Meeting”, so what?
Here’s the “so what”:
24-6-402(4) The members of a local public body subject to this part 4, upon the announcement by the local public body to the public of the topic for discussion in the executive session, including specific citation to the provision of this subsection (4) authorizing the body to meet in an executive session and identification of the particular matter to be discussed in as much detail as possible without compromising the purpose for which the executive session is authorized, and the affirmative vote of two-thirds of the quorum present, after such announcement, may hold an executive session only at a regular or special meeting…
So…was it a “Work Shop”, or a “Meeting”? I know, sounds like a small distinction…but if so, then why even define the terms?
Well, here’s one reason:
24-6-402(2)(d)(II) Minutes of any meeting of a local public body at which the adoption of any proposed policy, position, resolution, rule, regulation, or formal action occurs or could occur shall be taken and promptly recorded, and such records shall be open to public inspection.
You will note that at all previous “Work Shops”, no minutes are open to public inspection. However, at the “gathering” today, the meeting was recorded.
The point of all this? It’s easy to interpret CRS multiple ways.
The real point of this? Why convene a “Work Shop”, invite the public..and then kick em out for over an hour? Could you not schedule a “special meeting” or an “executive session” for another time?
There’s a “Budget Work Shop” scheduled for August 13th — you might want to bring a book.
August 4, 2010, 9:24 am
Click on the links below.
I make no comments at all on this story…I do not know if the allegations are true or not. Draw your own conclusions….time will tell.
Cherokee’s coup followed by a recall
Filing documents
June 17, 2010, 7:16 pm
The district lost.
Again.
Quoting from the Colorado Court of Appeals Website, for cases decided today (17 June 2010):
Court of Appeals No. 09CA1987
El Paso County District Court No. 08CV2923
Honorable Larry E. Schwartz, Judge
Charles Warne, Bridget Warne, Brandon Cuffe, Norman Villanueva, Nancy Villanueva, Howard Surber, Luana Surber, Travis R. Helton, and Karen E. Helton,
Plaintiffs-Appellees,
v.
Woodmen Hills Covenant Management Board and Woodmen Hills Metropolitan District,
Defendants-Appellants.
JUDGMENT AFFIRMED
Division V
Opinion by JUDGE RUSSEL
Webb and Gabriel, JJ., concur< /p>
NOT PUBLISHED PURSUANT TO C.A.R. 35(f)
Click here to read the Court’s Ruling
What does this mean?
It means the district lost the Warne case, appealed it, and lost AGAIN.
In practical terms, this means that you and me paid for The Lawyer® to lose AGAIN.
I’m not a lawyer (and it seems The Lawyer® isn’t either)…but if I read this right, the district has no authority to enforce ANY covenants:
A. Enforcement Authority
We first explain why defendants lack enforcement authority.
By statute, a metropolitan district may exercise only the enforcement powers that are authorized in the declaration:
<quote from CRS deleted — you’ve read it here many times before>
Here, defendants were not named in the declaration. And we conclude that they received no enforcement authority by assignment.
Why do we keep putting an incompetent pitcher in? More to the point, why do we keep entering into lawsuits and other legal proceedings that are questionable?
We are already $136,827 overbudget on legal fees as of April 2010 — Want to take a guess on how much it is now, or will be after the current lawsuit and the one pending are settled?
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