First Of All, Eject All The Lawyers
The subdivider land rush on Western ranches in the 1970’s, stopped after a few years by environmentalists, left behind conglomerates of lot owners governed under covenants written by the subdividers. The rule of law — and influence of lawyers — elsewhere does not often apply to these non-profit corporations any more than democracy applies to business corporations. The Baca Grande, carelessly platted on an old ranch in southern Colorado’s arid San Luis Valley, is one such subdivision. But there are many others, such as the more prosperous Eldorado near Santa Fe and Rio Rancho near Albuquerque.
Of about 3,500 lots owned by about 2,900 parties in the Baca Grande, at least half lie undeveloped and hundreds of these are perpetually up for resale or under tax liens. A heavy majority of owners live out of state due to original mass marketing or even out of the country due to sales at military bases in Asia.
Law enforcement depends upon the county sheriff at Saguache, 30 miles across the dry valley (many residents like deputies at a distance), and fire fighting is up to private entities (a slim majority of voters have blocked taxation to fund the local fire district).
Governing has become so variable that the Baca Grande Property Owners Association (POA) is a sort of fight club that cannot even come to agreement on how to elect a representative board of directors. This was the issue at a contentious meeting on the first evening of summer. After two hours of watching the left jabs and right crosses I became more interested in watching for the moon to rise from the astonishing Sangre de Cristo Mountains through the smudged steel-framed windows of the old and often painted association hall.
Confronting each other at a long table were some complaining property owners and the POA board members they have sued, alleging unlawful procedures in the board election last November. A professional parliamentary moderator from the other side of the mountains had been brought in, but the civil exercise accomplished nothing tangible except to clear the way back to district court.
The lawyerless homegrown lawsuit had been dismissed (“without prejudice,” the plaintiffs kept emphasizing) by Saguache County District Judge Martin Gonzales on the basis that it was not timely. One reference must have been something, one of those non-binding statements of purpose, that the Colorado Legislature inserted in the uniform code called the Common Interest Ownership Act (CIOA). It says, “The general assembly finds and declares that the cost, complexity, and delay inherent in court proceedings make litigation a particularly inefficient means of resolving neighborhood disputes.” It goes on to say the associations are “encouraged” to adopt mediation rules such as the one under which the June meeting was called.
Diane Dunlap, the leading plaintiff, declined at the outset of the meeting to give away their case because their lawsuit, in her words, “is very much alive.” She also objected to the board’s hiring of the moderator, Mary Anne Tebedo of Colorado Springs, who served 18 years as a Republican in the legislature.
But Dunlap was not shy about asserting the main point: that the election of three board members at the annual membership meeting last November was invalid for numerous reasons and, therefore, the three should step down and acknowledge everything out of the ordinary that they have done since taking office last January is null and void.
The three are Russell Schreiber, Matie Belle Lakish and Diana Moats. But it was board member Treat Suomi, elected previously, who emerged as their spokesperson. He said most participants agree that the election procedure “is something that needs to be fixed.” He invited everybody to work together “so the next election we have will not have all these problems and not cost all this money.”
Bruce MacDonald, a plaintiff, responded, “We have three board members that were not duly elected, and that’s the primary dispute. I don’t hear anything about what is to be done about it.” Repeating this several times later, he said it wasn’t enough just to say “we’ll get it right next time.”
The problem here, as elsewhere, is the lack of clear legal guidance in how to elect people to take the heat of governing an unincorporated rural subdivision. The association bylaws say: “Any vote for the election of directors shall be by written ballot in a form to be prescribed by the board.” But they go on to say, “The vote allocated to a lot may be cast under a proxy duly executed by the lot owner. All proxies shall be in writing.”
The CIOA says, “Votes for contested positions on the executive board shall be taken by secret ballot” and that the ballots shall be counted by uninvolved and objective volunteers.
Most of the votes in the November election were by proxies — Dunlap called them “hybrid proxies” — submitted directly by mail or indirectly through people attending the annual association members meeting. The plaintiffs argued in the special June meeting that the election process was flawed by lack of respect for the secrecy of the ballot and transparency of the counting, but they were not specific, except to point out that the Colorado Springs company to which most operations of the association have been outsourced took the ballot box home. Suomi said the company, Hammersmith Management Inc., merely examined the paper for “alterations” and found none.
Another objection mentioned by the plaintiffs was that board members arrogated to themselves the authority of a nominating committee. Association bylaws say candidates “must have been nominated by the nominating committee or by petition with 25 signatures.” Schreiber said the problem here was that nobody in the community wanted to serve on a nominating committee despite numerous requests for volunteers.
Tebedo intervened often, sometimes telling Dunlap to hush up and Schreiber to speak up, but her greatest challenge was the plaintiff Nigel Fuller. Standing and pointing an angry finger at a man in the audience, he said, “Why is Bill Short here?” Fuller said his target was not a property owner and was, in fact, a lawyer.
Tebedo said, “Why does that make a difference? I’m not sure I’m going to recognize him.” She suggested Fuller should confront the man at recess. But Fuller persisted, saying, “Why is Bill Short allowed?”
Tebedo said there was no provision for questioning anybody in the audience. Lakish said, “It’s a public meeting.” Fuller remained standing. The man still did not respond. Tebedo said, “People here are allowed to listen.”
Dunlap entered the fray, saying, “He’s a lawyer for the defense.”
Tebedo said, “Why does it disturb you?”
Dunlap said, “He’s only here because he’s the lawyer for Treat and Russell.”
Tebedo called a recess, during which there were no fist fights. The meeting resumed, covering the same ground as before. The moon eventually rose.