UPDATE to January 18, 2011 Board Meeting Posting

Homeowners,

During the January 18, 2011 Board of Directors meeting, a homeowner addressed the responsibility of repairing the sidewalks along Foothills Drive as being that of the individual homeowner, not the association as a whole.

The Board members present rebutted this homeowner by stating that the sidewalks were a part of the common area, and having consulted legal counsel, they felt that the association could be at risk for paying damages caused by the trees if taken to court. Therefore, the board determined that it was in the associations’ best interest to consider the association responsible for the damage to the sidewalks along Foothills caused by the street trees.

The homeowner then replied that the Board was not authorized to make such a determination without approval of a majority of the homeowners, noting section 9 of the CC&Rs. The board’s response was the same without due consideration or review of the actual CC&Rs.

Upon review of the CC&Rs that the homeowner addressed and the board’s argument, I find that the homeowner was correct and the board (to include legal counsel’s assessment) is wrong on this particular issue.

CC&R Section 7 – Maintenance and Assessments part 7.1 states the following:

7.1 Oak Knoll has or will have certain improvements which are for the benefit of all Lots. These improvements include: Sign monuments to be installed on Lot 29, Oak Knoll; traffic circle at intersection of Foothills Drive and Center Street; planter strips along Foothills Drive; and street trees on each Lot…All of the common areas and improvements are collectively called “Common Improvements.”

Under this section, nowhere is it annotated that the sidewalks along Foothills Drive are included in the association’s “Common Improvements.”

It can also be argued that the street trees along Foothills Drive are not a “Common Improvement” of the association either. Section 7.1 only states that the sign monument on Lot 29, the traffic circle, and planter strips along Foothills Drive are all that is classified as “Common Improvements” of the entire association where Foothills Drive is concerned.

Notwithstanding, when you juxtapose this section with the following, it makes it perfectly clear as to who has the responsibility for the maintenance and repair of sidewalks on each Lot.

7.3 Each Owner shall be responsible for the maintenance of the sidewalks abutting his Lot, including any damage caused by the street trees.

Section 8 Maintenance of Lots also makes it clear as to who is responsible for the maintenance of any trees upon a Lot, which states the following:

8.1 Each Owner of any Lot in Oak Knoll shall maintain the condition of said Lot and any and all improvements thereon, including, without limitation…landscaping, sidewalks,…, trees…in a reasonably clean, neat, attractive and visually pleasing manner…

The Board of Directors do not have the authority to assess the entire association for the maintenance, repair or replacement of any damage to the sidewalks along Foothills Drive caused by the street trees. That responsibility rests with the homeowner of each individual Lot.

Moreover, the street trees along Foothills Drive are not a “common improvement” of the association; and as such, they are not the responsibility of the association to maintain, repair or replace, but rather the homeowner of each individual Lot.

CC&R Section 9 – Amendments or Modifications states the following:

9.2 This Declaration may be amended or modified by an instrument signed by not less than seventy-five percent (75%) of the then Owners of Lots in Oak Knoll after seventy-five percent (75%) of Lots 1 through 41 in Oak Knoll have been conveyed to Owners by the Declarant.

9.3 Any and all amendments or modifications to this Declaration must be in writing and shall be recorded as an amendment or modification to this Declaration in the official and public records of Yamhill County, Oregon.

To date I am unaware of any amendment or modification passed by 75% of the homeowners let alone filed with the Yamhill County Clerk reflecting that any damage to the sidewalks along Foothills Drive caused by the street trees as being a “Common Improvement,” therefore the responsibility of the association as a whole.

Additionally, there is no amendment or modification that has been passed by 75% of the homeowners classifying the street trees along Foothills Drive as being a “Common Improvement” of the association. As such, the association should not be assessed the $13,650 reserve to maintain, repair and replace the street trees along Foothills Drive let alone the maintenance or repair of the sidewalks damaged by said trees.

Regarding the vague explanation given where legal counsel was concerned by one of the board members present, it would not matter if someone took the association to court over the damages to the sidewalks along Foothills Drive should they be harmed in one manner or another due to that damage. That person would lose such a case because it is not the association’s legal responsibility; it is the homeowner’s of the adjoining Lot, and it would be that homeowner taken to court (should such a circumstance ever arise) over the damages left unrepaired, not the association.

Last but not least, one of the board members said that our CC&Rs are basically a cut-n-paste job from other association CC&Rs, thus implying they were more guidelines than rules for them to follow. It does not matter how our current CC&Rs were put together, they are the CC&Rs of our association and they are to be followed to the letter.

Oregon Revised Statutes make it perfectly clear that the Board of Directors (having assumed responsibility of the association when turned over by the declarant, thus taking on the responsibility of the declarant where the homeowners association is concerned), as well as the homeowner, is bound to follow the CC&Rs:

94.777 Compliance with bylaws and other restrictions required; effect of noncompliance. Each owner and the declarant shall comply with the bylaws, and with the administrative rules and regulations adopted pursuant thereto, and with the covenants, conditions and restrictions in the declaration or in the deed to the lot. Failure to comply therewith shall be grounds for an action maintainable by the homeowners association or by an aggrieved owner. [1999 c.677 §36]

The Board of Directors, as is each homeowner, is bound by the CC&Rs, Bylaws and the Oregon Planned Community Act. To date the Board of Directors have been violating the CC&Rs (and ORS 94.777) by holding the association accountable via assessment (through past and present budgets) as a part of our annual dues for the maintenance and repairs to the sidewalks that are damaged by the street trees, as well as the replacement of street trees along Foothills Drive.

Oregon Planned Community Act ORS 94.550 to 94.783

MUST READ: January 18, 2011 Board Meeting Notes

Dear Homeowners,

This evening was the first Board Meeting of the Homeowners Association of 2011, and the turnout was not all that great though not unexpected. Years ago when I first attended these meetings only a dozen or so homeowners attended, and the same was observed this evening. Notwithstanding, I understand why there was such little turn out; after all who wants to go to these meetings with the intent on asking important questions only to get lip service (i.e. no straightforward answers) from the Board of Directors present?

While I was intent on attending and speaking up about the issues I’ve raised, I changed my mind after listening to over half of the homeowners present bring up the reserve account and the street trees on Foothills Drive, and the responses that that board members gave. Thus I felt it was far more prudent to listen and learn how other homeowners felt than speak.

Listening to the concerns of the other homeowners, a few raised some excellent points and two questioned the arborists consulted by the board having their own experience with trees (one of whom is an arborist and member of an arborist society for more than 25 years).

The lead board member who initially responded to the inquiry into the reserve account and the dying/dead street trees along Foothills Drive disclosed some telling facts.

First and foremost is that the landscaping company they’ve been paying over the past several years “were not qualified” to maintain the trees.

Second and most important is the fact that the board “skimped” on the maintenance and overall care of the landscaping, to include the tress, which resulted in our current predicament with the $13,650 reserve account.

Naturally another board member responded in “damage control mode” disagreeing with the former board member’s description of “deferred maintenance” in order to save the association money. In doing so he rationalized the lack of proper care and maintenance of the street trees on the notion that the trees were planted at different times and not all cared for at the same time (ignoring the fact that it was already disclosed that they were not really even cared for at all!).

Additionally he described drainage problems in the parking strips as the cause of the street trees dying; thus we may very well see an additional expense come up in our future budget for drainage along Foothills drive.

However the arborists consulted, according to the letter we received announcing the problem and reiterated by the board members this evening, never established a clear reason as to the cause of the death of these trees. 

However, if we wanted to know a “probable” answer as to the cause of death, we could pay over $2,200 to have a study conducted at a university. The board decided not to do that in the interests of “fulfilling the CC&Rs in a cost effective manner,” as such they assessed what they thought would cover the expenses of not only removing the trees, but also in buying large trees to match the size of the other still living trees; in addition to the arborists expense to trim the trees all at once instead of in sections, along with the cost of a 1-2 year warranty per tree. 

Then to top all those expenses off, there is the thousand plus dollars that it would cost us in payment to the management company to send us the notification, billing, receipt of checks, processing and depositing the checks, and then paying for the expenses of replacing the trees; which they determined to be $1,000 to $1,500 per tree.

When this cost figure was question by a homeowner who expressed their knowledge and experience with trees, especially the trimming issue (which this homeowner believed was not a necessary element to the survivability of the trees), it was asked if the trees planted were the correct trees for the region to begin with.

The board’s response was that they were but the underlining “problem” had to do with the “crazy” way the branches and roots grew causing instability in the strength of the tree and ability to absorb the water. Then it was commented (rather directly implied) that the developer was the proximate cause of the issue at hand due to their improper “drop and plop” planting. Notwithstanding, the arborist already concluded that the death of the trees is “a mystery” without conducting a study to find a “probable” cause of their demise.

In short, there is no physical known cause for the trees dying other than the Board of Director's unsubstantiated assertions of the likelihood that they were incorrectly planted and have “crazy” branching and “circling roots” choking the tree to death from its water supply.

After all this rationalization by the board, another homeowner, the 25 year experienced arborist aforementioned spoke up and stated plainly that he disagrees with the board and the arborists assessment of the street tree issue. In response all the board could do was invite him to walk the neighborhood and give them his assessment of the tree issue, and consult with the same arborists they consulted.

Another important question brought up by another homeowner was whether or not we (the homeowners) can expect to see this $13,650 reserve account assessed next year. The board’s response, it’s not their “intent” to do so. Adding further, it was said that the $13,650 reserve is higher than anyone likes, but “specific” expenses were intended to be purchased and paid for this year. However they did not disclose what those “specific” expenses were.

Why? They don't feel that they have to since the Oregon legislature "grandfathered" in assocations created prior to 1999 as not being required to conduct a reserve study and/or provide a maintenance plan without either an adopted resolution by the board to follow established law for those assocations created after 1999 - or by petition of the majority of the homeowners to do so.

Hence the intent and purpose of the petition that you received in order to force the board to abide by statute and provide in writing an annual reserve study and maintenance plan.

That way we homeowners will know exactly what the "specific" expenses are, why they are being assessed, and how they intend to be paid.

In sum, the board alleges that the developer is the primary cause of the failure of the trees due to the manner in which they were planted; and the fact that the trees simply could not absorb that which gives it life – water – due to “crazy” branching. Not to mention the fact that the board (the main speaker at the meeting) admitting to “skimping” on the landscape maintenance budget (thereby implying no attention was given to the tree situation) over the past several years in order to save the association money. 

But now the entire association of homeowners is left footing the bill for their collective mistakes and the assertion that the trees tend to grow branches in a “crazy” manner. If the latter is in fact the case, simply replacing them with the same species of tree won’t solve the issue, as we would more likely than not face the same situation in another three, five, or ten years. If we don't get a majority of the homeowners to sign and turn in the petition now, whose to say that the next reserve assessed won't be $20,000 in order to replace the trees for a third time!

P.S. Another homeowner did ask questions regarding the literal interpretation of the CC&Rs regarding who is responsible for the street trees along Foothills along with the care and maintenance of the sidewalks. I will defer further commentary on this point until I have had adequate time to review the CC&Rs, Bylaws and relevant statutes.

You received a FLYER & PETITION in the mail - Now What?

Homeowners,

With the flyer you received is an important petition to sign and return to the Homeowners Association.

This petition will force the Homeowners Association to abide by statute regarding reserve accounts. They will have to conduct a reserve study and provide a maintenance plan that shows the homeowners what they intend to use the money for.

Moreover, it forces them to get a 75% vote of the homeowners to either reduce or increase the amount assessed for the reserve account.

If you don't sign and return the petition, then the Board of Directors will be free to reassess and raise the amount of the reserve account without any written explanation as to why.

A majority, which is 100 out of 198 homes, is all that is required to force the Board of Directors to comply with Oregon Statute to conduct a reserve study and prepare a maintenance plan so you - the homeowner - will know exactly why the amount assessed for the reserve is what it is and how it will be spent.

It's important that we start holding the association and the management company accountable for their actions, to include the annual budget and what they intend to do with our money!

Homeowners...it's time to PETITION the Association to do its job and do it RIGHT!

January 8, 2011

Dear Fellow Homeowners,

As you are all aware, the Oak Knoll Homeowners Association (HOA) via Superior Community Management Company (SCMC) has sent its annual budget for 2011 that includes a reserve account in the amount of $13,650 for the maintenance and repair (i.e. replacement) of the street trees along Foothills Drive.

A review of the HOA Newsletters dating from 1999 to 2005 has shown that the HOA has paid for the replacement of trees along Foothills Drive more than once through the Landscaping (maintenance and repair) fund with no need for such a large reserve account.

While it is the Association’s (i.e. the homeowners) responsibility to maintain these trees, it is the HOA via SCMC to ensure that the landscapers are doing their job in what they were hired to do…i.e. prune the trees. This failure to properly care for the trees along Foothills Dr. has resulted in an the SCMC consulting and subsequently hiring (at an annual cost of $5,200 to cut back a few branches) noted the same deficiency in caring for the trees, and had no conclusive answers as to why the trees were dying to begin with.

Nevertheless, if a little common sense were applied it is within reason that maybe these trees are dying due to a lack of proper care by the landscaping company – and – no oversight of SCMC to ensure that they were doing what they were hired to do.

Now as a result of the combined negligence of the landscaping company and SCMC, the HOA now wants us homeowners to collectively pay $13,650 for their mistake via an arbitrary reserve account. In other words, they do not have to explain how they came to that figure and why, much less how they intend to use it.

In order to make the HOA via SCMC more responsible to the homeowners for this reserve account, and any future payments into it and accountability for expenditures made from this account, we need a majority of the homeowners to sign a petition in order to force the reserve study and maintenance plan provisions of Oregon Revised Statute (ORS) 94.595 (3) and (4) upon them.

In doing so, the HOA via SCMC will be required to conduct an annual reserve study to review and update an existing study to determine the reserve account requirements; in addition to a review and update of the maintenance plan as necessary in juxtaposition to the reserve study.

If we do not obtain a majority of homeowners to sign a petition forcing the HOA via SCMC to comply with ORS 94.595 (3) and (4), then the Board of Directors will be free to increase the amount of the reserve account year after year without so much as an explanation as to why. I don’t know about you, but I for one do not like paying increasing annual dues to an association that does not follow the Declaration of CC&Rs, Bylaws and/or statutory law to the letter.

Other issues concerning the HOA that should make you angry is the fact that when the very first HOA established a reserve account in the first adopted budget in 1999, which was continued through 2004 with so much as an additional payment to increase the balance; it was abruptly depleted in 2005 and ceased ever since without an explanation.

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Another example of the HOA via SCMC violating the rights of homeowners that should really get you even angrier is the street tree issue on individual homeowner’s lots.

ORS 94.780 Remedies makes it perfectly clear that (1) the Declarant, association, any association member or any other person subject to ORS 94.550 to 94.783 to comply with applicable sections of ORS 94.550 to 94.785, shall be cause for suit or action to remedy the violation or to recover actual damages; (3) A suit or action arising under this section must be commenced within one year after the discovery or identification of the alleged violation.

The issue of the street trees on individual homeowner’s lots was effectively “discovered” in mid 2000 and ended mid 2001. Therefore, any letter sent by the HOA and/or its management company (SCMC) since threatening suit or action should the homeowner fail to comply with their demands that street trees be planted at the homeowner’s expense was beyond their statutory authority in this matter.

In 2008 I receive several letters, as I am sure many of you did just the same, telling me I needed to comply with the CC&Rs and have the street trees planted on my personal lot or they would be planted for me and I would be billed for it. And if I did not pay that bill, they would charge me fines and put a lien on my home until that bill was paid in full.

In response I addressed this issue over the street trees with the HOA’s attorney and prevailed.

The underlining facts of this matter, as admitted to by previous Board of Directors in written HOA Newsletters dated 2000 - 2005, is the fact that the legal contractual responsibility for planting street trees on individual lots was the Declarant (i.e. developer) via the contract with the City of Newberg. That contract specifically states that permits of occupancy were not to be issued until the developer completed its development of each lot – which included planting of street trees – prior to receiving permits of occupancy. Therefore the personal and financial responsibility for planting the street trees remained and continues to remain with the developer and NOT the individual homeowner.

For more than a decade the HOA has been committing violations of the Declaration, Bylaws and the Oregon Planned Community Act (ORS 94.550 to 94.783) while arbitrarily and selectively enforcing the same governing documents upon various homeowners in our planned community.

I believe it is time that we take a stand, as a community of homeowners, and demand accountability of our Board of Directors and the management company they hired to act within the boundaries of the Declaration, Bylaws and governing statutes.

In order to accomplish this, I would encourage everyone to sign the above petition and return it to the HOA via SCMC as soon as humanly possible. Once a majority has been reached, the HOA will have to comply with the statutory provisions of ORS 94.595 (5)(B) upon receipt of our (majority approved) petition; and thusly conduct the required reserve study and maintenance plan as mandated by ORS 94.595 (3) and (4).

In sum, we as homeowners need to stop blindly paying whatever annual dues the HOA via SCMC bills us without holding them accountable for those funds.

We need to be informed and continuously apprised of all board actions, to include arbitrary and capricious selective actions by the HOA via SCMC (e.g. you receiving a letter to comply with a particular section of the CC&Rs meanwhile having knowledge that another homeowner in the association has never received such a letter for the same alleged violation), and most importantly…communicating with one another.

In facilitating that communication amongst the homeowners I have created this blog spot where we all can post our comments, suggestions, grievances, and questions about the actions that our HOA via SCMC are taking without consulting the homeowners of the Oak Knoll Community.

I will also be posting important links to the Oregon Planned Community Act, Declaration, Bylaws, and other important sources of information to all our benefit.