Dear Board Members,
At the February 15, 2011 Board meeting when I said I am not trying to be adversarial and only want everyone to follow the rules, I meant it.
When two of you retorted that I should follow the rules as well and plant street trees on my lot, that was clearly an irrational emotive knee-jerk reaction.
I am following the rules, which are the rules that govern the binding legal agreement between the City of Newberg and the Developer of Oak Knoll; and more specifically, that of the Oregon Revised Statutes governing Planned Communities.
The responsibility to plant street trees on individual lots rested (and still rests) with the Developer as a stipulation of their legally binding contract to develop this community, not the individual homeowners.
To the board member who stated that I didn't win in this case merely because they decided not to foot the legal bills to force me to plant street trees, I'll say again...I did win. You know just as well as the HOA attorneys that you hired that the HOA would have lost in court based on three simple legal facts:
1. The legal obligation to plant the street trees rests with the Developer per their development contract with the City of Newberg (as a stipulation before getting their occupancy permits).
2. ORS 94.780(3) clearly states: A suit or action arising under this section must be commenced within one year after the discovery or identification of the alleged violation.
3. OKHOA Newsletters dating back to August 2000 officially put in writing the Board of Director's "discovery or identification of the alleged violation," and the Board had one year from that date to commence a suit or action in the matter.
In this specific issue, like many more probably to come (which depends entirely on the Board in following the rules and reading the CC&Rs literally and not subjectively interpreting it), in the end I ultimately forced the Board of Directors to follow the rules - namely ORS 94.780(3).
Since it was not brought to my attention by the HOA until late 2008, I was not obligated to follow the illegal (because you cannot pass a legal obligation of the legally binding party to a contract onto that of another party not a part of the original contract stipulating the required obligation) CC&R provision to have street trees planted on my lot. The Board was 8 years too late...
And any consideration to revisit the issue in the present would be foolhardy on your part...as the limitations of commencing a suit or action on the street tree issue died more than 10 years ago and was laid to rest 2 1/2 years ago by the Board conceding to my rebuttal to its position, thereby dropping the matter.
In any case, no judge in his or her right mind would defy a state statute that was so clearly written as a protection for not only the HOA, but also the homeowner.
Hence the REAL REASON (and not so much the sheer legal costs as alluded to) why the Board dropped this matter back in 2008, because the Board knew it could not win based on the statute of limitations placed upon it within ORS 94.780(3).
So while I may not have won the issue in court...I prevailed on the legal merits of the issue nonetheless.
And while some of you conveyed your disapproval at the "unfairness" to the other homeowners that I don't have street trees...all I can say is that they didn't know any better whereas I did in not being taken advantage of! Moreover, it is "unfair" of the Board to force a homeowner to perform an act when the Board knows that homeowner is not legally obligated to do so.
Nevertheless, life isn't fair; and I would rather be one who defies unfairness and lead by example in defending not only my own rights, but the rights of others who are also affected by that same unfairness being forced upon them.
Bottom line, if I - as a homeowner - am required to abide by the CC&Rs and the Oregon Revised Statutes that govern our community, so is the Board of Directors. And that is EXACTLY what I meant tonight when I said that I am not trying to be adversarial, as I only want the rules and the laws followed by all affected by them.
This also means that as the Board of Directors, if you fail to act in a timely manner on an alleged violation of the CC&Rs, then that is a responsibility the Board of Director's must and shall bear.
That being said, it's bad form to be angry (and express that discontent) at the homeowner for defending their rights (on principle and under the law) in the face of the Board's failure to act properly and timely on the issue in question.
Sincerely Yours
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