Letter from our attorney

September 14, 2009

RE: Appeal of ACC Decision re Trees on Kellogg Property

Dear Members of the Wind ‘n Tide Homeowners Association Board of Directors:

I have been retained by Nathan and Cynthia Kellogg to respond to the Wind ‘n’ Tide Homeowner’s Association’s Architectural Control Committee’s decision regarding Raymond and Jadette Donahue’s complaint about certain evergreen trees on the Kelloggs’ property. I have reviewed the applicable CC&Rs, prior ACC decisions, and related correspondence, and I have reached one inescapable conclusion: the ACC’s decision is utterly insupportable.

As an initial matter, contrary to what at least some ACC members appear to believe, there is no question that the provisions of the First Amendment to the Declaration of Protective Covenants and Restrictions Easements and Conditions of Plat of Wind ‘n Tide apply to any decision regarding tree removal. The First Amendment, which was approved by over 80 percent of Wind ‘n Tide homeowners, was recorded on July 7, 2008 and went into effect July 7, 2009. Section 1.2 of the First Amendment requires that mature native evergreens/ conifers that existed within the plat as of 1980 are exempt from removal. The ACC had until July 7, 2009, to designate which trees fell into this category. The fact that the ACC apparently has failed to do so does not change the fact that such trees may not be removed pursuant to the view covenant. And there is no question that the disputed trees on the Kelloggs’ property come within this classification. Were the ACC ever to decide otherwise, the Kelloggs or any member of the Association could challenge this finding.

Even if the provisions of the original Declaration applied, the Kelloggs’ trees could not be removed. Every ACC decision that addressed the issue since the plat was recorded until last year exempted mature existing evergreen trees from removal. For example, in a 1986 letter regarding the “Blackham View Review,” the head of the ACC stated that “[i]t was decided that all existing evergreen trees were pre-existing to the Blackham property purchase and therefore exempt from consideration and should remain.” Similarly, a 1990 decision regarding Lot 35 stated “all existing evergreen trees to remain.” And, most notably, the ACC rejected the Donahues’ 2006 request that the Kelloggs’ evergreen trees be removed, stating that “[t]he conifer trees that are shown in your photographs are exempt as far as the Architectural Committee is concerned. . . the Architectural Committee will not find these owners in violation.” Follow up letters from the Donahues concede this point and instead continue to complain about certain trees planted by other lot owners after they purchased their properties. In sum, the issue of whether the ACC could order the removal of the trees on the Kellogg property was already decided by the ACC. Even if it had not, any one-time change in this enforcement would be arbitrary and capricious and, accordingly, unenforceable.

Finally, I note that the Kelloggs’ lot is classified as a landslide hazard area. This classification places restrictions on tree removal, among other things. Accordingly, even without the plain language of the applicable Covenants, the Association cannot proceed with tree removal without complying with County regulations.

On a related matter, the Kelloggs have advised me that the ACC never informed them of the Donahues’ complaint or allowed them to respond before the ACC issued its decision. I also understand that the ACC has refused to disclose how many of its members were present when the decision regarding their trees was made and which members voted in favor of the tree removal. These actions violate Washington’s homeowner’s association law, see RCW 64.38.045(2), and basic due process rights. Moreover, the Washington Supreme Court has held that individual board members and other association members can be held personally and jointly and severally liable for damages and attorney fees when their decision is “unreasonable and arbitrary and in violation of the covenants.” Riss v. Angel, 131 Wn. 2d 612, 631, 934 P. 2d 669 (1997). These members have a “fiduciary duty to exercise ordinary care in performing their duties and to act reasonably and in good faith.” Id. at 680-81. Accordingly, Board and ACC members who have voted or later vote in favor of the ACC’s decision are individually and jointly and severally liable for the Kelloggs’ damages and attorney fees. Hence, aside from due process and other concerns, it is in the interest of those members who did not vote in favor of the tree removal that the Association disclose this information.

Since the Declaration as amended does not provide for requests for reconsideration to the ACC, the Kelloggs through this letter are appealing the ACC’s decision directly to Wind ‘n Tide’s Board of Directors in accordance with the provisions of the First Amendment. Please note that the ACC’s unlawful actions have forced the Kelloggs to incur attorney fees, which they are entitled to recover if they prevail. If the ACC’s decision is not reversed by September 30th, the Kelloggs will file suit against the Association and each individual Board and ACC member who voted in favor of removal of the Kelloggs’ evergreen trees seeking an injunction, damages, and attorney fees.
Very truly yours,
Dianne K. Conway

cc. Nathan and Cynthia Kellogg
Members of the Wind ‘n Tide HOA ACC

DKC:dkc

Decisions, Decisions

How we decide to proceed for here has implications for us, and for the association, financially. We could go to court and ask for a summary judgment. A win would likely leave the HOA responsible for our ( already climbing ) legal expenses. What a waste of money!

Of concern also is the fact that a loss here by the HOA might weaken the ACC, at least in the short term. I've been told that I'm crazy for taking the HOA's finances and stability into account in this decision - but I do feel as if I have a lot of time invested in the CC&R revision, which was intended to prevent exactly the situation we find ourselves in now.

The CC&R revision was supposed to be followed by creation of a documented procedural framework that the ACC would use to make fair and informed decisions. Once a decision is reached in this manner, enforcement will be an issue in very few cases and if it comes to involving threats of legal action, at least the Association would be on steady ground.

Our attorney is quite confident in our position and perhaps this is the only way to recover our expenses to date. Not to mention some satisfaction in exposing the way this was handled by the ACC!

What Can (and Can't) an Architectural Control Committee Do?

The ACC made some pretty serious procedural mistakes in the 2007 denial of a remodel plan for the house at lot 34. This resulted in a re-hearing and reversal by a newly re-formed ACC, under the supervision of Association attorney Rick Shattuck. Rick provided us with a Washington State Bar Association publication describing, among other things, the procedural standards that an ACC needs to follow:

1. Did it exclude biased persons from the ACC?

2. Did its members fully inform themselves' including

visiting the site?

3. Did it afford interested parties a full and fair

opportunity to present information for the ACC to

consider?

4. Did it gather all the relevant information it needed to

have in order to make a fully informed decision?

5. Did it take steps to veriff that the information it

intended to rely upon was accurate?

6. Did it seek information from an "expert"?

7. Did it actually consider the information it collected?

8. Did it correctly apply the standards to the facts?

9. Does its decision advance the common plan?

10. Is the decision consistent with ACC decisions on

similar applications?

11. If the decision is different than decisions on past

similar applications, has the ACC articulated valid

and reasonable justifications for distinguishing the

present application from the previous ones?

12. Is its decision in writing?

13. Does it set forth its findings and conclusions

supporting its decision-that is, does it explain how it

got from the evidence to the decision?

14. If the decision denies approval of a proposal, does it

describe why the proposal was rejected or what

alternative actions might be approved?

The new ACC ( not the same ACC that made the original decision ) members at the time this document was recieved by counsel included Karl Scherer, Nathan Kellogg, Roger Noll, and Ray Donahue.

Claim was denied in 2006

On September 4, 2006 Ray Donahue complained to the ACC regarding ( among other things ) mature fir trees on the west side of our property.

For the record, we were never contacted about the trees on our property, except by a new resident in a context that was not condusive to cooperation. More on this later if need be.

Interesting here that this complaint is joined by a member who's final building inspection was 35 days prior to the complaint.

The ACC denied this claim on September 25, 2006:

Donahue had some success in getting Mrs. Cone to remove the maple tree. This maple tree was at least partially obstructing his view of our mature fir trees.

The decision with respect to our mature fir trees was never contested.

I'll be posting all of the ACC documents in this matter in another post, they make for some interesting reading.

Ray Donahue wants a better view - 2nd try

Revised 9.10.09

On August 20, 2009 we received a certified letter from the WNT Arcitechtural Control Committee directing us to "remove and/or top" all of the mature fir trees on our property. The ACC also asks us to remove trees not on our property, but more on that later.

I was a bit shocked. I had heard rumors that Donahue was going to re-visit his claim that we are responsible to keep our trees out of his view but I had no idea that there had been anything formal in the works. Apparently his letter to the ACC was sent on April 17, 2009, more than four months prior our being notified of the issue.

Donahue had never spoken to us about these trees even though he was given opportunity to do so after the last time the ACC denied his claim over our trees.

The Assocition has a long history of preserving and protecting mature fir trees in our community. This goes back to the time of the original plat. There are quite a number of building plan approvals where the ACC had specifically required that mature fir trees be left on lots as they were developed. There is not a single instance that I can find where the ACC has required the removal of a mature fir tree. Quite a number of owner planted trees have had to be removed over the years, but never a mature fir tree left in place by the lot developer.

The ACC made it's decision on August 11, 2009 after the CC&R Revision became effective. However, Chris Frier - an ACC and Board member, informs me that since the complaint by Donahue was filed in April, 2009 the original CC&Rs apply.

The CC&R revisions with respect to mature trees and views only clarified existing Assocaiton policy and change the basis for ACC consideration very little.

We attempt to prepare a response:

First, we need a bit more info, so here's the text of our letter to the ACC :

Ralph Hjalseth

Chairman, ACC

Wind 'n Tide

P.O. Box 313

Wauna, WA 98395

August 20, 2009

Mr. Hjalseth,

We have today received your letter concerning the ACC's decision regarding trees on our property affecting the view of the Donahues.

We dispute this decision and request the following information in order to prepare our response:

1) The original complaint letter.

2) The dates and locations of ACC meetings regarding this issue.

3) Names of ACC members present at these meetings.

4) Polling of ACC member votes.

5) Copy of ACC's exempted trees listing pursuant to the CCR revision.

Sincerely,

Nathan & Cindy Kellogg

We got a phone call from Hjalseth after he got this letter. During that call he tells me that we already have the names of the ACC members, they were provided with the annual meeting packet that was mailed to all members. He also says that he needs to come down to my house to "familiarize myself with the situation". I expressed surpise that he was not already familiar with the situation since the ACC of which he is the Chairman had aready directed me to destroy my trees. The visit idea dies here.

In another letter, we ask for the minutes of the ACC meetings and copies of any correspondence, and add a clarification to the request for info on who attended the ACC metting(s):

Ralph Hjalseth, ACC Chairman
Wind N Tide Homeowner’s Association
PO Box 313
Wauna, WA 98395

August 24, 2009

RE: Document Request


Dear Mr. Hjalseth,

Please provide me with copies of the following documents:

1) Meeting minutes for all meetings of the WNT Architectural Control Committee for the period January 1, 2009 to date.  If the names of the attending members are not included in these documents, please provide that information separately.  
2) Names of any other persons present at the time and location of the meetings.
3) Copies of all correspondence sent or received by the ACC for the period January 1, 2009 to date.

In the event that you are not able to provide me with copies of these documents please specify a location, date and time, within the next 7 days, when I can inspect and copy the documents myself.  


Regards,

Nathan Kellogg

The response from the ACC:

So we get a copy of the April, 2009 complaint from Donahue, the date of the meeting, and are told that the exempt trees document "has not been voted on or agreed to" ( this will be important later ) , but no info on who was at the ACC meeting and/or how they voted. Hjalseth also incorrectly states that the ACC has 12 months to so designate the exempt trees. I think he missed the fact that the twelve month clock started on July 3, 2008 at the time the revised CC&Rs were recorded. The board and acc know this is overdue now anyway; I had conversations with Donahue, Frier, and Roger Noll about this fact in late spring.

One more try :

( This letter added to blog on 09.10.09 )

Ralph Haljseth, ACC Chairman
Wind N Tide Homeowner’s Association
PO Box 313
Wauna, WA 98395

August 29, 2009

RE: Document Requests


Dear Mr. Haljseth,

We are in receipt of your undated letter in response to our
 August 20 correspondence requesting information from the ACC.

I appreciate your providing me with a copy of the Donahue 
complaint.   

Your answers regarding the names and votes of the ACC members 
present at the meeting when this matter was decided are 
unsatisfactory.  We are aware of what members serve on the ACC.   
We are also aware that not all of those ACC members were 
present when the matter was decided.

So, again, we request that you provide us with a list of ACC 
members present at the July 8, 2009 ACC meeting at your home.
We further request that you indicate for us how each of the
members present at the meeting voted on this issue. If votes 
of ACC members not present at the meeting were considered,
please provide that information also.

Regards,

Nathan Kellogg

No response from the ACC on this one. Instead, we get a letter from our HOA President, Mr. Donahue:

We had previously asked Pam Cody, HOA Secretary, for any Board minutes for the year to date. This is provided. Still no response to the question of who was at the meeting.

This is really starting to look like Donahue and Haljseth do not want me to know who was at the meeting.

Apparently Donahue is not aware of applicable Washington law regarding HOA records:

RCW 64.38.045(2):  All records of the association, including the names and addresses of owners and other occupants of the lots, shall be  available for examination by all owners, holders of mortgages on the  lots, and their respective authorized agents on reasonable advance  notice during normal working hours at the offices of the association  or its managing agent. The association shall not release the unlisted  telephone number of any owner. The association may impose and collect  a reasonable charge for copies and any reasonable costs incurred by  the association in providing access to records.