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