Woodmen Hills Filing 6, 8 & 9 Covenant Rights

 
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20 August, 2010

After a long hiatus from posting on this page, I am going to bring things up to date.  Please see additions to the Timeline of Facts for dates and document links.

The battle is over - As reported by Lynne Bliss on her FalconLady.com article the Metro District has finally received (or listened too) legal Counsel stating that they should not be involved in Covenant Enforcement.  I applaud the decision to follow this advice, though I wish I could have seen certain peoples faces when they had to swallow the truth of the matter.  The question remains "What took you so Damn Long?"  I will not get into the finger pointing game at this point.

Some other facts I want folks to know:

  • In June the Court of Appeals upheld and I believe substantially expanded the rational for the decision that the Metro District had NO authority to do what they were doing. (details in Timeline of Facts)

  • In a quick look at the Covenants for other filings, similar wording was found that LIMITED the timeframe that the Builder (Declarant) could make an assignment for enforcement.  I believe a closer look would prove that those limits had long expired in most filings BEFORE the Builders assigned rights to the Metro District.  This improper chain of right assignment (custody if you will) would probably have made the assignments for those filings invalid even if they did not convey rights as a quit claim like ours did.

  • I also feel that the continued payment of the Covenant Boards expenses to do covenant enforcement was a violation of state statute and the 2009 20, May ruling of Judge Schwartz.  It could be argued that since the funds were coming from the General Funds of the Metro District, they were in essence still collecting a fee which they had been told was not legal to collect, and there by still doing covenant enforcement against a Judges order.

  • I was approached on many occasions to file a class action suit against the Metro District.  In an attempt to help 'heal' the area, I had set a deadline of 31 August to see if the 'new' board would act as many stated during the campaign for their positions.  I am happy they finally looked into the matter, though I will still bet the majority of the board members STILL have not acquainted themselves with the facts of the case.

  • Contrary to what some might think - neither I, nor any of the others involved in this law suit liked the idea of 'suing ourselves'...  However, we felt it was more important to stand up for our rights and the right way of doing things.  It is a true fact that the freedom enjoyed by the majority, is owed to the minority who are willing to fight to defend those rights.

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09 December, 2009 - I apologize for not being able to offer an interactive board, I do not have the software or time to maintain it.  There is a discussion on falconlady.com and I will respond there if you wish

08 December, 2009 - Letter to the Residents with SPECIFIC language that will allow us to keep Covenant enforcement, but return to a common sense approach for enforcement:

Specific Proposed Changes to the Covenants: Article II. Definitions – the following section shall be added.

 - "Neighbor" shall be defined as Property bounded by this Declaration; with whom you share a property line; or if your property lines were to extend to the center line of a street you would share a property line. Each Property will be allowed One Vote.

Article VII. Miscellaneous – the following sections shall be added.

 - A Variance to articles contained in Covenants may be granted if a Property Owner receives written permission from a simple majority of their Neighbors for said Variance. Variance to allow for items of a permanent structure must be Recorded by the Owner with the County and may not be rescinded.

 - A Variance for a non-permanent structure or item may be rescinded by a simple majority of the Property Owners Neighbors and must follow notice of at least 30 days, with 30 days minimum to correct the issue before self-help litigation can begin.

 - Legal recourse may be pursued by a Property Owners Neighbor(s) if: (a)real damage to the Neighbor can be established. (b)A simple majority of the Property Owners Neighbors have given written permission or enjoined the legal action.

 - Collection of fees for Covenant Enforcement, or any other ‘service’ provided for, or mentioned in these covenants is invalid without a modification by the Property Owners to these Covenants for that purpose.

 - These modifications to the Declaration shall supersede all known prior duly Recorded articles (El Paso County Clerk #s 200136133 and 203034235). Any ambiguity construed or inferred will defer to these articles.

Agreements reached with the Covenant Board with the following 'neighbors' in our filing:

Name Address Instrument
Jerry & Betty Medford 7836 TOMPKINS RD 209064049
Mark & Phyllis Zinn 8428 BOHLEEN RD 209074467
Eugene & Jodi Cozzolino 7659 BULLET RD 209074469

I hope these people realize that counter suits 'could' be against them personally for actions taken by the Covenant Board.  I know that will be my 'preferred' direction of action if available.

Full text of the letter and a blank proxy can be found HERE

Meeting with our Attorney

December 16, 6:30 - 9:00 PM

Woodmen Hills Elementary Cafeteria

This will be to discuss the process, pros and cons with modifying the Covenants in light of the Actions of the current incarnation of the Covenant Management Board.  We will also be able to offer advice to other filings seeking to do the same.  This is NOT a general complaint session, but a working session for a constructive exchange of information. 

Based on a discussion I had the night of December 7 with Jan Pizzi, I will be seeking residents from our and other filings to join with me in discussions with the Metro Board on how to fix the current process.  She has agreed to take the question of funding the current Covenant Board to the Metro Board this week to see if we can get the process STOPPED in it's current form until a better (and I believe legal) process can be formed.

**** This never happened - Jan Pizzi never followed through with our discussions.  I have NO CONFIDENCE that she ever acted in good faith on this account. ****

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RECALL ELECTION SET

25 August, 2009 from 0700 to 1900

11720 Woodmen Hills Drive

AKA the Community Center West

Absentee Ballot Info

JUST VOTE - It's Your Right

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05 August, 2009 - Proxy Letters sent to all residents in Filing 8 and a Portion of 9 via US Postal Service.  Please see Proxy Process Tab for detail information.  Questions should be submitted to: woodmenhills@warneent.com

A Question and Answer Page will be setup to help folks understand.

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24 & 26 July, 2009 - There appears to be a site called citizens4wh.org who are 'supporting' Jan in the recall, and providing some 'misinformation' on the 'Covenant Issue'.  They purport to say that all filings were asked to participate in the forming of the Covenant Management Board.  They forget that the only people asked about this were in Warren Management at the time and there was NO contact with anyone in this filing.

As to the Judge's Ruling - They assert that it only applies to the 5 houses in the lawsuit.  The Judge stated "Accordingly, the Plaintiff's {that would be us} cross-motion for summary judgment is GRANTED."  There is NO partial victory in this for the Metro District or Covenant Board.

So what was the Cross Motion {our motions request} as in THIS DOCUMENT:

  1. That the First Assignment is void, voidable or invalid; {This conveyed Authority from the builder Melody/Dr Horton to the Metro District}

  2. That the Second Assignment is void, voidable, or invalid; {This conveyed Authority from the Metro District to the Covenant Enforcement Board}

  3. That the Amended Covenants are the controlling document for the Owners in Woodmen Hills Filing Number 8 and a Portion of Filing Number 9;

  4. That the Amended Covenants have no mechanism for covenant enforcement or assessment of fees against Owners for covenant enforcement;

  5. That Woodmen Hills Covenant Management Board, its successors or assigns, and/or the Woodmen Hills Metropolitan District, its successors or assigns, have no authority to attempt enforcement of the Covenants and no authority to assess penalties/fines for alleged covenant violations;

  6. That Woodmen Hills Covenant Management Board, its successors or assigns, and/or the Woodmen Hills Metropolitan District, its successors or assigns, have no authority to cause an assessed “covenant fee” for covenant enforcement be charged to Owners in Woodmen Hills Filing Number 8 and a Portion of Filing Number 9 and as such a refund of all paid “covenant fees” plus interest shall be made to the Warnes, Mr. Cuffe, the Villanuevas, the Surbers and the Heltons;

  7. That Declarant or Declarant Horton no longer has any legal right, title, interest, power or claim in or to the properties, covenants or covenant enforcement affecting the properties associated with Woodmen Hills Filing Number 8 and a Portion of Number 9 and as such cannot make any assignments of any right, title, interest, power or claim in or to properties, covenants or covenant enforcement associated with Woodmen Hills Filing Number 8 and a Portion of Filing Number 9 to third-parties;

  8. For Charles Warne’s, Bridget Warne’s, Brandon Cuffe’s, Norman Villanueva’s, Nancy Villanueva’s, Howard Surber’s and Luana Surber’s , and Travis and Karen Helton’s costs incurred in this action pursuant to C.R.S. § 13-51-114; and

  9. For such other and further relief as this Court deems just and proper.

This ruling applies to ALL houses Covered at a minimum by our Covenants and Possibly extends to all properties covered in the 'Assignment' the Metro District received from Dr Horton/Melody Homes.  They need to look for the following in their Covenants:

  • Declarant shall have, retain and reserve certain rights as hereinafter set forth in this Article VI from the date hereof until l20 days after the date upon which one hundred percent (100%) of the Lots have been conveyed to Owners other than the Declarant.

How other can say it only applies to those in the suit is beyond me.  Again, the Assignment used to convey authority was found to be invalid.

You will also notice in the documents we never stated that there were no Covenants, only that the Metro District and Covenant Enforcement Board did not have the right to exercise them or charge a fee.  We were to be a 'home rule' community.  If it was important enough a 'resident' could bring suit to another resident - not have someone else or another entity pay their legal fees for them (see the 7 July note on this).

Legality of Covenant Enforcement by an entity empowered by the Metro District - I am no lawyer but according to Jan Pizzi's site the 'lawyers' say they can fund this from O & M...  Are these the same lawyers who in Feb of 07 knew there were no rights to be assigned from DR Horton for Covenant Enforcement {Exh1, Exh2}, but said they could legally enforce Covenants in this filing?  I don't think they have the best track record for being 'right' on this issue, but you decide.  Read CRS 32-1-1004(8)(b) which states:

  • The board of a metropolitan district shall have the power to furnish covenant enforcement and design review services pursuant to this subsection (8) only if the revenues used to furnish such services are derived from the area in which the service is furnished.

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07 July, 2009 - Yesterday the WHMD and WHCMB filed an appeal to the Judges' Ruling.  Since my attorney has asked me to be careful of what I say, I can not comment on the 'merits' to this appeal.  Please read the documents in the timeline and decide for yourself.

ALSO - today the Covenant Management Board stated they have assignments from home owners in most filings and are going to start to enforce covenants that way.  I wonder if they informed those people who made the assignments that if there is a counter suit it will be their house and property that will be at risk?  I didn't think so...

Someone may also wish to look into the legality of what the Covenant Board and Metro District are doing.  For details please see Dave Hightower's write up on it on his 'The Answer From the District'.

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Judge Rules Against Woodmen Hills Metro District and Woodmen Hills Covenant Management Board.  Assignments from Melody/Dr Horton Invalid - they convey no Authority.  This means they have no right to enforce covenants or collect the Covenant Enforcement Fee - nor did they EVER have that right.

Documents can be found in the Timeline of Facts as they were used in the case.  I am building a catalogue of documents that will be in the Document Links Soon.

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13 June, 2009 - What am I going to do now?  I have had several folks ask me what I am going to do now...  Well, I am going to get back to doing things I wanted to do last summer.  More landscaping, storage, look at some fence changes, maybe another out building...  All of this was put on hold last year when I decided it was more important to fight for what was right than the other things I was thinking about doing.

What am I going to encourage 'Others' to do - get involved.  Don't let these people bully you and run things against what is right.  I know they are not going to refund the Covenant Fee they should never have collected without some form of legal action against them.

This is YOUR NEIGHBORHOOD - don't let a few goose stepping individuals determine what is right for YOU.

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27 May, 2009 - I have had many questions as to who's Assignments are invalid.  The legal definition found at the end of the Assignments are:

  • Woodmen Hills Filing No 6, Lots: 224-350, inclusive
  • Woodmen Hills Filing No 8, Lots: 298-303, inclusive
  • Woodmen Hills Filing No 8, Lots: 362-498, inclusive
  • Woodmen Hills Filing No 9, Lots: 503-544

25 May, 2009 - Added Timeline of Facts with Links to Relevant Documents.  It is IMPORTANT to note that the Assignment from Melody/Dr Horton to the Metro District was found to be invalid.  Filings impacted are noted at the end of the Document.

Judge Rules 20 May, 2009 - There were NO RIGHTS to transfer covenant enforcement from Dr Horton/Melody Homes to the Woodmen Hills Metro District and subsequently to the Woodmen Hills Covenant Management Board.  There are some slight inconsistencies with the details in this order, but it does not change the fact that the Metro District and Management Board received NO RIGHTS via the assignments from Dr Horton / Melody Homes.

Please be patient - I will be updating this site over the next week with documentation used in this case for those 'OTHER Filings' to review based on Judge Schwartz's ruling on 5/20/2009.

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In English - what does this mean?

A. The Melody/D.R. Horton Contract conveyed NO AUTHORITY to the Metro District and as such:

B. The Covenant Management Board Contract is Neither Valid Nor Enforceable upon the residents of those filings.

C. This makes the Covenant Enforcement Fee collected by the Metro District INVALID as they do not have / nor never have had a valid contract to provide services as required by Colo. Rev. Stat. § 32-1-1001(1)(j)(I).

A couple comments... (Sorry - I planed to keep this factual and opinion on another page, but can not resist)

These filings should return to the self governing form they enjoyed before outside busy bodies stuck their nose in where it didn't belong.

They never thought anyone would stand up to them and call their bluff - I'll sue you seems to be the battle cry for the Metro District and their cronies on the Covenant Enforcement Board.  I don't know who they think they are fooling by 'saying' they are separate groups - anyone with a half a brain can see they are two peas in a pod.  They are not even smart enough to have separate legal counsel, and don't seem to understand the concept of 'conflict of interest'.

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Contact information - please email woodmenhills@warneent.com to be on the information list.  Please provide your Name and Address with this request.

Please see the El Paso County GIS for more specific information on your property.  We believe those impacted are listed on the 27 May, 2009 Entry.

Thank you

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My intention is to provide information based on facts - I will state that my bias is to individual rights, but I will not knowingly provide false information.  My goal is to educate and let YOU make informed decisions as to how you what your life to be run.

 

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