The Highland County Press posted this letter to the editor on 8-21-2012 with the following heading:
Residents pleased with decision on Enchanted Hills Community Association
After filing litigation against the Enchanted Hills Community Association in June 2011, we have finally received a judgment entry from the Highland County Common Pleas Court, from Judge Steven Beathard, in our favor.
The main complaint and testimony of plaintiffs in this lawsuit identified how the association was illegally charging all the members exorbitant fees, dues and additional assessments. These actions were found to be in conflict with the established covenants, restrictions and bylaws of the association.
At the trial in March 2012, the association board members, president and attorney could not provide the necessary proof or any justification for the authority to make changes or increases to any association fees.
It was proven by the plaintiff's attorney, Lee Koogler (with the assistance of William Peelle), by his presentation of evidence, that the association had no authority to alter any dues or fees without a 60-percent vote of all members in writing.
The board president, Margaret Brunner, admitted in her testimony they did not have the required 60 percent since 1973. Therefore, all dues were ordered to reflect the 1973 level of $25 for the first lot and $5 for each additional lot. Also, the attempted charges filed by the board president since that date were deemed null and void by Judge Steven Beathard, presiding over this case.
This litigation did not address the plethora of complaints we had initially presented. It was determined that our priority was to first address the unjustified fees being imposed on the members.
We plaintiffs wish to extend kudos and our heartfelt thanks and gratitude to Mr. Koogler, for a tremendous job well done.
Judy and Tony Keltz, Sr.
I moved to Enchanted Hills in June 2009 and have attended the last two annual meetings. The association has a restriction that says no home less than 1,200 square feet, excluding open porches and garages, may be placed or erected on premises. But to their credit, the board voted to give me a waiver and allowed me to place my singlewide mobile home on a quarter acre lot that I purchased in Enchanted Hills. The realtor who sold me the lot also lives in Enchanted Hills. I told him I was looking for a place where I could relocate my singlewide. I had lost my job in Oct 2008 and decided to just retire. So I got the waiver before buying the lot. I actually didn’t know that they had exclusionary zoning. The realtor just told me to email him some pictures of my singlewide because the board wanted to see what I wanted to bring in. I went from paying $3,720/yr in lot rent to the mobile home park to paying $662/yr in property taxes after I moved my singlewide out of the mobile home park and onto this residential lot.
After moving in I eventually got a list of all their Covenants and Restrictions. I missed the first annual meeting in Aug of 2009. But early in 2010 the association sent around a revised list of covenants and restrictions for members to vote on. I voted no. I sent them a letter on June 12, 2010 and suggested the following preamble:
The American Dream is to live in a home of one’s own choosing. Enchanted Hills Community Association shall establish no covenant or restriction that runs contrary to this dream. For example, no exclusionary zoning or square foot restriction shall be imposed. This preamble is superior to any other covenant or restriction and overrides any other. That being said, 60% of the Enchanted Hills votes, as defined below, have established the following covenants and restrictions to apply to Enchanted Hills Lots:
Well they did not get 60% yes votes. So I wasn’t the only one who voted no. When I sent in my no vote I included comments on specific items. I advised them that the government that governs least is the government that governs best. Here are just a few of the nit picky items that they wanted. My biggest objection was the 1,200 square foot restriction and I went into great detail about why that was unconstitutional. You needed a permit prior to any concrete work. Hell I put concrete all around my skirting to keep squirrels from getting under it. I put some concrete down by my mailbox after the mail carrier complained about the mud. I set some posts with concrete to put up a TV antenna. I put down some concrete by my front steps. I had already done all of this.
They didn’t want to allow any sheds or trailers in any form. Seems like they are trying to keep people from enjoying their lots. We are right next to Rocky Fork Lake and people bring boats and pontoons on trailers to use on the lake. You might want to have a small shed for storing a lawn mower etc. In fact I already did have a small shed on my lot when I bought it. I already had it removed but that was just my choice. I wanted the right to put up another shed if I choose to do that in the future.
Any structure or building constructed of wood had to have all exposed surfaces stained or painted with at least two coats of stain or paint. Well I had a deck already on the lot that I placed my singlewide next to. I just put on some clear Thompson’s water seal on it. So it just had the color of aged wood. I didn’t want to cover that up with paint or stain. I like the color of natural wood.
You get one vote per lot. Some people owned more than one lot so they got more than one vote. But they wanted to count anyone who didn’t vote as an automatic ‘yes’ vote. What that meant is anything they proposed would pass because many people didn’t bother to vote. There are 795 lots and last time they had a vote to raise dues there were 105 yes votes and 38 no votes. So you can see the potential for abuse here. The way the rules were written was that you had to get 60% yes votes recorded in writing in order to change anything. And they hadn’t done that since 1973.
They wanted the board of trustees to be able to ‘promulgate rules from time to time for the betterment of the community.’ So they wanted to be able to just dispense with voting altogether. They also ‘reserved the right to enter upon any vacant or unattended lot for the purpose of improving the general appearance, mowing weeds, removal for storage until claimed by Owner any building structure or equipment found by EHCA to be in violation of these restrictions without being classified as a trespasser or being liable for damages to any property so removed and member is held responsible for all expenses.’ So a zealous future board could go crazy. Suppose I go to visit my dad for a week. I come back to see my singlewide gone. They jacked that sucker up, slapped on the wheels and towed it away because it was in violation. I could happen if these rules were adopted.
‘In the event EHCA or its assigns removes any property of an Owner from any lot, either personal or real, found to be in violation of these restrictions, it shall cause such property to be stored and given notice to Owner by certified US mail to the last address shown on the lot owners purchase contract advising the Owner to pick up their property. 90 days after such notice if property has not been claimed by Owner then ECHA shall either sell or dispose of it. In the event it is sold the sale price less 10% shall be credited to the Owner’s contract and to the cost of the removal or if his lot dues are paid in full and all costs of removal are paid in full, then it shall be paid to Owner. EHCA shall not be liable for any loss of property while property is in storage, for destruction of property so held or for sale at less than value. The remaining 10% of sale proceeds shall be paid to EHCA.’
So they could then sell my $30K singlewide for $10K and keep $1K for themselves. How lovely is that?
‘No individual water well shall be allowed on any lot.’ So what if you wanted to have a well for watering your garden or lawn?
‘The Board of Trustees shall have the right to levy additional emergency fees, or assessments/rental fees, associate fees as the Board deems to be in the interest of the EHCA for one year. Then must be approved by a majority of the members in good standing so voting.’ So instead of 60% of 795 now they only need a simple majority of those voting. So if only 100 votes are cast then 51 votes would pass it. If you hadn’t paid your dues then you were not a member in good standing and couldn’t vote. And even though this new list didn’t pass, this is how they acted. They were suing all the people not paying dues, passed an emergency levy to fund it and then when the vote was taken a simple majority of those voting was all that was needed to make it permanent.
Talk about a power grab. Well the dues were only $75/yr so most people weren’t concerned about it. But there certainly was a potential for abuse here. Thank god these new rules didn’t pass. I sent my first letter to each member of the board. A few days later one of the board members stopped out in the road in his pickup when I was out mowing my lawn. He motioned me over and then gave me a lecture about not sending any letters directly to board members. He said just send any letter to the board as a group to the association address. He was talking like one of the characters from the movie “Lonesome Dove” and said “I’m not gonna have it.” And “I’m gonna go home, get your letter and give it back to you.” So he was upset. I guess he thought better of it after he cooled off because he never did come back with my letter. All I said was “OK”.
At the annual meeting on Sept 10, 2011 they wanted us to vote on ‘Adopting State Laws for Homeowner’s Association Senate Bill number 187 effective September 10, 2011. (This Bill was passed by the 128th General Assembly to run Home Owner’s associations in the State of Ohio. This is a law.) “Any planned community in this state is subject to this chapter.” But any existing community had to approve it for their community for it to take effect. Look what Sec 5312.05 (B) says. “A vote to terminate the applicability of the declaration and to dissolve the planned community requires the unanimous consent of owners.” At least under our old rules we could dissolve the association with just 60% consent. But we needed 60% consent of owners under our old rules to pass these new rules and they didn’t get 60%. However under these proposed new rules it would take 75% to amend the declaration and bylaws and not just 60%.
The trouble with planned communities is that they seem to think they are not in the United States and that our constitution doesn’t apply. This is the argument I get from some people about ending exclusionary zoning. They want it to be a local matter. Just like slavery was a local matter, state’s rights.
I sent my next letter to the board on November 5, 2011. That letter follows:
Regarding the annual meeting vote as reported in the letter that accompanied the 2012 dues and membership fees. It was my understanding that a 60% yes vote was needed to change the dues and fees or to adopt State Laws for Homeowner’s Association. There are at least 486 owners and 795 lots with one vote per lot but only 93 yes votes were cast to adopt new State Laws for Homeowner’s Associations and only 105 yes votes were cast to raise membership fees. In both cases this is substantially less than 60% of 795 possible votes.
People who live in this community are a part of this community by geography and should be allowed to vote regardless of whether or not they are paying dues. No one forfeits one's constitutional rights just because he/she lives in this community. How would you like it if 93 people voted to make this a Muslim community, or a Jewish community, or a Catholic community? But we have freedom of religion. That means freedom to have no religion if we choose. We also have freedom of association. That means we have the freedom not to belong to an association.
As I hand wrote on my 2012 dues invoice, I don’t have a problem with enforcing reasonable restrictions against anyone living in this community. For example if a motorcycle gang bought a home here and wanted to make it their headquarters then we’d all be within our rights to point out to them that this is a residential community and we only allow a single family to occupy a residence here. Similarly if someone erected an incinerator and wanted to burn trash 24/7 then we‘d be within our rights to point out that this is a residential community and we need to be able to breathe freely. And as I’ve expressed several times before, I believe any square foot restriction on the size of one’s home is a terrible offense against one’s right to life, liberty and the pursuit of happiness.
As a matter of just plain decency I am asking the Board of Trustees to stop wasting money by taking people to court for simply exercising their constitutional right to choose not to belong to this homeowner’s association and not pay dues or fees. Instead of serving the residents you are persecuting them. We could probably exist on just two lots. One lot for the office and one lot for the waste site. Sell the extra space. That would save on property taxes and on mowing. You are wasting money. If enough people aren’t willing to pay for what the waste site actually costs then drop it. Put the association in hibernation. The association could still always sue for a serious violation as I’ve noted above. These residents (over 100) not paying dues are true patriots and the board should be ashamed for harassing them. So just because someone pays his dues doesn’t mean he approves of your actions.
So was I delighted when I saw that these patriots won their case? You bet. America needs more people just like them.