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| 06/ 4/25 04:48:09 | [ Login ] [ Main index ] [ Post a new message ] [ Search | Check update time | Archives: 1, [2], 3, 4 ] |
| Subject: Letter to the board that I will be submitting | |
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Author: Butch Huber |
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Date Posted: Mon, Sep 14 2009, 11:02:32 In reply to: Tired of watching this 's message, "Can't make it to the meeting" on Sun, Sep 13 2009, 20:27:46 To the Board of Directors of Willoughby Station: It has come to my attention that the Board of Directors of Willoughby Station has decided, without consent of all of the homeowners of Willoughby Station, to permanently remove the basketball backboards and poles from the common area. I have come to understand that the cause of such a decision is the number of unruly and undisciplined adolescents who frequent the common areas and because the basketball courts are being used by people who do not live in Willoughby Station. While I applaud your desire to tackle the problem of adolescent behavior and uninvited guests, I believe you have overstepped your authority, you have violated my Constitutional Rights, and you have egregiously violated the trust of the homeowners of Willoughby Station. While the by-laws give you authority to manage the Common Areas, I believe it is quite a stretch to surmise that the by-laws give the Board of Directors carte blanche to remove an amenity without homeowner’s approval. It is also “logically”, and quite possibly “legally”, necessary that the Board of Directors of Willoughby Station would need permission from all of the homeowners of Willoughby Station, not just a majority, and also would need official approval from the City of Mt. Juliet before the Board would have authority to remove an amenity. The Board of Directors of Willoughby Station obtained its right to exist and its reason for being from the government of the City of Mt. Juliet and as such it is an extension of the powers, rights, duties, privileges, and authority of the Board of Commissioners of the City of Mt. Juliet. The Board of Directors of the City of Mt. Juliet granted the developer of Willoughby Station the right to develop this neighborhood based on a set of Preliminary and/or Master Development Plans. Customarily, as I understand it, along with those plans are submitted the Covenants of the Neighborhood and perhaps the bylaws of the association. The Mt. Juliet Board of Commissioners approves the neighborhood, again, as I understand it, with the covenants and bylaws included. In other words, when the Board of Commissioners of the City of Mt. Juliet granted the developer permission to develop a PUD, they at the same time approved the covenants and bylaws of the association. Because the Covenants and Bylaws were approved by the Mt Juliet City Commission, either directly or indirectly, no provision of such covenant or bylaw may supersede or overrule any citizen’s or homeowner’s Constitutional Rights. What I am telling you is that the Board of Directors, no matter how well intended, cannot enact any legislation, make any decision, or take any action that in any manner what-so-ever, or to any degree what-so-ever, infringes upon the Constitutional Rights of a home-owner. This is true no matter how trivial or miniscule the infringement may seem. Moreover, the Board of Directors of Willoughby Station has to make its decisions under the same restrictions and same limitations as the Government of Mt. Juilet. I say that because no government authority has the power or authority to grant another agency or organization more power or authority than the government authority granting the power or authority itself enjoys. To take the position that the Homeowner’s Association’s Board of Directors has any authority that is greater than the authority of the Board of Commissioners of Mt. Juliet would be absurd considering that the Board of Commissioners of the City of Mt. Juliet granted Willoughby Station Homeowner’s Association the authority to exist and not the other way around. When a Preliminary Master Development Plan is submitted to the Planning Commission, it ordinarily has included the Common Areas planned in them along with the proposed Amenities. The Planning Commission either recommends approval, recommends disapproval or recommends approval with conditions, to the City Commission who then approves or disapproves the Planned Urban Development Project based on what is provided to the Commission by the Developer. I do not know what was included in the Preliminary Master Development Plan, nor do I know what was included in the Final Master Development Plan, for the Willoughy Station Development Project, but it really isn’t all that important to know what was included and I will explain why. Before any of the structures, known as Amenities, were constructed, either the Developer or the Homeowner’s Association had to file for and receive a building permit from the City of Mt Juliet, which then gave the Developer or the Homeowner’s Association the right to build. Because Willoughby Station is under the authority of the City of Mt. Juliet, by granting permission to build an Amenity the city is also at the same time granting that the homeowners may be assessed a fee for such improvement, either by a continuance of the fee currently being charged or through increased fees. Making the distinction between “fees” and a “dues” is important. I am, as a landowner, and Homeowner, required to pay the Association “fees”. These are not “dues” in that I have an option whether to pay them or not, they are “fees” in that I do not have the option not to pay them. If I do not pay them the homeowner’s association has the right to place a lean on my home and even possibly foreclose on my home. The power to collect fees, a power granted to the Homeowner’s Association by the City of Mt. Juliet, under the power vested in it by the State of Tennessee, raises what I pay every year to WSHOA to the truest form of a “tax” upon the land except that the property purchased with such monies becomes an asset of mine personally as evidenced in our covenants and bylaws. This, in my opinion, is no small matter. If I were paying “dues”, perhaps this whole issue would be different, however, I am not paying “dues”, I am paying a fee and such fees are being used not only for maintenance of my assets, they are being used to pay for Amenities and property that becomes partially my asset and a part of my estate. I am forced to liquidate my assets or pay this fee for fear of having my home taken from me for non-payment. If the Amenity was built at the expense of the Developer the cost of such Amenity was logically included in the cost of the lots on which our homes were built. That position is made clear in covenants of the Association itself. If the Amenity was constructed after the developer turned over the Common Area to the Homeowner’s Association the cost of construction was logically paid for from our annual fees. Either way, the Developer or the Homeowner’s Association obtained the right to build by the City of Mt. Juliet , and the City of Mt. Juliet in turn derives its powers and authority from the State of Tennessee and the cost of such Amenity was ultimately born by the homeowners of Willoughby Station. Therefore, because the City authorized the collection of such fees, for the purposes it has granted such collections, and because the City couldn't arbitrarily authorize such fees, the City must logically have a continuing interest in the Common Areas of this neighborhood, and as such, has a duty to protect and preserve the common areas and the assets it authorizes by-way of building permits, which it also authorizes. Let me recap what I have told you thus far so that we are crystal clear. 1) The City of Mt. Juliet granted the Willoughby Station Homeowner’s Association the right and authority to exist. The Homeowners of Willoughby Station didn’t grant such authority. The Developer didn’t grant such Authority. The City of Mt. Juliet granted the authority. Moreover, the City of Mt. Juliet “required” there to be a Homeowner’s Association prior to approval of the master development plan for the community. The requirement that there be a Homeowner’s Association raises the whole issue to a much higher level, and I say that because, as I have pointed out, the City of Mt. Juliet cannot grant any authority or power to any person, business, corporation, organization, or other institution or entity when such authority or power would be greater than the authority or power of the Board of Commissioners of the City of Mt. Juliet. 2) The homeowners of Willoughby Station have paid for any and all Amenities included in the Common Areas of Willoughby Station, either directly or indirectly, and therefore they all individually own such Amenities on an equal share basis. In other words, if there are 759 memberships in the Willoughby Station Homeowner’s Association then each member owns 1/759th of the Common Area and its improvements. That ownership becomes part of their estate with full rights and privileges preserved. 3) The city of Mt. Juliet has a continuing interest in the common area, including all of the amenities, and it has an obligation to protect and preserve them. Those Amenities required their approval, either directly or indirectly, and they require their approval to be removed. Because the city must operate under Dillon's Rule, I believe that they can't give implied consent to removal of an asset, but must rather give direct assent by a vote of the Commission before an Amenity can be legally removed, and then only when 100% of the land owners are in agreement. Enjoyment of one’s assets are always conditional, however, there are Constitutional issues at stake whenever one person interferes with the rightful enjoyment of another’s assets. The City of Mt. Juliet has to operate under the rules and procedures established by the state, which means that the City of Mt. Juliet is limited in what it can approve or disapprove, and as such, by default, so is the Willoughby Station Homeowner’s Association. The City of Mt. Juliet cannot arbitrarily take a person’s possessions or infringe or interfere with the enjoyment of one’s assets unless the City is specifically Granted such authority by the state, and then only under provisions of the Constitution of the United States and the Constitution of the State of Tennessee. Since the City has no authority to arbitrarily take a person’s possessions or infringe or interfere with the enjoyment of one’s assets, neither does the Homeowner’s Association Board of Directors have such rights. This is true even in the presence of contrary provisions in the Homeowner’s Association Covenants and/or bylaws, and I say that because any provision of any contract that is unconstitutional is automatically null and void. So, even if the bylaws and covenants specifically granted the power and authority to the board to remove an amenity without homeowner approval, and even if the Board of Commissioners of the City of Mt. Juliet were to say that it is okay, it is, in my opinion, an “unconstitutional taking” of property and/or assets to do what you have done. If I am correct in my position, you may well have, and probably have, violated my Constitutional Rights. If the Homeowner’s Association had derived its authority to exist merely from a group of people who decided it would be nice to have a club this may all be different, however, that is not how Willoughby Station came to be, so I believe my position is valid and correct. The State of Tennessee granted municipalities the right to develop property under Planned Urban Development (PUD) provisions with certain conditions and limitations. Cities have been violating laws for quite some time in the approval of PUDs for some time now. The City of Mt. Juliet, in my opinion, has been on of those cities that has violated laws in their approval of PUDs as well. However, just because they allow or require things that are in violation of the law and get away with it does not mean that there are not illegal activities going on. It is of no matter, defense, and certainly not an absolution of accountability on the part of the City or the Homeowner’s Association, when a person’s rights have been violated, that the City does things like this all of the time. I have inalienable rights granted to me under the Constitution of the United States, which includes the right to not have my possessions taken from me without due process. No governmental authority of any nature has the right to take away my assets without complying with every tenet and provision, every jot and every tittle, of the Constitution of the United States of America, when such governmental authority is derived by, from or through powers and authority granted by the official, public governments of the United States, the states, regional, county, and/or municipal official governments of the people. Willoughby Station’s Homeowner’s Association is one of those governmental authorities that have obtained its power and authority from an official, public, government, therefore, Willoughby Station’s homeowner’s association may not violate my Constitutional rights. I demand that you reinstall any amenity that has been removed under and/or by your direction and I demand that you do so immediately. Further, I demand that you refrain from removing any other amenity or making any decision that would devalue or take any asset from me, or that would restrict the rightful enjoyment of my assets, without my consent. I believe, in order for you to remove an asset of mine you need my consent unless you are specifically granted such authority, and only when such authority does not infringe upon my Constitutional Rights. What that means to you is that, unless you have 100% of the Homeowner’s permission to remove an Amenity you don’t have the power or authority to do so and you could be subject to lawsuit and possible other charges if you do so. Protection and preservation of individual Constitutional Rights is paramount and any infraction of such rights should never be taken lightly. Continued usurpation of my rights, or impingement of my rights, or denial or infringement of my right to enjoyment of an asset of mine that I otherwise would have a right to enjoy, after your receipt of my demand, shall be considered by me to be gross negligence on your part in the execution of your official duties as a member of this board. As a board member, you have indemnification only for those decisions and actions that are not considered gross negligence on your part. If you enjoy indemnification I am personally responsible, along with the other members of the Home Owner’s association, for all of your legal fees, court costs, fines, penalties, and settlements and/or awards if, in a court of competent jurisdiction or through arbitration, it is found that this board has committed a violation of a homeowner’s rights. After having received this demand letter, and possibly even without it, any homeowner of Willoughby Station could take the position that you are grossly negligent for having violated a homeowner's rights by having removed the backboards. As a homeowner, I do not wish to pay any cost associated with any legal tangle this board may find itself in regarding the removal of the basketball backboards or any other decision to reduce the amenities available in the common area. Again, I applaud your effort to rectify what you believe are untenable situations in the common areas, however, interfering with the rights of homeowners in the rightful enjoyment of their assets is not the way to approach this issue. Further, it could potentially cost me great sums of money to defend you against lawsuits if you refuse to reverse your decision and put the basketball courts back where they were, and I certainly do not wish to pay such charges. Respectfully, Harold C. 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| They won't read it | Tired of watching this | Mon, Sep 14 2009, 11:09:06 |
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