Corporations and Cape George

I just finished reading the Cape George Board Meeting Agenda for Jan 14 2016. One item caught my attention:

     President Richard Hilfer and the Manager have developed
     a list of law firms that specialize in providing service
     to homeowner associations and will be developing a request
     for proposal letter to assist with selection of a new
     attorney for the corporation.
 
It's still weird to think of  Cape George as a corporation. Actually, it is and, for many, the word conjures up a soul-less, arrogant entity concerned only with profit, running roughshod over enemies and shareholders alike,  with imperious Boards and CEO's doing virtually anything they damn well feel like.

I guess you can blame it on the media. It's difficult to pick up a newspaper without seeing stories of corporations fined for civil and more often criminal misbehavior; corporate officers under investigation, indicted, dismissed, or retiring suddenly to "spend more time with family"; stockholders defrauded; employees exploited; whistle-blowers abused and unjustly fired.


You might feel that's unlikely to happen here in Cape George. We're a feel-good community. Friendly residents, plenty  of volunteerism, lectures, games, cookout's. No need to bother pretty little heads with details of HOA's, CCR's, corporate governance, ad nauseum.  No controversy in paradise, right?


But take a peep behind the scenes. As mentioned here and here, this Board has ignored covenants; openly championed a former Board member who was rebuffed by the 2003 Board in her attempt to force a resident's old-growth trees to be clear cut;  ignored advice from their recently retired attorney as well as multiple other lawyers; and then  recklessly reversed the 2003 Board's ruling.

The Board's tactics -- all very corporate like --  were to dodge  the  resident's questions, stonewall her requests, deny an appeal, and bank that she would quickly take down the offending "hedge" of old-growth trees. When she asked for relevant archive files, she was told that they were "missing" from the office. Very Nixon-esque.

Meanwhile, let fines are pile up and suggest, as the President did in a newsletter and in a letter to an atty, that the complainants had "offered to bear the cost of removing all the trees". He conveniently omits that the offer was contingent on clear-cutting all of them. 

Even the owner's compromise offer to fell a couple of  trees and "window and thin" others per the Building Rules was rejected out of hand. Only when the owner felled all but two of her old-growth trees, was  the Board's notion of "hedge" justice served. Tellingly, during the massacre, the Cape George manager was seen conferring with the former Board member a block away. 

The 2003 Board however had unanimously dismissed a "hedge" complaint against the same trees and cited the lack of "timeliness" and "damage to a member's property" as reasons. They certainly did not dismiss the complaint with "prejudice" to open the door for the current Board's ruling.

Why did previously exempted old-growth trees become fair game? Because, the current President overruled the Cape George atty's advice and declared "trees grow and change" which rendered the 2003 ruling magically invalid.  His  reversal creates an Alice-in-Wonderland kind of legal whimsy. That's why rogue corporations seem to spend so much time in court.  An atty. confessed he was totally "baffled" by the President's remark.
 
 In some murky backroom, the Board also arbitrarily and without notice to the community changed the interpretation of a "hedge" to be as little as "two trees with commingling foliage". To obfuscate when the changeover occurred, the Board President told concerned dissenters  that the two-tree-commingling rule had been in effect for "years". Cape George's manager then slipped and reminded him that the new interpretation had been in effect only a few months.

When subsequent letters of protest to the Board's actions were
mailed to the community, the President ratcheted up his response
by drafting a letter to a couple of dissenters.  "What status do you have to intervene in a matter between the Board and the owner on Sunset Blvd" the President demanded in his letter. Really? Sixteen residents and others with atty's opinions in hand, had no right to question his corporate wand of authority...

To send out a bullying letter is hardly good corporate governance.
This response from the President was sent only after letters of protest were mailed to most of Cape George and two and half months after the original petition was sent. That speaks for itself.

However, it's typical of the incivility and arrogance of both the
Board president and certainly the manager (undoubtedly at the Board's bidding) who then routinely ignored residents' letters and phone calls during "Tree-Gate". It's not much of a stretch to assume that happens frequently when opinions do not align with corporate agenda. Or more accurately, the current Board's.

One frequent tactic of the current Board is the patronizing deflection: "you don't know the full story"  or the President's imperious sarcasm: "You're entitled to your opinions but not your own facts". Of course, as it happens, he can't reveal what the facts were since it's a "legal" matter and only the anointed can hear them.  There's the sharp bang of a slamming corporate door again.
 
The Board's most reliable tactic however is to just ignore letters from fined residents or nuisance communications from dissenters. For instance, a proposal for an amendment to the Building Rules mailed to the Cape George manager wasn't even acknowledged. He's become an agent of the Board and mirrors their incivility when it suits him. I wonder how quickly he hit the email delete button...

The "usual suspects" also routinely fail to engage the community
or provide transparency on a range of issues. Pickleboard-Gate was discussed here for instance. There's not even a brief summary of what went on behind closed doors.  

Of course all these secret, weighty matters could be summarized with identifying  content redacted. Why not? The residents "in good standing" have a right to know what the Board is doing, when "interpretations" of Building Rules change suddenly; what the Board's atty advised;  why a decision was reversed after 12 years; what other trustees thought, or didn't think;  or whether all of them  simply wielded the rubber-stamp...

Where is it written that a corporation can't act more transparently;
engage residents in choosing a Pickleball court venue or decide how to define a hedge;  put divisive issues up for a vote; apprise residents of legal details in broad strokes so they can be informed about what's happening in the community; defend and explain Board actions; allow residents to provide feedback, and rate the quality of  their leadership. Even large, ruthless corporations make more of an attempt than they do here. I'm sure residents would pitch in to handle some of the details if the volunteer Board is overworked. I gladly will!
 
So "corporatism" is alive and well in Cape George. Will that change? Unlikely without more activism by residents here. The good news is that abuses by the current Board President and rubber-stamping trustees can be opposed in court. 

If you have been harmed by the Board's actions, please consider a small claims case if nothing else. Email if you like. I'll be glad to share atty's opinions on the tree issue for instance.

Sadly in my opinion, litigation may be the  only way to deal with
this Board's  intransigence, arrogance, and failure to listen. Consider also running for the Board or encourage someone who will if these issues bother you as much as they do many others.

There's reason for hope. Here're some encouraging signs that changes have happened or may be coming to a HOA near you.

From: 
https://en.wikipedia.or/wiki/Homeowner_association#Undemocratic

 

The AARP has recently voiced concern that homeowners associations pose a risk to the financial welfare of their members. They have proposed that a homeowners "Bill Of Rights" be adopted by all 50 states to protect seniors from rogue Homeowner Associations.

Certain states are pushing for more checks and balances in   
homeowner  associations. The North Carolina Planned  Community Act for example requires a due process hearing to be held before any homeowner may be fined for a covenant  violations It also limits the amount of the fines and sets other restrictions.
 
In California, any rule change made by the board is subject to a majority affirmation by the membership if only 5% of the membership demand a vote. This part of the civil code also ensures that any dissenting individual who seeks a director position must be fully represented to the membership and that all meetings be opened and agenda items publicized in advance.
 
The Supreme Court of Virginia has ruled that a HOAs power to fine residents is an unconstitutional delegation of police and judicial power.
 

Pickleball Controversy

I've been trying to gather more information about the pickleball court brouhaha.  No... I am not an agitator poking into every possible controversial issue to roil peace and harmony in Cape George. 

But, there is unquestionably a history of the
Board opting to make decisions in ways, that are secretive, heavy-handed, overreach covenants, tilt toward favoritism, and encourage favor-seeking.

For instance, the President used the August 2015 newsletter to openly champion a resident and former Board member who wanted a neighbor to clear-cut old growth trees targeted as a "hedge violation". Sadly, propelled by the current Board's absurd interpretation, the resident was compelled to cut all but two of the targeted trees to the ground. The Board's actions were in complete violation of our covenants and completely ignored the windowing and thinning suggested in the Building Rules.

Had the resident targeted by the Board's overreach lived in state, she would have taken the Board to court. Multiple atty's, including those of a prestigious law firm in Seattle, have examined our covenants and written strongly adverse opinions about the legality of the Board's actions. For more about the issue: see post here and another here.

But, back to the Pickleball controversy. If you linger around the mailboxes, you will notice that pickleballing can be loud. Very loud. Imagine you live in an adjacent home, say one on Cape George Rd. or those just above the court on Quinault Loop. You'd be mad as hell and demand a few answers.

As I understand it, there was no engagement of the community as a whole in the decision. No announcement with a clear plan of action. No statement of alternatives. Just one fine day, a crew breaks ground for a new pickleboard court.

Was there perhaps some lobbying behind the scenes by a few "select members" who enjoy the sport...say an ex-Board member or prominent volunteers for instance who feel a sense of entitlement. Totally baseless speculation you may argue... Besides who wants to play the "Grinch" on the issue of a wonderful, fun-filled pickleboard court...  

But the issue is not project worthiness but rather a lack of  community involvement. What other sites were studied? Impacts? Costs? Amenties? Would badminton or tennis have been favored over pickleball?

Noise travels well uphill so did anyone poll
neighbors, research decibel levels, solicit community suggestions, call for a vote, or
even briefly consider adequate bathroom access?

As it turned out, I understand there was a constant parade of pickleballers dancing into the Cape George office for bathroom breaks. Did the office administrator suddenly decide enough was enough. Whatever unfolded, several pickleball players were spotted taking leaks behind the barn until a resident's threat forced a port-a-potty rental.

Reasonably, I think, a few questions should be asked.  What other sites were considered? If not, why not?  Why wasn't the community permitted input... why not a vote?

Was the large open field adjacent to the clubhouse in the running?  After all, it would have been only a few yards to the clubhouse bathroom. There's even a bathroom accessible outside the clubhouse. Definitely more access to parking. And, arguably fewer would have been impacted by noise since the clubhouse site is more isolated from homes. 

Was there an "executive" decision made by our corporate-wannabe Board about the relative benefits to certain residents - both decision to build and choice of site. Another baseless speculation... well, maybe but when Boards go "dark" about decisions and imagine they have some kind of pseudo-corporate purview to do whatever they choose, then there will be dissension.

The pickleball court is an unfortunate example of what can happen when planning is poor or non-existent. Or, even if carefullly planned, nothing is made public. It's also what tends to happen when decisions are made by a Board which doesn't choose to engage the community; is especially opaque about even routine issues; holds numerous closed door meetings; and has no compunctions about dubious interpretations of the covenants and rules.

Coyotes vs. Cape George

A wildlife specialist spoke about coyotes at the latest Board meeting. It was a fascinating talk with some common sense suggestions for keeping pets safe, reducing attractants, and confronting coyote aggression.  A question and answer session followed.

I vaguely remember someone wondering if a "trap and relocate" effort would rid Cape George of this "dire" menace. The answer was "no". Other coyote families would move right in.

What struck me though was another resident who suggested shooting them. I thought at first she was probably joking. She wasn't. Not that I could detect anyway...

Her solution: shoot these opportunists who make an occasional meal of pet food left outdoors and are prime suspects in pet disappearances.

Yep, get out the shotgun and have at 'em. Except the use of firearms is prohibited in Cape George... Whew! The image of geriatrics shooting off shotguns at random hours still leaves me uneasy.
 
Coyotes can pose a danger admittedly...even to humans in rare cases. However, the level of anxiety here surprised me. Potentially, I suspect local cougars could be much more of a threat. Particularly to pets or small children. And on wooded trails even to a lame geriatric or two...

Cougars seem to be rarer, far more elusive, and less vocal though. They're also essential in controlling deer populations. So they are unlikely to rate a Cape George Board discussion item any time soon.

Then there are raccoons which are also known to devour pet food, drown dogs, hiss and snarl aggressively, transmit various diseases, and can cause nasty bites. But, they seem to get a pass too. I guess it pays to be a little less noisy at night!

The speaker covered the basics but here's a far more interesting take on coyotes. The bottom line is coyotes are resourceful creatures and an essential part of the ecosystem in keeping rodent and rabbit populations in check.

They're amazingly resilient too. If they can carve out a niche in big cities like L.A., the alarmists at Cape George don't have a prayer of stopping 'em.

Here's an excerpt of the actual article:

 I've studied coyotes for more than 35 years,
 and along with research and performed by my
 colleagues, we've discovered that talking
 about "the" coyote is misleading. The moment 
 one begins making rampant generalizations 
 they're proven wrong. For example, in some 
 areas coyotes live alone, in other locations
 they live with their mate, while in others
 they live in groups that resemble wolf packs 
 -- extended families of different 
 generations. In these packs there are 
 "aunts" and "uncles" who help to raise 
 youngsters. Coyotes are sometimes 
 territorial and sometimes not. In a 
 nutshell, coyotes are quintessential 
 opportunists who defy profiling as 
 individuals who predictably behave this way 
 or that. And, this is one reason why they 
 are so difficult to control. 

 Killing does not and never has worked. When 
 a space opens where a coyote had lived
 another individual simply moves in. Usually 
 the offending coyote is not identified. And 
 it is ethically indefensible to wantonly 
 go out and kill coyotes because they try to
 live among us, arrogant big-brained 
 invasive mammals who have redecorated the
 homes of coyotes and other animals and then
 conveniently decide that they have become
 "pests" when we don't want them around any
 longer. The Texas governor's utterly
 unacceptable actions come as more cities in
 the Denver and other metropolitan areas are
 realizing that the best way to address
 conflicts with coyotes is to examine our own
 behavior. Confrontations with coyotes can
 almost always be traced to irresponsible
 human actions including allowing dogs to run
 free off leash and feeding the coyotes,
 either intentionally or unintentionally. And,
 it's pretty easy to clean up all of these
 problems and coexist peacefully with coyotes.

Letters to Cape George Board

Thanks to the Board, several letters supportive of the Covenants and preserving trees have been published.  They appeared under the August 11, 2015 "Events and Notices" information packet link on Cape George's website.

See the letters on pages 3-14 of the document by clicking here.


That member letters appeared - even buried deeply - is enough to hearten those concerned about the extreme definition of a "hedge" and the even more extreme remedies being applied for "hedge violations". For more about the issue, see earlier post by clicking here.

In his response to one of these letters, the Board President cites "Lakes at Mercer Island Homeowners Assn. v. Witrak". Briefly, that case involved a homeowner, who although denied a permit, went ahead and planted 12 huge Douglas Fir trees, each between 25 and 30 feet high.  She must have hired a forklift and worked in the dead of night to pull it off!


It was part of an ongoing dispute between the homeowner and the HOA. There was, however, a clear restriction written into the Mercer Island CCR's so her action was impermissible. The court naturally ruled in favor of the Mercer Island HOA. 

This case, however, doesn't remotely resemble what's happening in Cape George. The trees being targeted here are mature trees planted years ago - not ones illicitly planted to circumvent a clear restriction. Our covenants encourage planting vegetation; their language is protective of trees; and building rule 3.2 prescribes windowing and thinning to enhance views.


The Board's extreme actions are based on their interpretations -not of the Covenants- but of subsequent Rules and Regulations. An atty. here points out that "the Board cannot enforce by Rules and Regulations, what the Covenants protect". This is the legal equivalent of going the wrong way on a one-way street.

Moreover, the existing hedge remedies are absurd in specifying the same penalty for shrubs and trees. A shrub cut to 8 ft gets a "haircut"; a mature tree cut to 8 ft gets the "death penalty". The permitted alternative to strip "any two adjacent mature trees of commingling foliage" just equates to a "slower death". This is a clear violation of the language and intent of our Covenants and Rules.

Citing the Witrak case is once more an attempt to justify an extreme interpretation. However, the Witrak case is not on point nor are the facts similar to what's happened in Cape George. Multiple attorneys have pointed this out to the Board over the years. Their opinions are available to anyone interested.  


A "hedge" of 100 ft. trees on the Marquess of Landsdowne's Scottish estate doesn't justify an extreme definition either. Huge trees are not what is commonly intended by the word hedge.  And you certainly can't shoehorn this extreme definition into a Building Rule in an effort to get around the Covenants. Again in the opinion of atty's, the Board's action exceeds their authority.


Imagine the nasty fight that would ensue if Scottish villagers decided in 2015 that the Marquess must rid his "damned hedge of commingling foliage" or cut them to 8 ft. The Marquess would rightly protest. "Well," the villagers might shriek, "our new King can bloody well interpret the law any way he sees fit and, oh by the way, he's siding with us". In that case, the incident would be remarkably similar to what's happening here.    

A more satisfactory solution that would uphold the intent of our covenants would compel a  reasonable attempt at "windowing and trimming" per Building Rule 3.2. The parties themselves could try to resolve disputes with the help of Cape George mediators. 

If no compromise solution arose, an arborist would be hired to specify the extent of limbing that would not endanger the tree's health. All costs would be defrayed evenly between tree owner and complainants. The Cape George Manager would make the final determination of a remedy based on the arborist's report. 

P.S. Here's an example of how effective windowing and thinning can be. This tree used to block half the view of the Dungeness Spit until it was limbed.

  

Trees and Views - A Strange Phone Call

A few days ago, I received a call from the party who lodged the most recent Sunset Blvd tree complaint. She launched into a spiel about supporting neighborliness and quickly pointed out she was all for windowing and trimming trees. Finally, she confided many folks didn't seem to have a good opinion of her and hoped we wouldn't "be adversarial". I agreed and the conversation ended.

Her actions however were in stark contrast to her words. She had offered to help the owner pay for remedying the violation but only if ALL THE TREES listed in the "hedge indictment" were cut to the ground. However, she rejected out of hand the owner's compromise offers to fell some trees and window and trim the rest.

Later it occurred to me that she really may support windowing and thinning in theory. But, of course, she needn't be so supportive if an extreme hedge interpretation by a friendly Board could be used to advance her own agenda. And she wasn't.

All that remained to be done was lodge a complaint to coincide with the sale of the property. The owner living in another state would be more likely to cave in and, in any event, would be compelled to remove any such "violation" to finalize a sale. 


The scheme appeared to work perfectly except no one won. Certainly not the residents of Cape George. Instead of resolution, more skirmishes over these issues loom:

 * The out-of-state owner paid a $2000 bill
   for felling trees + fines on her own.   
   This occurred twelve years after the 
   Board voted unanimously in 2003 to dismiss 
   that party's identical complaint against 
   the same trees. Changing a ruling and then 
   applying it retroactively is capricious, 
   heavy-handed, and almost certainly won't 
   survive a court challenge.

 * The Board's extreme prescription for 
   remedying a hedge violation -- "haircut" 
   for shrubs; "death penalty" for trees -- 
   is absurd and  ignores the governing  
   documents' clear language favoring 
   "windowing and thinning" rather than 
   "topping and other forms of tree 
   mutilation".

 * A divisive issue remains and will almost
   certainly be problematic in the future. 
   The Board has disregarded letters from
   multiple attorneys and likely will embroil 
   Cape George in a lawsuit. Several petition 
   signers who opposed the Board have pledged 
   financial assistance should that happen.

 * Views were not improved at all.


The last is particularly significant yet sadly ironic. I stood on streets "impacted" by the trees on the Sunset property before and after the trees were cut. Other trees on the property, not subject to violation, now back-fill the visual gaps left by felled trees. There's no measurable "view" improvement by anyone's standards.

In addition to this needless destruction of property and expense to the owner, the Board acted to champion a "cut-em-all-down" stance in the newsletter while ignoring a compromise to window and thin; they now interpret a hedge to be as little as "two trees with commingling foliage"; and they assert members "voted" affirmatively for this extreme interpretation. In the opinion of many, including the atty's mentioned earlier, the Board's bizarre interpretations and actions are indefensible and overreach their authority.
 
We would like to be saluting the Board for their volunteerism and efforts on behalf of all residents. Instead their actions have been divisive, their statements disingenuous, and their methods arrogant and bullying. To quote our attorney's letter to the Board:   

"However, when the Board attempts to enforce a rule beyond that found in the Covenants in the favor of one member against another, cooperation is not encouraged but rather favor seeking is, and capricious and arbitrary rulings result".

We will continue to oppose the Board's  interpretation of a "hedge" and their actions to promote felling trees instead of windowing and thinning as the governing rules promote.

"Thinking About Thinking" Talk

I just heard Professor Wes Cecil's "Thinking About Thinking" talk hosted by Cape George University. I know what you're probably thinking... :)

Academic, boring, a few interesting insights, light moments even but not enough to sit for an hour. Not at all. More like entertaining, thought provoking, engaging, memorable. I was eager to hang around at the end for Q&A.
 
The opening scene began about 250 million years ago in the Age of Reptiles when impulses ruled. Then we fast forward millions of years or so later when mankind was in the process of doubling the size of their brains and doing so in short order... a few million years rather than hundreds of millions. 

At some key evolutionary point, man's impulses waned or started to drift toward the societal - a kinder, gentler trend of pausing for a moment to think before acting. Maybe it was a flash of insight that killing someone too hastily might backfire. Express displeasure and give yourself or him/her/it a chance to run first. Two well-regarded books on thinking were mentioned: "Thinking, Fast and Slow" by a Nobel winning economist and "Blink" by Malcolm Gladwell. However "Blink" was more a popular than a critical success. 

One of the biggest surprises though is, despite all its advantages, we don't really like to think. Even today. It's hard, requires lots of calories, and is very time-consuming. Especially so now with a giga-tonnage of info to fuel (and clog) the machinery of thought.

So we develop strategies to avoid it. We buy into strange myths, join cults with a simpler world view, blindly accept narratives that reinforce our prejudices, then conveniently skip, filter, or otherwise ignore pesky little facts that don't fit. We keep doing it over and over.

That's Einstein's definition of insanity: doing the same thing and expecting different results. A couple of illustrative popular myths were discussed: building more and more highways in the hope that traffic woes will ease or boosting crop production as a panacea for starvation when the problem is mostly one of politics/distribution rather than supply.

Science is much more rigorous and cautious than we usually are. Despite private biases, scientists will abandon theories that aren't supported by evidence. They'll readily admit areas of ignorance, tread lightly, ask tough questions, probe. Unless we're really far gone, we'll usually admit we should do more of that. Science is right most of the time. Our pet theories hardly ever are.

On the other hand, one of science's own refreshing admissions is that the mind is virtually "terra incognita". Most agree that the mind is a wonderful tool but a terrible master. All are victimized by the mind's impulses, quirks, unpredictability, and its relentless assault on peace and equanimity. 

That led to a question about meditation. I couldn't hear distinctly from the back row but I think possibly about meditation's benefits in dealing with random thoughts. A great future topic.

It was a wonderful evening. Many thanks to Wes Cecil and Cape George University.

A Trees and Views Proposal

Just as you settle back and start to enjoy Cape George's beautiful summer views and the peace of a no-fireworks ban, another kind of war erupts. Strictly speaking, the war's been going on for years but has now gotten red hot right along with global warming. It's Cape George's mini-war over trees and views. See earlier posts here and there.

Historically, Cape George has celebrated the need for both beautiful trees and views within the governing language:
 

3.2   PLANT MAINTENANCE

  Members are encouraged to trim all planted
  vegetation so as to promote wildlife
  habitat, prevent landslides and erosion,
  maintain natural beauty, and prevent
  neighboring views from being blocked.  To
  prevent unsightly disfigurement and/or
  weakening of tree structure, trees should
  be pruned by windowing or thinning rather
  than topping or other forms of tree
  mutilation. 

There's also an 8 ft. hedge restriction. Alas, those wanting views at all costs have hijacked this hedge rule for their own ends. The Board has jumped on the bandwagon and is shoehorning trees -not just shrubs- into the category of "hedge".  It's a dark and ugly turn.

If that's not extreme enough, the current Board interprets the hedge rule to include "any two trees with commingling foliage". So any two trees a few feet apart caught in the act of commingling can be deemed a "hedge".

Recently an owner on Sunset was forced to fell 4 of 6 old growth trees as a result. Those who love trees are aghast. Attorneys laugh and urge them to sue. An ugly precedent has been set and there is no peace in the valley. See earlier posts for all the gory details.

I would like to propose another solution that will enhance views without felling trees and align with the language and intent of the covenants. That is cease and desist with the "two commingling trees doth a hedge make" and simply enforce 3.2 as it is written. 

Permit the aggrieved, view-hungry residents of Cape George to file a complaint that view blocking tree foliage is not adequately trimmed and windowed as 3.2 says it should be. The degree of windowing and trimming could be left to the discretion of Cape George's manager. 

It's not a perfect solution of course. One extreme interpretation of "windowing and thinning" could mean "no commingling foliage" and result in denuding half the tree's foliage. The other extreme would be to under-trim and leave no view enhancement at all.  Not to worry! We pay the manager big bucks to make these tough calls without acting in extreme ways that devastate resident property or lead to lawsuits. 

At the same time, this compromise would uphold the intent of our covenants and we could look forward to another peaceful 4th. No fireworks, beautiful views, wonderful trees, Cape George as it could and should be.    

P.S.  Here's the potential of thinning and windowing. This tree used to block half of the view of Dungeness Spit until it was limbed.