Compton Green News
OFFER OF SETTLEMENT AND COMPROMISE
April 24, 2005
Compton Green Homeowners' Association
P.O. Box 70067
Bellevue, WA 98007
To the members of Compton Green Homeowners Association:
Many of you do not know the current state of events in Compton Green because the board of directors neglect to inform the membership of these events. The board of directors, on their own and without the permission of the association membership, has been spending huge amounts of community funds on legal bills. The board of directors will tell you that it’s because of us. That would be a half truth because it’s really only because the board of directors refuse to abide by state law in performing and conducting the association business. It is therefore our goal to bring to your attention the following.
OFFER OF SETTLEMENT AND COMPROMISE
This offer of settlement and compromise is made pursuant to our good faith interest to settle all disputes with the Compton Green Homeowners' Association and move onto more productive relations in regard to Compton Green. While we dispute we are in violation of any enforceable covenant and reserve the right to defend against the Notice of Violations, this offer in settlement and compromise in no way suggests or is an admission to any violation. So therefore;
We, MEMBER agree to the following:
1. Pay to the association $12,000 @ $1,000 per month for 12 months beginning 30 days following written settlement and compromise agreement.
2. Remove all signs from our property on 33rd Street.
3. Remove all plywood fencing at Tract F.
4. Remove all blue tarps at Tract F.
5. Provide public easement dedication to Tract F to allow access to the trail easement at the south end of Tract F.
6. Keep horse manure management in accordance with King County manure management procedures and CC&R’s.
7. Pay to the association, through the Cherry Crest Saddle Club, $2,500 per year for 10 years, which such sum shall be used exclusively for materials (gravel, hog fuel, etc.) to improve and maintain all the trail easements as depicted on the Compton Green Plat recorded in September 1967.
8. Pay all future assessments in a timely manner.
In return for the above, the Compton Green Homeowners' Association board of directors and the association agrees to;
1. Release all liens filed against MEMBER property.
2. Provide a copy of this offer of settlement and compromise to all the members of the association with proof of mailing.
3. Give notice to all members of the association of a meeting in which this offer of compromise will be discussed item for item. Thereafter provide a settlement agreement to the membership for a vote to approve. Both parties understand it may take more than one or two meetings and more than a couple of months. The meetings will be recorded and minutes provided to all members within 10 days of the meetings. Recordings will be made available to any member who may wish to view them. The goal is to be as open as possible and give an opportunity to every member to be as informed as possible.
4. The board of directors will allow the MEMBER full opportunity to explain their position in regards to community events and the state law which governs the association and the board of directors.
5. The board of directors and the association agree to abide by RCW 64.38 which governs the conduct of the association and the board of directors.
6. The association will provide a schedule for open board of director meetings on a monthly basis. Example, such as 2nd Saturday each month, Bellevue Library, 10am to 12.
7. The board of directors agree to communicate and consult with legal counsel only as provided by RCW 64.38.035(2).
8. All association records will be assembled and organized into black binders and indexed. The MEMBER will pay for all black binders. 1 ½” size.
9. The board of directors will require all property owners to comply with the CC&R’s of the community and specifically require all structures, fences and otherwise, be removed from the bridle trail screening easements pursuant to the CC&R’s.
10. Require all property owners to maintain the screening easements as required by the CC&R’s and provide at minimum a four wide clear path on the centerline of all bridle trail easements and tracts as provided on the recorded plat of Compton Green recorded in Sept. 1967.
11. Provide for notice of violation to any owner who fails to maintain the screening areas as provided by the CC&R’s and the cleared four foot wide path.
12. Agree that all funds paid to the association by the MEMBER and/or the Cherry Crest Saddle Club be used exclusively for materials (gravel, hog fuel, etc.) for improvements to the trail easements of Compton Green as depicted on the recorded plat of Compton Green as recorded in 1967.
We understand there will be discussions and there may be need for further compromise from both sides in order to achieve a workable and final agreement. We want to be clear that we are interested to work towards that goal and will always make ourselves available to the board of directors and the membership pursuant to RCW 64.38.
We thank the board of directors and the general membership for their consideration of the matter.
To Association Attorneys and Board of Director
It is important that you both read and respond accordingly to this communication.
Again we want to be very clear for the record, present and into the future that the only reason we are writing you is because the alleged board members of the Compton Green Homeowners Association will not speak or communicate with us. While we want to meet and resolve issues, the alleged board refuses to show they are willing to so. We are assuming that your responsibilities to the Rules of Professional Conduct that you both will forward not only this communication but all communications to the alleged board of Compton Green.
We also want to put you both on notice of the terms of RCW 64.38 which it appears you both and the alleged board seem to just disregard. The state legislature made a specific effort to create and enact RCW 64.38 specifically to protect the members of an association who may be required to be members of the association from illegal activities of the association. There is a difference in being required to belong and a voluntary joining of an association. If you voluntarily belong to an association and if you don't like the way they do business then you can quit. Having to be required to be an association makes it a much different matter . As you both can see and know RCW 64.38.050 specifically states; Any violation of the provisions of this chapter entitles an aggrieved party to any remedy provided by law or equity. The court, in an appropriate case, may award reasonable attorneys' fee to the prevailing party.
It seems the legislature thought it important enough to protect each member from the illegal activities of an association by providing for recovery of attorney fees.
While most of the members of Compton Green are responsible members who would not condone illegal activities of the association, the current alleged board and you both seem to think that the law does not apply to you or the alleged board members. However to protect the good members of the association of the burden to pay legal fees for the illegal activities of the alleged board and its attorneys, the association adopted an amendment which specifically states that the violating parties are not entitled to an association defense if they purposely violate the law. It is the duty of the alleged board and you both to comply with all rules and state law. It is your responsibility as counsel to counsel the board that they are required to comply with all the rules and state law or they will be held personally responsible for the costs associated with enforcement of those rules and laws. State law is very simple to read and understand.
We are in receipt of a certified delivered Compton Green Homeowners' Association "NOTICE OF VIOLATION" dated 4-22-04. It is unsigned by any alleged board member so the document could have been created by anyone. If it is from the alleged board they should provide the minutes of the meeting in which it was adopted and voted in open session to be sent. That discussion and vote did not occur at 4-20-04 meeting and it's clear the document was created on 4-22-04. We are writing you both so you both will be apprised of what is really happening in Compton Green. We cannot be assured that you get the true and correct information from the alleged board. Because you both are attorneys who have obligations the Rules of Professional Conduct which requires you both to uphold the rule of law regarding all State Law and including the especially relevant RCW 64.38, we are giving you notice of the violations of both.
On April 20, 2004 I attended a meeting which was call a "Board Meeting." This was the first announced "board meeting" in the history of the Compton Green Homeowners' Association. If we are wrong please fax to 425-881-0160 all the notices of previous "board meetings." There is plenty of paper in the fax machine and there should be no costs associated with faxing the required documents to us. We have asked for this information many times previously. None has been forthcoming.
At this first ever noticed "board meeting," which notice did not provide an agenda, violation of RCW 64.38.035 (1) regarding the board meeting, there was no discussion regarding any specific violations of the defunct CC&R's of Compton Green. We call the Compton Green CC&R's defunct because it is very apparent that for over thirty years there has been very little if any enforcement of them. There are hundreds of violations in Compton Green. At the "board meeting" there was no motion made by the alleged board to go into executive session to discuss anything of concern. The notice we received is dated 4-22-04, is unsigned and we are not accepting it as coming from an official board adopted or approved item. The fact is I was at this alleged official board meeting and the alleged board could have easily made discussion with me regarding any concern they had and especially if they were considering a notice of violation to us they could have easily put that on the record at that time. They did neither. In fact they would not address us or allow us to speak. I have a complete record of the meeting.
The people who were running the meeting or announced themselves as the "alleged board" members of the Compton Green Homeowners' Association in our view are not legitimate board members. We have asked many times previously to have the alleged board send us copies of past board meeting notices which confirm they were correctly nominated in open session as all association business is required to be conducted by RCW 64.38. None have been forthcoming. It is the associations alleged boards' burden to provide proof of that. If they can't, they are illegitimate. Simple as that and anything they produce has no value. Violation of due process will always win.
We have a real concern that "due process" and conducting association business according to state law is of little regard to many in Compton Green and especially to these five alleged board members and you both. The disregard, for conducting community business correctly, violates their responsibility to act in accordance of the law.
The notice we received could have been sent by anyone in or out of Compton Green. It is unsigned and identifies none of the alleged board members who supported or voted to support the notice. If there was any sort of legitimate meeting which properly made a motion to send out such notice of violation please have it faxed to us.
The NOTICE OF VIOLATION has a fine attached to it. We are not aware of any governing documents which has properly approved a fining system. If there was a meeting in which a schedule of fines costs were approved please have them faxed to us at 425-881-0160.
RCW 64.38.035 specifically states in clear simple language that a elementary school student could understand;
Upon the affirmative vote in open meeting to assemble in closed session, the board of directors may convene in closed executive session to consider personnel matters; consult with legal counsel or consider communication with legal counsel; and discuss likely or pending litigation, matters involving possible violations of the governing documents of the association, and matters involving the possible liability of an owner to the association. The motion shall state specifically the purpose for the closed session. Reference to the motion and the stated purpose for the closed session shall be included in the minutes. The board of directors shall restrict the consideration of the matters during the closed portions of meetings only to those purposes specifically exempted and stated in the motion. No motion, or other action adopted, passed, or agreed to in closed session may become effective unless the board of directors, following the closed session, reconvenes in open meeting and votes in the open meeting on such motion, or other action which is reasonably identified.
As you both can see it is a violation of RCW 64.38 for either one of you to meet with any alleged board member without clear evidence provided by them to you that they fulfilled their obligations as stated by RCW 64.38.035. It is not appropriate for you both to look the other way. You have a specific duty as attorneys. It appears clear that any communications between the parties, Nylander, Rosenstein and the alleged board, must comply with RCW 64.38.035. Otherwords, without proper due process in an open meeting, the alleged board cannot communicate with either of you and likewise you both cannot communicate with the alleged board. If you send the alleged board a letter, for the alleged board to consider it they need to vote in open session to go into closed session and they need to identify the reason for the closed session. We also doubt that any such communication can be privileged communication. That argument, about privilege, is an old argument and to date neither one of you have provided any case law or statutory law which allows the withholding of association documents from members of the association. Without such case law, which would stand on all four legs regarding Compton Green, violates your obligation to the Rules of Professional Conduct. It is especially important that documents created illegally without due process not be allowed to stand as privileged. Privilege inside a homeowners' association is just absolutely impossible when everyone is entitled to all the association records and there is no protective order which could be invoked to prevent disclosure of association records to each of the other members. There is no logic in privileged association documents. If there is, please explain it if you can.
It is a violation of the Rules of Professional Conduct to conceal documents which are evidentiary evidence. It is also a violation of RCW 64.38.045 (2) which clearly states; All records of the association... shall be available for examination by all owners, holders of mortgages on the lots, and their respective agents on reasonable advance notice during normal working hours at the offices of the association or its managing agent.
Where are the offices of the association and who is the managing agent for the association? Please provide to us a date and time which we can examine all the association records. I will probably examine the association documents with a representative of Washington Mutual Bank, who is a mortgage holder of property in Compton Green. We have discussed with Washington Mutual the circumstances and issues relating to the association and you both refusing to allow access to all the association records. They have reviewed the statute and agree there is no basis to withhold any document from us or them.
With this letter, we are placing you both on notice to discontinue your communication with these alleged board members unless they furnish you both clear and convincing evidence that the alleged board has complied with RCW 64.38.035. Any continued communication which violates RCW 64.38.035 very clearly violates your oath to the Rules of Professional Conduct.
We welcome your comments and reply. As we stated previously, without some progress in the correct direction and reply to our communication we will be left no alternative than to file a complaint to the Washington State Bar Association in which we will demand that you answer in a truthful manner to the long list all our concerns about your violations of State Law, your counseling the alleged board to violate State law and your violations of the Rules of Professional Conduct relating to your direct counsel to the Compton Green Homeowners' Association alleged board to violate state law and you both concealing or destroying association documents or counseling such activity.
This is a very serious matter and we suggest you take these matters seriously.
Compton Green Homeowners' Association By Certified mail and e-mail
P.O. Box 70067
Bellevue, WA 98007
Please be advised that we are making a records examination request pursuant to RCW 64.38.045(2). We are making specific requests as outlined below because during the previous examination we were provided records which had no organization and were over burdensome to examine. We are usually available everyday during normal business hours except for all day Thursdays and Monday afternoons for the next 30 days. We are asking to specifically examine;
1. All notices to the members of Compton Green for meetings of the Board of Directors for the period 1995 to the present date with agenda items to be discussed.
2. All meeting minutes of the Board of Directors for the period 1995 to the present date.
3. All liens filed against property owners in Compton Green for the period 1995 to the present date.
4. All meeting minutes of the Board of Directors for the period 1995 to the present date.
5. All correspondence from all members to the Board of Directors or the association for the period 1967 to present date.
6. All correspondence from the Board of Directors/association to any member of Compton Green Homeowners' Association for the period of 1967 to present date.
7. All correspondence from any Compton Green attorney to anyone other than the Board of Directors.
8. All sign in sheets for all meetings and proxy votes delivered to the Board of Directors or board members for the period 1967 to present date.
9. All liens for failure to pay any assessment or fine for the period 1967 to present date.
10. All notices for violations of the governing documents of Compton Green for the period 1967 to present.
11. All notices of fines levied against any Compton Green Property owner for the period 1967 to present date.
12. The check register, checks and all receipts pertaining to checks written for the years 2003 and 2004 and 2005.
Please advise when these records will be made available. It would be helpful and expedite the examination of the requested records were organized to subject matter
March 25, 2005
Compton Green Homeowners' Association
C/O Records Manager
PO Box 70067
Bellevue, WA 98007
We are in receipt of the letter dated March 20, 2005.
Frankly, we are perplexed at your resistance to provide ALL the Association records as required by RCW 64.38. What is being hid from us and why? Certainly records are being hidden from us.
Also what is disturbing is the lie contained in your letter, “since we assembled ALL the records and had them available to you at one location from January 18 through February 14, 2005.”
You clearly know that “ALL” the records were not made available. The only records made available were those that you wanted to make available. See Nylanders letter of January 7, 2005 where he states “We categorically refuse to provide any correspondence or other matters from our files”. Isn’t that clear evidence the association is withholding records from us?
When we arrived on January 18, 2005 at the scheduled 10am agreed upon time, we were made to wait almost 25 minutes in the lobby while Rosenstien chatted, laughed and talked with McCarthy and Haring in the room where the records were assembled. This treatment and disrespect for our time was rude and unprofessional. Also it’s curious and difficult to understand while Rosenstein so clearly will talk with other association members he absolutely refuses to talk with us or answer even some very simple questions.
Upon entering the conference room we found 6 boxes of disorganized records. This was curious because the last time we were allowed access to records there were only one and a half boxes available while all the time we were told that those were ALL the records. So now on January 18, 2005 there were over 4 more boxes. Something is not right here. Either we were not given all the records the last time, which then wasted our time of review, or the association did so much additional business from the last review which we somehow were not given the opportunity to participate with according to RCW 64.38 open meetings rule with notices to members. Can the manager of the association records please explain this puzzling and perplexing situation of where did all these extra records come from.
It was very apparent on January 18, 2005 that the records we were seeking to review were not made available and thus our time was again being wasted.
Our letter of March 9, 2005 requested the association confirm in writing that ALL records will be made available and that no records of any sort will be willfully and unlawfully withheld. I know that there are at least 15 boxes of records in Nylanders possession (see Kimbrough letter to WSBA). These records were not part of the records made available on January 18, 2005. They are records of the association.
Our letter of March 9, 2005 also requests that if records are being withheld that the association provide legal authority to support the records withholding. We are requesting that since the association is withholding records that a specific list of what records are being withheld and by what legal authority they are being withheld.
While your letter states “gathering all the records from various board members is burdensome” we can’t understand why board members must have these records in their possession to conduct current community business. We are only seeking historical records which have no current value to the board. The historical records can easily be held by one records manager. We could easily keep up with current association records by being noticed to board meetings as per RCW 64.38.
We are again asking the association to guarantee to us in writing that ALL records of the association will be made available. When we receive such assurance that no records of any sort will be withheld we will then provide the dates as you requested.
While we are perplexed by the associations resistance to provide the entire collection of association records and the records provided to date are of such a disorganized bunch of boxes, we would like to offer our voluntary time to organize all the records into binders which would provide a much more expedient and less time wasting method to review the records of the association. They could easily be organized, inventoried and indexed into such categories as meeting notices, meeting minutes, financial statements, contracts, correspondence from association members, architectural committee and so forth. We would gladly provide at our expense all the binders necessary.
I was a board member of a 500 member community association which had existed from the 1930’s. The records were so well organized it was very easy to find any one document which was being sought by any member. This experience with this type of organization is voluntarily being offered to the Compton Green Homeowners' Association. And with today’s computer abilities indexing and scanning are very beneficial to that organization.
I have no interest in removing an original document but do have interest in seeing that the records are well maintained and preserved according to law and the associations controlling documents.
We wait for your assurances in writing that all association records will be made available and if records are withheld by what legal authority they are being withheld and an index of those records which are being withheld.