Corrections Needed For Use Of Association In Our Gov. Docs

Last night I sent the following to the Board. 

To: GLA Board of Directors

Cc: Glastonbury Landowners for Positive Change

During the Members Phone Meeting discussing changes to the Governing Documents, Alanah identified that most association covenants have clear definitions and directions for what the Board does and what Members do. She said our Covenants and Bylaws are not clear, and they should be clarified. Dan Kehoe, an original author for the transition from the 1982 Covenants to those in use today, did not agree with Alanah. I did agree with Alanah and volunteered to send Dan a document highlighting the areas of concern and what specifically creates conflicts.

What I found was truly amazing and I feel should be shared with all Members. I am sending this to the Board and GLFPC in hopes it reaches most Landowners. I changed the writing from being to Dan to being to all Landowners. I also feel the need to clarify that what “Association” means in our covenants is more important to address than continuing with the currently proposed changes to our governing documents. I ask all Board members to consider this as you read this and think of your obligation to all Landowners.

A general review of our 1997 Covenants showed the term “ASSOCIATION” is used approximately 160 times. Approximately 80 uses were for a general entity and cannot be tied to an action by either the Members or Board. At least 60 uses were tied to the Board taking action and about 20 were related to actions that I feel should be done by Members.

Since the 1997 Covenants were derived from the 1982 Covenants, I made a comparison with the 1982 Covenants in order to understand how things changed. The comparisons showed most of the covenants were identical, and many of the 1997 Covenants had simply replaced the word “Grantor” with “Association.”

This comparison also revealed a continuance or transfer of the philosophy the purpose of the Covenants was to govern or control Landowners rather than the Landowners controlling themselves. The 1982 Covenants show that Church Universal and Triumphant, as the “Grantor” or seller of property rights, maintained control over all uses and activities on the lands within the Community. This control included the option “to purchase any parcel in the Community for “fair market value” at any time in the future,” whether the landowner (or former lessor) wanted to sell or not. (12.01) The Grantor also retained control over changes to the covenants by including the requirement for “written consent of the Grantor and the affirmative written vote and consent of the owners of at least fifty percent of the parcels.” This allowed the Grantor to veto or stop any changes to the covenants even if there was an affirmative vote by 50% of the Landowners. (2.05) Also, by conducting a written vote, the Grantor could identify the vote cast by each landowner.

I think that everyone accepts the principle that a legal document cannot use a single word with two different meanings. The word “Association” cannot be used to depict the Board, and, when used again in the same document, mean the Landowners, as well. In the 1997 Covenants the word “Association” can be found with two different meanings in the same paragraph.

I hope that informing readers of my philosophy will help better understand my recommendations. I believe that the “association” is an impersonal entity/organization established under State law by the Articles of Incorporation, which identifies the people constituting the Association. If there are no clarifying statements with the word “association” then it means the simple entity.

I believe there are two major issues that need to be clarified in our Covenants,
    a. Does the Board both control Landowners and do business for them?
    b. What actions/activities do the Landowners want to be done by a vote of the majority of Members?

Below I am presenting the covenants that should be clarified by including the terms Board and Member as I feel intended and acceptable to all Members. I am not including any covenants where it is clear the term Association is referencing the “entity” or GLA in general.

I am sorry this letter is so long, but I wanted to avoid the common problem of all Board members not having access to attachments. This e-mail includes my recommended changes to the Covenants in the same format the current changes to covenants are written – i.e. added language in bold and deleted language in strikethrough. My interpretation and opinion of the problems are in italics. I used this approach so readers can properly interpret what each Covenant change achieves.

1.03 as written, with an interpretation that the Board is the Association, allows 12 people to decide what lands come under the burden and benefits of the Covenants, which could require increases in assessments to provide benefits to the new property. I think the Members should determine what lands are benefited by and brought into the Community.

1.03. Additional Property. The Glastonbury Landowners Association, Inc. Members (herein referred to as the “Association”) shall have the exclusive right, at its their option by an affirmative vote of 51%, of Membership Interests in good standing, at any time in the future, to add and subject additional property to any or all of the covenants in this Declaration, or any amended versions thereof, by executing and recording an instrument in writing describing any property owned by the Association to be added, or by executing and recording a written agreement between the Association and the owner(s) describing the property to be added to the covenants. Said property must be located adjacent to or no more than one mile from property that is already subjected to these covenants. When added, said additional property shall become burdened by and shall receive the benefit of the covenants as provided in the written instrument or agreement.

1.04 under an interpretation that the Board is the Association, allows 12 people to decide what lands may be relieved of the burden of assessments, which may increase assessments to others, and would allow uncontrolled development of lands which may impact adjoining lands or other Landowners. I think the Members should determine what lands are benefited by and brought into the Community.

1.04. Property Withdrawn from Declaration. The Association Members shall have the right, at its their option and at any time in the future, to withdraw any property from the covenants in this Declaration, by an affirmative vote of 51% of Membership Interests in good standing, executing and recording, an instrument in writing describing any property owned by the Association to be withdrawn, or by executing and recording a written agreement between the Association and the owner(s) describing the property to be withdrawn from the covenants. Such recording to be done in the Park County Clerk and Recorders Office. When withdrawn, said property shall cease to be burdened by or to receive the benefit of the covenants as provided in the written instrument or agreement, except that any existing easements or rights of way shall remain in full force and effect unless expressly cancelled or extinguished.

2.03 The authority to inspect or enter sheds, garages, and other out buildings should only be done by a Director.

2.03. Binding Effect. The covenants within this Declaration shall and are intended to be binding and enforceable as hereinafter provided. Upon authorization of the Association’s Board of Directors in each instance, the assigned Association Director shall have the right of ingress, egress and inspection upon and of each parcel, excluding interiors the of dwellings, at reasonable times, and with reasonable notice of at least seven (7) days for the purpose of insuring compliance herewith.

2.04 Adding Board of Directors clarifies the Association is an impersonal entity and the persons certifying documents are properly empowered within the Bylaws.

2.04. Duration of Covenants. The covenants in this Declaration shall continue in full force and effect for a period of twenty years from the effective date hereof, at which time they shall be automatically extended for successive periods of ten (10) years each unless terminated or modified by the affirmative vote of at least fifty-one percent (51%) of the Membership Interests of the Association in good standing at the time. Any such vote shall be conducted in accordance with the bylaws and rules of the Association. The president and secretary of the Association’s Board of Directors may certify the results of such vote on behalf of the Association and its members in any instrument to be filed of record for the purpose of terminating or modifying the covenants.

2.05 Adding Board of Directors clarifies the Association is an impersonal entity and the persons certifying documents are properly empowered within the Bylaws

2.05. Amendments to Covenants. The covenants in this Declaration may be altered, amended, modified, waived, abandoned or terminated in whole or in part at any time by the affirmative vote of at least fifty-one percent (51%) of the Membership Interests of the Association in good standing at the time. Any such vote shall be conducted in accordance with the bylaws and rules of the Association. The president and secretary of the Association Board of Directors may certify the results of such vote on behalf of the Association and its members in any instrument to be filed of record for the purpose of altering, amending, modifying, waiving, abandoning or terminating the covenants in whole or in part.

2.06 Adding Board of Directors clarifies the Association is an impersonal entity and the persons certifying documents are properly empowered within the Bylaws

2.06. Adoption of Land Use Master Plan. The Glastonbury Land Use Master Plan (hereinafter referred to as the “Master Plan”) may be adopted, altered, amended or terminated at any time by the affirmative vote of at least fifty-one percent (51 %) of the Membership Interests of the Association in good standing at the time. Any such vote shall be conducted in accordance with the bylaws and rules of the Association. The president and secretary of the Association Board of Directors may certify the results of such vote on behalf of the Association and its members in any instrument to be kept or filed of record for the purpose of adopting, altering, amending or terminating, or providing notice of the adoption, alteration, amendment or termination of, the Master Plan. When adopted, the Master Plan shall have the force and effect of the covenants in the regulation of land uses, development and growth in the Community, and shall be enforceable by the Association Board of Directors to the same extent as if set forth fully herein. Any portion of these covenants and any rule or regulation derived from these covenants may be incorporated into the Master Plan or may continue to exist independently of the Master Plan and shall be given full force and effect.

2.07 As written, with an interpretation that the Board is the Association, allows 12 people to decide upon or place additional burdens and constraints on the remaining 200+ Landowners and the use of their land. Members should always vote on additions/changes to the contracts they accepted when acquiring the land. The added wording also continues to supporting the “Association” as an impersonal entity.

2.07. Rule Making. The Association Members shall have the authority to adopt reasonable rules and regulations which are consistent with the intent and enabling provisions of these covenants or the Master Plan time by the affirmative vote of at least fifty-one percent (51%) of the Membership Interests of the Association in good standing at the time. Said rules and regulations shall be enforceable by the Association Board of Directors to the same extent as if set forth fully herein. All existing rules and regulations adopted or amended prior to the effective date hereof in accordance with the original Declaration of Covenants, and all rulings or conditions of approval made pursuant thereto prior to the effective date hereof, shall continue to remain in full force and effect, to the extent not inconsistent with this Restated Declaration of Covenants, until repealed, superseded or amended by a vote of the Association Members. Any references in any such existing rules or regulations to predecessors-in-interest of the Association or to any officers, boards or committees of such predecessors shall be deemed to pertain to the Association or to officers, boards or committees of the Association, respectively. NOTE: In addition to this text being confusing, there have been no Membership votes to establish “RULES or REGULATIONS,” and the Policies and Standards developed through Directors vote cannot change this contract, (our Covenants) or even add further definitions or interpretations..

3.01 The current definition leads to confusion which is easily corrected by identifying the actual people that make up the entity/organization known as the “Association.”

3.01. Association. The Glastonbury Landowners Association, Inc., a Montana nonprofit corporation, its successors and assigns, whose membership consists of all the Landowners in the Community of Glastonbury.

3.04 As written, with an interpretation that the Board is the Association, this is stating the Board owns the land and is allowing other Landowners to use it. Stating the full name of GLA helps tie to Montana land records and title to lands.

3.04. Common Use Land. Land owned, or acquired, or held by the Glastonbury Landowners Association upon which a nonexclusive easement running with each parcel in the Community has been or is granted to each Landowner as a Member of the Association for recreational purposes. The Association shall retain ownership of and the right to use the land in These lands shall be administered by the Board of Directors in accordance with the Master Plan and these Covenants. Note: Removing lands from ownership by GLA is addressed in 1.04

3.16 The term Community is not definitive, citing the public records removes potential for confusion.

Listing those with contracts to purchase or a leasehold interest separates assessments from a direct tie to the land. It adds confusion to any legal process to collect assessments since Bylaw Article IV (B) Covenant 2.01 and 11.06 explicitly state burdens and obligations run with the land.

3.16. Landowner. The record owner(s) of a parcel, lot, tract of land, or condominium as shown in COS 615-A and COS 616-A, listed in Exhibits “A” and “B” attached hereto, or any legally subdivided parcel or redivided parcel as recognized by Park County and the Association and recorded in Park County Clerk and Recorders Office. condominium in the Community, including any purchaser(s) of record under a contract for deed or similar agreement. The term shall include the record owner(s) of a life estate or an estate for years for an original term of at least fifty-five (55) years in a parcel. Insofar as any ownership, voting or membership rights, privileges, duties and responsibilities provided for in this Declaration are concerned, the term shall not include the Association or the owner(s) of any unvested reversionary or remainder interest(s).

5.03 Though it is likely to be removed, as written here, the clear intent is that the Board conducts the business of approval and not the Members.

5.03. Sewage Disposal. Each Landowner shall dispose of domestic sewage in a manner approved by the Association Board of Directors and any public health authorities with jurisdiction, including the Park County Health Department. No outhouses shall be allowed except as permitted by county and state regulations.

5.05 As written here, the clear intent is that the Board conduct the business of decision making for individual cases of what is a nuisance or eyesore, and not the Members.

5.05. Nuisances and Eyesores. Nuisances and eyesores shall not be allowed. It shall be in the Association’s Board of Directors discretion and authority to determine what a nuisance or an eyesore is and to require removal, correction or abatement by the Landowner upon the giving of reasonable notice as provided in Section 10.02. Specifically, the following conditions shall not be allowed on parcels within the Community:
    a. Abandoned trailers, mobile homes and other structures, junk (inoperative or unregistered) cars and equipment, scrap piles, brush piles, etc., in open view of platted roads and other parcels or land; and
    b. Noxious odors, excessive noise or vibration, nuisances or other annoyances which, in fact, are infringing upon another’s quiet use and enjoyment of his land.

5.06 As written here, the clear intent is that the Board conduct the business of decision making for individual projects, and not the Members.

5.06. Industry and Mining. “Industrial” activity, strip mining, quarrying, excavating and other activities which produce smoke or chemical wastes, pollute water and air or tend to degrade the environment shall not be allowed in the Community, except for minor activities in connection with the building of structures and improvements on a parcel or as is otherwise approved by the Association Board of Directors for specific projects from time to time.

5.07 As written here, the clear intent is that the Board conduct the business of decision making for individual projects, and not the Members.

5.07. Commercial Activity. It is the intent of these covenants that the Community of Glastonbury should be a predominantly rural/residential community that allows for the reasonable and productive exercise of free enterprise by its residents, and which both encourages fixture orderly growth and protects valuable rural and residential land qualities. The restrictions on commercial activity shall include the following:
    a. Such activity may not be a nuisance or an eyesore, as determined by the Board of Directors;
    b. Commercial business activity other than that contained within a dwelling unit must be concealed by fence, wall, landscaping, shrubs, land berms or the like as required by the Association Board of Directors from time to time;
    c. Signs may be erected only as allowed by Section 6.04 or as otherwise permitted by the Association Board of Directors;
    d. Adequate off-street parking must be provided as defined by the Association Board of Directors or in the Master Plan;
    e. The Association Board of Directors may establish setback requirements for commercial structures from time to time that are substantially in excess of those required by Section 6.02 in order to prevent the unsightly accumulation of commercial establishments along platted roads and boundary lines in a predominantly rural/residential community;
    f. Bars, lounges, liquor stores, stills, and the production, sale, service or use of tobacco products, liquor, wine, beer or other alcoholic beverages in commercial establishments shall not be permitted;
    g. Adult bookstores and the sale or display of pornographic literature or materials shall not be permitted;
    h. Establishments which provide, feature, or allow gambling, nude dancing, stripping, pornographic or X-rated films, lewdness or any illegal activity shall not be permitted, and the Association Board of Directors shall have the discretion and authority to require that any such commercial activity be terminated; and
    i. Additional restrictions upon or regulation of commercial activity shall be as set forth in the Master Plan.

5.10 As written here, the clear intent is that the Board conduct the business of decision making for individual projects, and not the Members.

5.10. Live Timber. Except as provided below, natural live timber may not be commercially harvested or cut without the approval of the Association Board of Directors.
    a. Certain parcels may be evaluated by the Association Board of Directors as being “moderately” or “heavily” timbered. Trees may be cut for firewood, fencing or building structures on these parcels only - however, no more than thirty-three percent (33%) of the original amount of timber on a given parcel may be cut. Deadfall, standing dead and diseased trees shall be cut before healthy living trees. Trees native to a parcel may not be commercially harvested or cut for commercial firewood and hauled away.
    b. Trees may be cut and removed on any parcel in small quantities in order to clear sites for construction, roadwork and firming.

5.11 As written here, the clear intent is that the Board conduct the business of decision making for individual projects, and not the Members.

5.11. Surface Water Use. Except for any existing surface water rights and permits as of the effective date hereof, Landowners may not newly appropriate or use the surface water on a parcel without the prior approval of the Association Board of Directors. All appropriations and use of surface water shall be in accordance with state law and shall be subject to all prior valid rights.

5.12 As written here, the clear intent is that the Board conduct the business of decision making for individual projects, and not the Members.

5.12. Subsurface Water Use. Landowners are entitled to appropriate and use subsurface water by drilling wells in accordance with state law.
    a. Spring development may only be made with the approval of the Association Board of Directors and must be made from an underground water source or aquifer, or at the point of discharge, from within the parcel. Others may have already appropriated and reserved certain spring water or spring-fed surface water for irrigation, stock water, and other uses. Such spring water may not be appropriated or used by a Landowner without approval of the owner(s) of such water rights.
    b. If the Association Board of Directors determines that a scarcity of water exists, it may implement a water-use plan to remain in effect for the duration of the scarcity. In such an event, a use priority shall be given to the necessities of life, and all Landowners shall be required to abide by the terms of such a plan.
c. Any parcel in the Community which does not have sufficient ground water available to supply the needs of at least one dwelling (a “dry parcel”) may, as a mailer of right, obtain ground water from the most appropriate neighboring parcel. To establish such a right, the Landowner of the dry parcel must have tried and failed to drill a well on his own parcel through a commercial driller at least two times and must submit the results of a study by a qualified geologist and a dowser’s report, if requested, showing the likelihood of no water on his parcel and the likely location of ground water on a neighboring parcel. The Association Board of Directors shall arbitrate any disagreements between the Landowners of a dry parcel and a neighboring parcel in the allocation of ground water, and its decision shall be final and binding. In addition, the Landowner of the neighboring parcel to be used shall have the option of:
       i. Sharing his existing well or a planned common well with the dry parcel; or
       ii. Requiring the Landowner of the dry parcel to drill his own well, which well must be located as close as is reasonably possible to the common boundaries of the parcels or in a location preferred by the owner of the neighboring parcel.

If a common well is shared, the Landowner of the dry parcel must pay his fair share of all reasonable expenses incurred in the establishment of such well and all costs associated therewith. All necessary and reasonable easements for placing and maintaining any such well and transporting said water to the dry parcel shall be given by the owner(s) of the neighboring parcel.

    d. Each Landowner that successfully drills a well is required to provide the Association Board of Directors with a report that states the location, depth, flow, quality and cost of the well. A similar report is required for drilling operations that fail to produce a well. This information will be kept in a well log by the Association for inspection by prospective purchasers and other Landowners.

5.13 As written here, the clear intent is that the Board conduct the business of decision making for individual projects, and not the Members.

5.13. Mineral Rights and Development. The original developer of the Community has expressly excepted and reserved all oil, gas, coal, hydrocarbons, geothermal water and energy, and other minerals, together with the mineral and geothermal rights thereto owned by it, and the right to appropriate, extract, develop and use the same. After the effective date hereof, such reservation shall not include the right of surface entry on land not owned by the owner of the mineral rights without the consent of the Landowner. The Association Board of Directors may permissively allow the reasonable noncommercial use of any of the minerals existing within six (6) feet of the surface by a Landowner for use on the parcel owned, provided that such use is reasonable and will not exhaust or denude the property of its mineral resources.


Note: Section 6 has been greatly modified or replaced in the Master Plan and the two documents should be consolidated.

6.01 As written here, the clear intent is that the Board conduct the business of decision making for individual projects, and not the Members.

6.01. Association’s Approval. A site plan and building plans satisfactory to the Association Board of Directors must be submitted by a Landowner to the Association for review and approval prior to beginning construction of any structure, the placing of any mobile home on a parcel or the carrying out of any other project for which review is required by the Master Plan, these covenants or any rule or regulation adopted in accordance therewith. The Association may retain a copy of the said plans in its files. The design of any improvement shall be safe and in accordance with this Declaration and the Master Plan. The Association Board of Directors shall conditionally or unconditionally approve the plans and make any recommendations deemed necessary or advisable, unless:
    a. The plans are incomplete, are in violation of or are not in accordance with these covenants, the Master Plan, or any rule or regulation adopted in accordance therewith;
    b. The proposed structure is, in the Association’s Board of Directors opinion, unsafe, unsound, could pose a menace to the safety and health of other persons, or requires the assistance or input of an engineer; and/or
    c. The plan or the proposed structure is unlawful in any way.

The Association’s Board of Directors approval of any plans, together with any conditions or recommendations, shall not constitute an acceptance of any liability or an approval of the design, engineering, safety or legality of the structure or project - and the Association is hereby exempted from liability therefore.

6.02 As written here, the clear intent is that the Board conduct the business of decision making for individual projects, and not the Members

6.02. Setback Requirements. No structures shall be placed within 25 feet of any parcel boundary line or 15 feet of any easement crossing a parcel, without prior approval of the Association Board of Directors. This applies to buildings and major improvements but not to fences, landscaping, roads, driveways, walks, sprinklers, etc.

6.04 As written, with an interpretation that the Board is the Association; this allows 12 people to “adopt” guidelines impacting or influencing all landowners and their neighbors.

6.04. Signs and Billboards. The design and location of all exterior signs shall be in accordance with written guidelines adopted by the Association by or shall be specifically approved by the Association prior to installation the affirmative vote of at least fifty-one percent (51%) of the Membership Interests of the Association in good standing at the time.

6.05 The Bylaws give the Board the power and duty to enforce covenants and rules. By identifying the need for a roof and facade, this covenant sets that as a minimum requirement for the Board to enforce.

6.05. Mobile Homes. There are restrictions on the use of mobile homes and trailers in the Community, including, but not limited to, the following:
    a. The Association Board of Directors shall enforce rules that require Landowners to provide a roof and exterior facade on mobile homes that are more in keeping with the general character and quality of the Community as defined in the Master Plan, or to conceal them from view from roads and other parcels by landscaping, earth berm, fence, wall, etc. Landowners are encouraged to landscape their parcel and obtain quality mobile homes. Exterior wood or wood-like finishing on mobile homes is preferred.
    b. Mobile homes and trailers must also meet any further standards set forth in the Master Plan.

7.01. Common Use Land. Easement. Covenants. Three of the parcels described on Exhibit “B” are hereby designated as “common use land.” A nonexclusive, perpetual easement and right-of-way is hereby granted upon said common use parcels described below to each landowner, concurrently with the sale of each parcel, for recreational purposes under the following terms and conditions:

(c) Activities allowed or disallowed on Common Use Land impact all Landowners and should be approved by all Members.
    c. The recreational purposes for which the common use land may be used shall include hiking, camping, picnicking, horseback riding, cross-country skiing, fishing and other similar recreational activities approved by the affirmative vote of at least fifty-one percent (51%) of the Membership Interests of the Association in good standing at the time the Association for Landowners and their families;

(d) The prohibition of the use of firearms prohibits hunting with a gun. The statement “may or may not permit hunting” implies it is currently closed to all hunting. Changing this requirement has potential to impact all Landowners directly or indirectly and should be voted on by Members.
    d. Hunting and the discharge of firearms on the common use land are not permitted without authorization from the Association. The Association Members, by the affirmative vote of at least fifty-one percent (51%) of the Membership Interests of the Association in good standing at the time may or may not permit hunting on the common use land at any time in the future;

(e) Activities allowed or disallowed on Common Use Land impact all Landowners and should be approved by all Members.
    e. The cutting of trees, use of motorized vehicles, mining, excavating or other activities which would permanently disfigure, alter, commit waste upon or damage the common use land shall not be permitted without the affirmative vote of at least fifty-one percent (51%) of the Membership Interests of the Association in good standing at the time authorization from the Association;

(h) Making additional rules that impact all Landowners should be approved by all Members.
    h. The Association, by the affirmative vote of at least fifty-one percent (51%) of the Membership Interests of the Association in good standing at the time, may, from time to time, make additional rules of safety and health and prohibit any activities upon the common use land which in its opinion are not are in keeping with the qualities of the Community as defined in the Master Plan;

(j) Determining what buildings or improvements may be built and maintained at an expense or increase in assessments for all Landowners should be approved by Member vote.
    j. The Association, by the affirmative vote of at least fifty-one percent (51%) of the Membership Interests of the Association in good standing at the time, may in the future erect buildings or improvements upon portions of the common use land for recreational or any other common use purposes consistent with the Master Plan.

8.01 The present language generates confusion, but the intent here is to show that all Landowners, including individual Directors, as landowners, but not as a separate privileged person, are allowed use of easements.

8.01. Platted Road Easements. The platted road easements are those which are shown on the Certificates of Survey of the Community and generally labeled as “private access and public utility easement.” These are private easements for access, utilities and a road system in the Community. A perpetual and exclusive easement and right-of-way is hereby reserved upon, across, over and under the real property shown on Certificates of Survey of the Community and labeled as “private access and public utility easement, for the use and benefit of the Association and Landowners, for the following uses and purposes and subject to the following terms and conditions:
    a. The Association and All of the Landowners and their guests have the right to use any of the platted road easements opened by the Association and upon which developed roads and/or trails have been placed;

(b) Adding Board of Directors clarifies that the Board may permit uses not listed.
    b. Use of the platted road easements is limited to motorized and non-motorized vehicular traffic, pedestrian and equestrian traffic, livestock, public utilities, ditches and canals, pipelines, landscaping, fencing, roads, trails, and such other uses and purposes as shall be engaged in or permitted from time to time by the Association Board of Directors or as are otherwise contemplated by these covenants;

(c) As written, with an interpretation that the Board is the Association it allows 12 people to decide what level or quality of road maintenance may be designated for different roads, which will impact numerous landowners. The Members should determine what level of maintenance should be done for all roads and if any roads or areas receive special treatment or reduced services.
    c. The Association Members intend to maintain a private road system within the platted road easements for vehicular access to the various parcels within the Community. Initial construction by the developer(s) was intended to be to a basic gravel and dirt consistency. The Association, by the affirmative vote of at least fifty-one percent (51%) of the Membership Interests of the Association in good standing at the time, may designate and define different qualities or levels of road construction and maintenance within the Community (such as residential roads, foothill roads, mountain roads, etc.) according to its limited ability to deal with such conditions as topography, terrain, elevation, native soil and materials, slope, grade, easement location, parcel location, drainage, climate, weather, snow, ice and mud, and limited resources and equipment. The quality, quantity and/or level of road construction and maintenance may be upgraded by the affirmative vote of at least fifty-one percent (51%) of the Membership Interests of the Association in good standing at the time Association at any time. The Association Board of Directors shall have the exclusive discretion and option to give permanent names to any or all of the roads and streets in the Community;


Note; 12.02 addresses setting up special Districts or zones for additional member contributions or special assessments to/for a limited number of Members. The ability to name roads should be separated as an individual action/issue.

(d) All Members are impacted by increasing the number of miles, and/or assessments needed to construct and maintain more miles of roads, and those decisions warrant a vote by the Members.
   d. Some of the platted road easements on the Certificates of Survey of the Community come to cul-de-sacs and then extend to an exterior Community boundary and terminate. The cul-de-sacs are the intended termination points of the initial road construction program. However, the extensions to Community boundary lines are being reserved for possible future road extensions or additions to the Community, access to other areas, road loops, efficient utility access, etc., and are included within all of the terms and conditions hereof. The Association Members may elect to open these easements and construct roads upon them at any time in the future;

(e) Rules that impact all Members should be voted on by all Members.
   e, The Association by the affirmative vote of at least fifty-one percent (51%) of the Membership Interests of the Association in good standing at the time shall from time to time , make, alter and enforce rules of health, safety, convenience and conduct on the platted road easements, including, but not limited to, speed limits, signals and signs, traffic regulations, weight and size limits, recreational usage, livestock usage, etc.;

(f) Establishing gates or security entrances will increase assessments and should be decided on by Members.
    f. The Association by the affirmative vote of at least fifty-one percent (51%) of the Membership Interests of the Association in good standing at the time may provide, maintain and operate security entrances for any of the roads or may dedicate or otherwise designate any of the roads within the Community for public use;

(j)The Master Plan empowered the Board to make decisions on projects of Landowners which is clarified by the new text.
    j. No Landowner may encroach upon any platted road easement bordering upon, joining or crossing the Landowner’s parcel with fences, structures, improvements or any other use inconsistent with this section, except as permitted in writing by the Association’s Board of Directors.

8.02. Additional Easements. The following additional easements and rights-of-way are hereby reserved upon, across, over and under the following described parcels:

(a) The present language generates confusion, but the intent here is to show that all Landowners, including individual Directors, as landowners, but not as a separate privileged person, are allowed use of easements.
   a. A perpetual easement and right-of-way for ingress, egress and utilities on an existing road shown and labeled as “approximate centerline of existing road and easement per roll 20 page 154,” Parcel Nos. 95, 96 and 97, on Certificate of Survey No. 616-A. Said easement and right-of-way shall be forty (40) feet in width, centered on the approximate centerline of the existing road, and is for the use and benefit of Landowners and; the Association; and

(b) As written here, the clear intent is that the Board conducts the business of decision making for individual projects, and not the Members.
    b. A perpetual easement and right-of-way in favor of Parcel Nos. 97, 98, 99, 100 and 101 on Certificate of Survey No. 616-A running across Parcel Nos. 97, 98, 99 and 100, to construct and maintain a road for ingress and egress for the owners of these parcels to the areas which comprise the western portions of their parcel(s) for any purpose, including the removal of timber there from, from the Community access road described in Paragraph 8.02(a). Said easement is for a single-lane road not to exceed fifteen (15) feet in width. It shall be constructed and maintained at the mutual and common expense of the owners of the parcels benefited. Locked gates may be maintained by the parcel owners to restrict access to persons entitled to use the easement. Before construction and use of the road, the location must be approved by each parcel owner and monumented in a reasonable manner. Any disputes relating to this easement between owners of affected parcels shall be arbitrated and resolved by the Association’s Board of Directors, whose decision shall be final and binding.

8.04 As written here, the clear intent is that the Board conduct the business of decision making for individual projects, and not the Members.

8.04 Parking. Each parcel shall provide adequate off-road parking consistent with its current usage. The platted road easements shall not be used for parking except in areas designated by the Association Board.

Throughout Section 9, it is clear that the Members (i.e. Association as an entity) require a review and that it is done by the Board as part of conducting the business for the Association, following the guideline, standards and procedures previously set by the Members.

9.01 Subdivisions Allowed. Association’s Review. Parcels in the community may be further subdivided, subject to the provisions set forth below and the review and written approval of the Association Board before the completion of any such subdivision. Any attempted sale, transfer, conveyance, lease, filing or recordation of a deed, certificate of survey, plat or other description of a subdivided portion of a parcel without such written approval shall be invalid, void, and of no force or effect. The Association Board will not unreasonably withhold such approval.

9.03 Intent of Review. The intent of this provision is that the Association Board shall review each proposed subdivision for consistency with the Master Plan and with this Declaration and to insure proper engineering, surveying, access and plans for providing utilities and at least one feasible building site – so that the divided parcels will be at least up to the same standard as the rest of the parcels in the Community, for the benefit of other Landowners and the future purchasers of divided parcels.

9.06. Review Process. The Association shall require the submission of an application form, drawing, plat and plans and any other materials needed to inform itself about the proposed subdivision and to insure quality. Within thirty (30) days after the submission of all required materials, the Association Board will give the Landowner a written response which may include the following:

As written here, the intent is clear that the Members (i.e. Association as an entity) may vote “from time to time” to establish additional standards, not currently in the Covenants or Master Plan, that all landowners will be held to when subdividing parcels.

9.07 The last sentence stating the standards or policies may become incorporated into or superseded by the Master Plan at any time prevents the Board from making and publishing policies and standards impacting all Landowners. The Board cannot legally develop items that change the Master Plan “at any time” and affect “all proposed subdivisions.”

9.07 Standards The Association Members may, from time to time, vote to establish and publish a statement of policies and standards for reviewing proposed parcel subdivisions, which shall include objective criteria upon which all proposed subdivisions will be reviewed.
    a. These may include criteria as minimum parcel size in certain areas, minimum road standards, minimum utility requirements, survey requirements, density, etc.
    b. These standards are intended to approximate the minimum standards and concepts originally designed into the Community and any improvements thereto which have been substantially made and/or set forth in the Master Plan

These standards may become incorporated into or superseded by the Master Plan at any time.

9.08 Accepting responsibilities and costs for adding new roads has potential for increasing assessments required for road maintenance and must be accepted by the Members.

9.08 Maintenance of New Roads The Association by the affirmative vote of at least fifty-one percent (51%) of the Membership Interests of the Association in good standing at the time may, but is not obligated to, maintain new private roads at the same level as the original roads in the Community. The Association Members may agree to accept such a new road for construction and/or maintenance and install and or maintain utilities upon the payment of a fee from the Landowner dividing the parcel.

9.09 As written here, the clear intent is that the Board would be conducting the business of documenting the decision accepting the subdivision and its roads on behalf of the Members

9.09 Status of New Parcels. Once a parcel has been divided from an original parcel in the Community, or redivided, with the written approval of the Association Board, it (and its Landowner) shall be entitled to the same rights and privileges and subject to the same obligations and restrictions as an original parcel. The Landowner of such a divided parcel shall be responsible for paying the same assessments as other original parcels.

10.01 Reading and interpreting 10.01 “ in the light of its express language, context and intent” as required in 2.02, and interpreting Association to mean the Board of Directors, this covenant, as written, allows 12 people to “make and enforce” new rules and regulations pertaining to any covenant and impact all Members. Under the 1982 administration, this was acceptable and the conversion in 1997 did not recognize the need for a democratic process to be followed when establishing additional limitations or constraints Members must comply with.

10.01 This covenant should be divided into two separate covenants to independently address the Association Board and the Association Membership. Options for these covenants are offered below.

10.01 Association’s Authority. The Association is hereby vested with the discretion and authority to exercise all rights, powers and responsibilities, make all decisions, take all actions, make and enforce all rules and regulations and otherwise do all things in the administration of the Community that are authorized or required in this Declaration of Covenants or by the Master Plan. The Association is the sole administrative authority in the Community and shall exercise its rights, powers and responsibilities and manage its affairs in accordance with its articles of incorporation, bylaws and rules.

10.01(a??) The Association Members will govern themselves by amending the Covenants that provide the benefits, constraints, and limitations we all live under. It must require a 51% affirmative vote to make any change to this contract we have with each other

(numbers to be determined)
10.01(a) Association Authority The Association Members, as a group, are the sole governing authority of the Community and shall make all new rules and regulations only by the affirmative vote of at least fifty-one percent (51%) of the Membership Interests of the Association in good standing at the time as required in Covenant 2.07.

10.01(b???) The Board is established to work for the Members by the Bylaws and are constrained in applying or acting under the Covenants by the “express language, context and intent” of each Covenant. Under the Bylaws, the Board is allowed to establishing rules and regulations that only pertain to the Board and how it conducts the business and affairs of the Association (as an entity) through Bylaw Article VI(B)(10).

There is no need to include discretion in this covenant as the discretion to act is identified in 12.04 which currently states “The Association shall have no liability for any of its actions or failures to act. Etc.”

10.01(b) Association’s Board Authority. The Association’s Board of Directors are hereby vested with the authority to exercise all rights, powers and responsibilities, make all decisions and take all actions, enforce all rules and regulations and otherwise do all things in conducting the business and affairs of the Community that are authorized in the Bylaws, this Declaration of Covenants, or by the Master Plan.

10.02 As written here, the clear intent is that the Board would be conducting the business of enforcing the covenants as required in Bylaw Article VI(B)(9)by enforcing the covenants and/or filing legal action for the Association.

10.02 Enforcement of Covenants. In the event of any violation of these covenants, the Association Board or any Landowner may enforce these covenants through proceedings at law and/or in equity against one or more other Landowners, including the seeking of damages and/or injunctive relief, by filing an action in the Park County District Court (Montana Sixth Judicial District); provided, however, that no Landowner shall initiate any such legal proceedings against another Landowner until at least thirty (30) days after mailing or delivering a written complaint of the alleged violation to the Association Board. During the thirty (30) days, the Association Board may, but is not obligated to, take action by notifying the Landowner(s) against whom the complaint is made of the alleged violation, initiating its own legal proceedings and/or submitting the complaint to binding arbitration in accordance with the rules of the American Arbitration Association if all parties agree to such binding arbitration.

These covenants shall be enforceable by specific performance. Prior to initiating any legal proceedings, to enforce these covenants whether as the result of a complaint or on its own initiative, the Association Board shall first give written notice and a reasonable opportunity for the alleged violator to take action to comply with these covenants. Such notice shall identify the property, specify the violation or complaint and demand compliance with the terms and conditions of these covenants. Such notice must provide for a period of at least ten (10) days from the date of personal service of such notice, or at least fifteen (15) days from the date of posting and mailing of the same, within which time compliance can be made before any legal proceedings by the Association may be commenced. The Association, the Association Board or any other duly authorized representatives of the Association shall not be liable to any person or entity for any actions taken or not taken pursuant to the provisions in this section, and all Landowners shall be deemed to have waived any and all rights to or claims for damages for any loss or injury resulting from any action taken or not taken under the terms and conditions of this section.

10.03 It is self evident that the Board does not hold the power to transfer the rights, powers, and responsibilities of either the Board or the Association as an entity, back to Church Universal and Triumphant or any other organization without approval of the Landowners.

10.03 Assignment of Association’s Rights, Powers, and Responsibilities. The Association may assign or transfer all of its rights, powers and responsibilities as established under this Declaration or under the Master Plan, at any time in the future, to a successor organization by the affirmative vote of at least fifty-one percent (51%) of the Membership Interests of the Association in good standing at the time.

10.04 As written here, the clear intent is that the Board is conducting the business of recording changes in ownership, and not the Members.

10.04 Association Membership All Landowners are automatically considered to be members of the Association. Each Landowner agrees to notify the Association Board in the event of the sale or transfer of any of the Landowner’s property in the Community qualifying as a Membership Interest. Each Landowner receiving title to or ownership of any property in the Community qualifying as a Membership Interest agrees to register with the Association Board by providing the owner’s name, mailing address and property description.

11.02 As written here and in Bylaw Article VI(b)(3), the clear intent is that the Board is conducting the business of collecting funds from Members needed for management of the Community.

11.02 Purpose of Assessments. The assessments levied by the Association Board shall be used for the operation, maintenance, repair, and improvements of roads, trails, easements, common use land, security entrances, ditches, canals, drainages, machinery, vehicles, equipment and other facilities serving the Community; for snowplowing; for structures, improvements and added services on the roads and trails, the common use land or elsewhere within the Community which are for the benefit of Landowners; and for such other uses and purposes which are contemplated in these covenants or as are otherwise deemed necessary or desirable by the Association Board in fulfilling its obligations, rights, powers and responsibilities within the Community including but not limited to, legal fees, and costs incurred in enforcing any of these covenants against a Landowner or other party, purchases of machinery, vehicles and equipment needed to carry out the Association’s responsibilities hereunder, the hiring and salarying of necessary employees, and capital improvements for administrative, recreational or other Community purposes to promote the common health, safety, recreation, culture, education, welfare and enjoyment of Landowners.

11.03 As written here, the clear intent is that the Board receives payments from Landowners and the Bylaws allow the Board to increase or decrease the assessments.

11.03 Annual Community Assessment. Each Landowner shall pay an annual community assessment (the “annual assessment”) to the Association for the uses and purposes described above. The annual assessment covers the period from January 1 to December 31 of each year. The amount of the annual assessment may be increased or decreased from year to year, at the option of the Association Board, based upon the amount of work to be done and the estimated or anticipated cost of labor, equipment and materials involved. The amount of the annual assessment shall be as follows:
    a. $xxx land assessment for each parcel, plus an additional $xxx for each undivided tenancy-in-common interest in excess of one per parcel; plus
    b. $ xxx dwelling assessment for each dwelling unit located on each parcel or owned in association with each undivided tenancy-in-common interest in a parcel; or
    c. $ xxxx land and dwelling combined assessment for each condominium unit; or
    d. $ xxxx land and dwelling combined assessment for each Golden Age Village lot (whether or not each lot has a dwelling unit located on it.)

The annual assessment shall be payable either annually on or before January 31 or quarterly in four equal increments on or before January 31, April 30, July 31, and October 31 of each year. If an annual assessment notice is mailed after January 15 of any year, the annual payment or first quarterly installment shall not be payable until fifteen (15) days after the date the notice is postmarked or personally delivered to the Landowners. The amount of the annual assessment may be increased by the Association Board due to inflation or increased costs or services up to a maximum of 10% per year or the last annual increase in the Consumer Price Index (CPI) whichever is greater.

11.04 This covenant once again uses the term Association to mean both the Board and the Members. In one sentence it states: “may be levied at any time and for any periods by the Association for emergencies, extraordinary capital improvements or repairs, or for any other purposes and by any methods upon the affirmative vote of at least two-thirds (2/3rds) of the Membership Interests of the Association in good standing at the time.

Bylaw Article VI(B)(3) gives the Board responsibility for determining assessment amounts and all Members should not be involved if only small areas or North or South alone are impacted.

11.04 Special Assessments. Special assessments pertaining to the entire Community of Glastonbury or to any limited areas or properties in the Community (including, but not limited to, Glastonbury North or Glastonbury South) may be levied at any time and for any periods by the Association Board for emergencies, extraordinary capital improvements or repairs, or for any other purposes and by any methods upon the affirmative vote of at least two-thirds (2/3rds) of the Membership Interests of the Association in good standing at the time pertaining to the property constituting the area to be affected by the special assessment. Any such vote shall be conducted in accordance with the bylaws and rules of the Association. The president and secretary of the Association Board may certify the results of such vote on behalf of the Association and the affected members in any instrument to be kept or used for the purposes of providing notice of the special assessment. Special assessments that pertain to any limited areas or numbers of parcels or condominiums that are less than the entire Community of Glastonbury shall be payable only by the Landowners of the Property to be affected. The Association Board shall designate the affected area, property, parcels, or condominiums to which a special assessment pertains if other than the entire Community of Glastonbury.

11.05 It is clear the intent of this covenant pertains only to the Board of Directors and their duties and responsibilities to conduct business.

11.05 Accounting, Allocation and Use of Funds. The Association Board shall account for funds paid by Landowners pursuant to any assessment (the “assessment funds”) in any manner consistent with its responsibilities and good business practice. Special funds or accounts of any sort may be established by the Association Board to maintain control and supervision over the assessment funds. Allocation and use of the remainder of the annual assessment funds shall be in the discretion of the Association Board. Special assessments shall be used for the purposes for which they are established. The Association Board is and shall be a fiduciary in the allocation, application and use of assessment funds. The Association Board has a duty to perform the responsibilities provided in these covenants to the best of its ability and to the extent that assessment funds reasonably allow. In addition the Association Board may establish, maintain and carry over from year to year any reserve funds or special purpose funds for improvements, equipment purchases or for any other purpose pursuant to these covenants. Assessment funds shall be kept or deposited in a special account as provided in the bylaws of the Association.

11.06 There are conflicting thoughts as to if the use of “Association” here is the Board or Members at large. Is an affirmative vote of 51% needed to reduce debts to the GLA or can the Board negotiate and accept a lower payment? What are the limits to negotiation, and can the Board accept a payment of only the assessments charged and eliminate all interest and penalties, even from 1997?

Alanah was to provide the court case reference showing that the Board truly is empowered to negotiate and waive assessments and penalties when land is transferred – i.e. empowered to deprive Members of funds for roads etc. If this is accurate, there is no need to include a reference to waiving obligations when title is transferred.

Any limits or constraints in that court case must be included in this covenant.

11.06 Effect of Nonpayment of Assessment. If any assessment is not paid by midnight on the date when due, then such assessment shall become delinquent and shall, together with any interest t hereon, become a continuing lien on the parcels which shall run with the land, if the assessment remains unpaid for thirty (30) days after such due date, a five percent (5%) penalty will accrue on the amount of the payment due and the assessment shall thereafter bear interest from the due date at the maximum rate allowed by State law. one and one half percent (1 ½%) per month, compounded monthly. The obligation to pay any assessment, penalty or interest of the Current Landowner of any property in the Community subject to assessment shall not be affected by any conveyance or transfer of title to said parcel unless waived or agreed upon in writing by the Association( After a vote???). The Association may bring an action at law against a Landowner to collect delinquent assessments, penalties and interest and/or foreclose on the lien against the parcel and there shall be added t the amount of such assessment the costs of collecting the same on foreclosing the lien thereof, including reasonable attorney’s fees.


The Problems with 12.01
The 1982 Covenants gave absolute power to the “Grantor”- i.e. Church, by enabling the Grantor to override, cancel, or veto the affirmative vote of 50% of the Landowners. This power is recorded in 1982 Covenants 2.04, 2.05, 10.01, 12.01, 12.04, 12.05 (now 12.01) and 12.06.

The 1982 Covenants were placed on the land by the owner/developer (Church) and, according to the last “WHEREAS,” state the covenants were, for the benefit of the Grantor and future owners and purchasers thereof.”

As written, this 1997 12.01 Covenant can be applied to any other Covenant and prevent all Covenants from being a constraint, obligation on any Landowner, or a benefit to any Landowner. Members would have no recourse or say in the matter. This enables the granting of favors or punishing of individual Landowners.

The change recommended by the Legal Committee to remove the requirement of finding a variance “to be necessary” and replace it with “would create an unreasonable hardship” greatly increases the power and autonomy of the Board if here the word “Association” does mean the Board.

I recommend this clause be deleted and, if Alanah provides a court ruling usable in establishing the limits or a process of negotiation on assessments or other covenants, than a new clause can be developed following that court case findings and statements, etc.

12.01 Variances, Waivers, The Association reserves the right to waive or grant variances to any of the provisions of this Declaration, where in its discretion, it believes the same to be necessary and where the same will not be injurious to the rest of the Community.

12.02 This is a carryover from the Church having ultimate control over Landowners and no landowner ever questioning if they could be required to give up their rights. The 1982 Covenants to amend the covenants required” written consent of the Grantor” (Church) which enabled the Church to override a vote of 51% of the Landowners, and that problem is still present in the last sentence.

It may violate an individual’s constitutional rights and be an illegal requirement to be in any contract between individuals or groups.

12.02 Districts Each present or future Landowner within the Community shall be deemed to have waived any right to object to the formation of one or more local improvement or service districts which include such Landowner’s land, and also to have waived any right to join in any action opposing the formation of such a district. Each landowner shall be deemed to support the formation and operation of any such district for the mutual protection of Landowners of all parts of the Community. However, no such districts, including special zoning districts established by Landowners’ petition, may be established without the written consent of the Association Note:  I question if this is even legal?.

12.04 To protect both the Board of Directors, and the Association as an entity, both must be listed in this clause.

12.04 Liability of Association. Neither Tthe Association nor the Association Board shall have no liability for any of its actions or failures to act. In addition, the Association, and the Association Board shall have no liability or obligation under this Declaration to any person or entity except such liabilities and obligations as the Association has been expressly assumed herein.

Thank you for reviewing my suggested clarifications to our covenants. I believe the changes above will result in greater harmony and fairness in our community, and greatly decrease the potential for lawsuits of all kinds.

Leo Keeler