Covenant 12.01 Was Not Resolved In O'Connell Lawsuite
Mar 20, 2016 12:40:32 GMT -7
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Post by leokeeler on Mar 20, 2016 12:40:32 GMT -7
I just sent the following to the Board of Directors.
During the Member Phone Meeting, Charlotte stated she thought the O’Connell lawsuit supported that the term Association, as used in our Covenants, meant the Board. Alanah stated it was not resolved and that if it were up to her, she would remove the term Association and replace it with Board or Members as appropriate.
Alanah knows, and the Board should understand, that in court processes an issue only becomes a issue for the judge to decide if a specific and clearly stated question is asked of the judge, and it is argued by both parties. The question, “Does the Board have power under Covenant 12.01?” was never asked, argued, or definitively settled by Judge Gilbert.
Said another way, the O’Connell’s challenged the process and decisions made, not the authority to make those decisions, and GLA attorneys defended the process, not the authority.
Judge Gilbert did not present a ruling on whether the Board could act “as” the Association under 12.01 since that was not a question before her. She only referenced that both the plaintiff and defendant had presented the same interpretation of 12.01. In addition, she cited the variance as being approved under Section 4.2 of the Master plan and she concluded her decision with the statement “In any event, for the purposes of the pending summary judgment motion, the facts underlying the variance decision are not in dispute.”
I interpret Judge Gilbert stating “In any event” and “the facts underlying the variance decision are not in dispute” as making it clear she was not making a decision relative to 12.01 and that she doubted it had been used correctly by both the plaintiff and defendant.
I hope we all agree that within a single legal document a common definition of words must be found either in specific definitions, or in actual use. That is to say, if in one Covenant the word “Association” clearly means “Members,” that the next use of “Association” cannot mean the Board. I believe this is why the Master Plan uses the term “Association Board” when it gives specific authority for the Board to act as the Association in Section 2 and 4. This correction eliminated the need for Members to vote on variances for construction projects as previously required by 12.01.
I am reviewing the Covenants for conflicting uses of Association as I offered during the phone meeting and will soon present to the Board the numerous uses of the word Association and show where I feel it is referencing Members and where it is presenting an action by the Board. I hope this effort can serve as a base for changing the Covenants in the manner Alanah stated should be done.
Leo Keeler
During the Member Phone Meeting, Charlotte stated she thought the O’Connell lawsuit supported that the term Association, as used in our Covenants, meant the Board. Alanah stated it was not resolved and that if it were up to her, she would remove the term Association and replace it with Board or Members as appropriate.
Alanah knows, and the Board should understand, that in court processes an issue only becomes a issue for the judge to decide if a specific and clearly stated question is asked of the judge, and it is argued by both parties. The question, “Does the Board have power under Covenant 12.01?” was never asked, argued, or definitively settled by Judge Gilbert.
Said another way, the O’Connell’s challenged the process and decisions made, not the authority to make those decisions, and GLA attorneys defended the process, not the authority.
Judge Gilbert did not present a ruling on whether the Board could act “as” the Association under 12.01 since that was not a question before her. She only referenced that both the plaintiff and defendant had presented the same interpretation of 12.01. In addition, she cited the variance as being approved under Section 4.2 of the Master plan and she concluded her decision with the statement “In any event, for the purposes of the pending summary judgment motion, the facts underlying the variance decision are not in dispute.”
I interpret Judge Gilbert stating “In any event” and “the facts underlying the variance decision are not in dispute” as making it clear she was not making a decision relative to 12.01 and that she doubted it had been used correctly by both the plaintiff and defendant.
I hope we all agree that within a single legal document a common definition of words must be found either in specific definitions, or in actual use. That is to say, if in one Covenant the word “Association” clearly means “Members,” that the next use of “Association” cannot mean the Board. I believe this is why the Master Plan uses the term “Association Board” when it gives specific authority for the Board to act as the Association in Section 2 and 4. This correction eliminated the need for Members to vote on variances for construction projects as previously required by 12.01.
I am reviewing the Covenants for conflicting uses of Association as I offered during the phone meeting and will soon present to the Board the numerous uses of the word Association and show where I feel it is referencing Members and where it is presenting an action by the Board. I hope this effort can serve as a base for changing the Covenants in the manner Alanah stated should be done.
Leo Keeler