4,296 total views, 7 views today
January 29, 2021
VIA FIRST-CLASS MAIL
PRESERVE AT SHADOW MOUNTAIN HOMEOWNERS
Re: Preserve at Shadow Mountain HOA v. Kulpins
Re: In response to a public letter sent January 21 by Chris Zachar
Homeowners of the Preserve at Shadow Mountain:
Recently, a letter was distributed to the PSM community regarding litigation between the PSM Homeowners Association and a homeowner within the community. That correspondence mischaracterized the facts relating to the litigation and advocated on behalf of one homeowner at the expense of all the members of the Association. Accordingly, we thought it would be appropriate to provide a factual response regarding the dispute to clarify the record.
This matter began with the complaint by one PSM property owner to the Association regarding harassing nuisance conduct by a neighbor, including being exposed to music being played outside on a regular basis and for extended periods of time. The source of the music was sometimes originating from the offending neighbor’s garage – which included open doors to ‘share the music’ with the neighborhood – but was often situated in the property owner’s back or side yard, with the speakers pointing directly at the complaining neighbor’s property. Please see the CC&Rs, Section 2, Article t, Nuisance. Outdoor speakers are clearly and specifically not permitted.
As with any homeowner within the PSM community, the Association had an obligation to take this homeowner’s complaint seriously and perform an investigation. The PSM board did, in fact, perform an investigation, and confirmed several instances of annoying and loud music emanating from the offending neighbor’s home. Accordingly, the PSM board determined, under the authority granted to the Board by the Declaration of Covenants, Conditions, and Restrictions, that a nuisance situation existed. Based on the duty imposed upon it by those same CC&Rs, the Board had an affirmative duty and obligation to resolve the matter. If it did not, the Association would itself be a target for litigation by the complaining homeowner for failure to interpret and enforce the CC&Rs fairly and impartially. Again, refer to the CC&Rs, Section 2, Article t, Nuisance.
The Board submitted correspondence to the offending homeowners, Doug and Kim Kulpins, in an effort to resolve the dispute amicably and short of litigation. The offending homeowners responded by demanding to know who was complaining about them. That information was provided, and the offending homeowners did not again respond to the Board and the complaint. As such, litigation became necessary. The offending homeowners then initiated a counterclaim against the Association.
This is the second time the offending homeowner has sued the HOA. The previous Board and Design Review Committee which included Chris Zachar and Tim Nyland, placed a special stipulation on the lot of the neighbor, and not on any other homeowner, requiring that her trees be trimmed below the fence line at the offending neighbor’s request and insistence. When a new Board was elected (Victor Felice, Mike Pestano, Vic Sibilla), they removed the special stipulation to treat all homeowners equally and the offending neighbor sued the HOA to reinstate this special treatment afforded to him by the previous Board of Chris Zachar and Tim Nyland and others. If that were the case, ALL homeowners would have to remove all trees that were higher than their dividing walls. A settlement agreement was reached with the offending neighbor with the HOA’s insurance company, but the special stipulation was not reinstated. By this, all homeowners were assured that their property was safe from malicious and capricious actions by any one homeowner.
There was litigation between the offending homeowner and the neighbor initiated by the offending homeowner because the neighbor had planted trees in her yard visible to the offending homeowner. The offending homeowner has no view rights, yet he must have believed that he was somehow entitled to them regardless of the law, the CC&Rs and basic common sense and decency. The neighbor prevailed in the litigation and also in an appeal filed by the offending neighbor. The Appeals Court decision included a finding of fact, none of which supported the offending neighbor’s claim and clearly established the CC&Rs do not grant view rights to any homeowner. You can review the decision here: https://law.justia.com/cases/arizona/court-of-appeals-division-one-unpublished/2016/1-ca-cv-15-0707.html
In the course of depositions taken for the current cases, the offending homeowner was in essence asked why was it so difficult to adjust his behavior to comply with the CC&Rs and avoid lengthy and expensive litigation. The frequent reply was, ‘I am living my life’.
The neighbor is free to sue the offending homeowner at will and has never entered into any agreement not to sue the offending neighbors. The neighbor has never sued the HOA nor had any lawsuit settled by any insurance company. These claims were made in the letter recently distributed by Chris Zachar. The claims are baseless and totally inaccurate.
Unfortunately, the offending homeowners have now expanded their instances of nuisance to the Association. Indeed, another homeowner in the community has witnessed one of the offending homeowners tossing pool debris from his pool into the adjacent back yard. This was then followed up by several drowned, dead animals being deposited in his neighbor’s backyard – where humans and dogs may encounter the carcass and become sick. The Association has gathered a substantial number of videos depicting the same offending homeowner throwing trash into another neighbor’s backyard and peering into the backyard and/or house of his neighbor on numerous occasions. In other words, despite being a named defendant in litigation regarding nuisance-related claims by the Association, the defendant has adopted a practice of gratuitously escalating disputes with neighbors, potentially exposing him to criminal charges and injunctions against harassment by the impacted neighbors. Furthermore, after viewing the videos, the HOA insurance company, which was open to settling the case with a cash offer to the offending homeowner, has fully retracted that offer to settle. In other words, even the HOA Insurance company has found this behavior so egregious that they apparently would rather absorb the expense of going to court and win for the HOA rather than settle.
Either the homeowners of the beautiful Preserve at Shadow Mountain community have a set of CC&Rs upon which they can rely to guide their conduct – rules and regulations designed to preserve and maintain community property values – or each property owner is free to act without consideration for the rules set forth by the CC&Rs. If the Association Board disregarded the good faith complaints of one homeowner, the Association would be exposed to litigation for selective enforcement of the CC&Rs. It would also permit homeowners to do as they please within the community, without regard for any of the rules the remainder of the community do follow. And when one property owner decides to disregard the CC&Rs because he is “living his life,” refusing to turn down the offending music, refusing to wear earphones, refusing to work collaboratively to find a mutually amicable solution to the dispute, and instead escalates matters by dumping trash in neighboring backyards and peering into the backyard and house of his neighbors, the involvement of the Board is necessary.
This Board will not be intimidated by poorly written and purposely deceptive letters sent out by ‘Old Board’ members who apparently hold a grudge. We have had nearly a decade of peace and quiet, no shouting matches at meetings, no money disappearing into favored pockets, no lies about gates and bizarre punitive actions if one even dared question the Board; no more rigged elections with bogus recounts, no attorney who for a price would harass a homeowner on the Boards request – those of you who have lived here for a while will remember these and many more. In the meanwhile, the HOA bank accounts have grown to the highest level ever through sound and wise management by the Treasurer Mike Pestano. Roads have been resurfaced, new gates installed, landscaping maintained, and numerous other day-to-day issues quickly and efficiently resolved. In the same time period, there have been practically no complaints or disputes and when there were, they were minor and quickly resolved with a phone call, visit or handshake.
So yes, by all means, let them scream and holler and write letters and in the process expose their true intentions. We wisely spent money to protect you and your rights and the integrity of the CC&Rs, the Community and the value of your home. The CC&Rs also require that when we prevail, the offending homeowner will have to pay all the HOA legal fees. Now you understand why you received a letter – get rid of this Board then the ‘New Old Board’ will drop the suit, their friend gets off, the victim remains a victim and subject again to illegal and immoral actions. By ending the suit, we end up paying the HOA legal fees AND the offending homeowners fees.
They win, you lose.
With any other Board… we will wish you the best of luck. At election time think about that – do you have a Board who will fight for you and your rights or one that will run a petty fiefdom that favors their friends at your expense?
As board president, I can provide interested homeowners with more information on the dispute, as well as some of the evidence set forth above. I can be reached by email – email@example.com (best) or by text at 480.577.4007 after business hours.
If you would like to see some of the video evidence, you can see it here: https://psmhoaonline.com/Kulpins
Victor Felice, President.
Preserve at Shadow Mountain Homeowners Association
Vic Sibilla, Vice President.
Mike Pestano, Treasurer.