Politics can be an ugly business, but the battle currently raging between the Hiwan Homeowners Association board and some of its constituents makes standard election-year mudslinging seem cordial by comparison.
Since its board launched a campaign to revise the subdivision’s covenants earlier this year, Hiwan Country Club residents have been treated to a sustained blizzard of fliers, mailings, accusations, recriminations, charges and countercharges. The increasingly bitter war of words has pitted neighbor against neighbor and produced a climate of fear and mistrust on both sides. At stake is the character of one of Evergreen’s most prominent neighborhoods for the foreseeable future.
The HHA board sparked the conflict by firing a pair of volleys intended to improve Hiwan’s appearance and shore up property values. First, it began stringently enforcing decades-old and rarely invoked covenants, most notably those prohibiting homeowners from parking pop-up trailers and recreational vehicles in their driveways. Charges of arbitrary — even targeted — enforcement were quickly lodged by some homeowners and, just as quickly, denied by the board. Either way, the sudden flurry of violation notices raised hackles in many quarters, including some where no violations had been cited. A group calling itself Concerned Hiwan Homeowners emerged to challenge the new order and set the stage for the conflict’s main event.
Hiwan’s covenants date to the country club’s founding in 1963 and must be renewed every 25 years by the unanimous approval of its homeowners. Rather than allow the contract to expire naturally in 2013 and gamble that every one of Hiwan’s 368 households will agree on an amended document, several months ago the board moved to amend the covenants five years ahead of schedule.
“If we wait until the covenants expire, even one person could refuse to renew them, and then we’d revert to county zoning,” explains HHA president Tom McClintock. “Under Jeffco MR-1 zoning, you could wake up one morning and find out your next-door neighbor is running a boardinghouse in his home, or raising livestock in his yard.”
“Nobody here doesn’t want covenants,” says Becky Hicks, a member of Concerned Hiwan Homeowners. “We moved here because we wanted to live in a nice, controlled community. But this board is acting way beyond its authority and using its power to harass people who disagree with what it wants to do.”
Among the things the HHA board wants to do is make its proposed covenants stand in perpetuity. To get around limitations imposed by Hiwan’s original charter, it declared “the club” to be a Common Interest Community, or CIC, under Colorado’s 1992 Colorado Common Interest Ownership Act. If proper, such a designation would allow the board to change Hiwan’s covenants more or less at will and with the consent of just 66.7 percent of homeowners. Whether Hiwan actually qualifies as a CIC is a matter of fierce — albeit unilateral — debate.
According to Hicks, the country club doesn’t meet the legal definition of a CIC on several points. For one thing, its homeowners own no property in common.
“The Hiwan Golf Club is privately owned,” says Hicks. “The law states that to be a Common Interest Community, the homeowners have to own real estate in common, and Hiwan doesn’t.”
In addition, most CICs are declared as such in their founding documents and operate under specific guidelines. Not so, Hiwan.
Still, the law runs to dozens of pages, has been tweaked by the legislature twice, and, in law, interpretation can be everything.
“This came up before several years ago,” says nine-year HHA board member Erhard Wiesner. “At the time, we dropped it because a lot of people didn’t like the idea and our lawyers said the law could be argued either way. Every board until this one decided it would be unfair to pursue becoming a CIC when there was no clear-cut way to determine if we qualified. When I told that to the current board, they just laughed at me.”
As the board’s single voice against its CIC efforts, Wiesner occupies a rather inconvenient position in the HHA. Not long ago, after Wiesner mailed homeowners a letter detailing his reasons for opposing the board’s plans, his fellow board members took the extraordinary step of publishing a “special edition” HHA newsletter accusing him of making false statements, working to destroy the homeowners association and damaging the community at large.
“It cost them $1,000,” Wiesner says. “I don’t think that’s an appropriate use of HOA money, but they’ll do anything to get their way.”
Anything but state their position in a clear and forthright way, says Hicks.
“A big part of our frustration is that they won’t come right out and tell us why they think we’re a CIC,” she says. “We’ve asked them a hundred times, our lawyer has asked them, and they just won’t tell us what their legal justification is.”
“They’re trying to find out what our reasoning is, and we refuse to tell them,” explains HHA board secretary Ben Schwartz. “The law doesn’t require us to share our position with them, and we don’t intend to.”
Though unwilling to tip the board’s hand, Schwartz insists it’s holding a pair of aces.
“We have two legal position papers from top CIC firms that very clearly support our case.”
If so, Weisner would like very much to look them over.
“I heard about those, and I’ve asked just about everybody on the board to show them to me,” Wiesner says. “I’ve been told that they don’t exist, that they’re not available, and that I just can’t see them.”
According to Schwartz, the fact that Concerned Hiwan Homeowners retained counsel suggests an impending lawsuit, something Hicks strenuously denies.
“We’re not out to sue anybody, even if we could afford to, which we can’t,” says Hicks. “The board has at least $100,000 they can spend on lawyers. We can’t possibly compete with that.”
On the flip side, Concerned Hiwan Homeowners member Paula Madok says the board has threatened to sue her on at least one occasion, something Schwartz strenuously denies.
“That’s a bald-faced lie,” says Schwartz. “If they can prove that anyone, any time, threatened to sue anybody, I’ll give them a thousand dollars for their trouble.”
Madok pulls a letter dated Oct. 9 from a file folder stuffed with violation notices. It’s from HHA vice president Rocky Graziano, who also heads the board’s architectural review committee. The letter addresses Madok’s failure to comply with the committee’s order to begin building a service yard on her property and reads, in part, “we are reluctant to take legal action in this matter, but we will be forced to do so if no action is taken to submit these plans by October 30.”
“I don’t know what they’d call it,” Madok says, “but I call that a threat.”
At present, the board can do little more than bide its time and hope the needed 246 consent forms eventually trickle in from the neighborhood. Until they do — and the board has set no time limit on the drive — the actual number of signed consent forms in its possession remains a closely guarded secret.
“We don’t see any need to share that information with anybody,” says Schwartz. “But we’re well on our way, I can tell you that.”
Whether or not Hiwan’s board reaches that goal, and whether or not Hiwan meets the legal definition of a Common Interest Community, the personal damage within one of Evergreen’s oldest and most respected neighborhoods is significant.
There’ve been so many hard words, angry e-mails and hurt feelings it may be difficult for once-friendly neighbors to simply bury the hatchet. And if the fighting’s been furious, at times, it’s because the conflict swirling around Hiwan Country Club isn’t really about consent forms, or covenants, or even pop-up trailers. It’s about the ultimate purpose and proper role of the HHA board.
“Our position is that our board has a fiduciary responsibility to maintain the ambience, appearance and value of the community in the broadest possible sense,” McClintock says. “Our lawyers say we’re a CIC, and I’m satisfied that we are.”
“I think it’s the fiduciary responsibility of this board to explore both sides of the issue, educate the homeowners, and do what’s right for everybody,” says Wiesner. “Right now, they’re acting like they’re the only ones who know what’s right and hiding behind their lawyers.”
“I think it’s this board’s fiduciary responsibility to protect the sense of community that Hiwan’s always had, and instead they’re creating fear and mistrust,” says Hicks. “It’s not right that we have to go through all this just to find out what they’re doing. It’s not too much to expect a little transparency from your HOA.”
Contact staff writer Stephen Knapp at email@example.com or 720-261-1665.