Hiwan covenant war reaches uneasy truce

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By Stephen Knapp

While recent court rulings have effectively ended open hostilities in the bitter covenant dispute that has raged across Hiwan Country Club for the better part of two years, they've done little to reconcile competing theories of proper neighborhood management, and even less to mend a whole bunch of badly broken fences.

"There's still a lot of ill will, and not a lot of trust on either side," says Hiwan Homeowners Association president Tonya Cameron. "I hope that improves, because we still have to pass some new covenants by 2013 if we want to continue to be a covenant-protected community, and we'll need to come together as a community to do that."

And getting Hiwan's two warring camps to make nice could be a trick, considering the anger and acrimony that have marked the last two years. What began in 2007 as a fairly straightforward disagreement between an activist HOA board attempting to strengthen the subdivision's covenants and an independent-minded company of Hiwan residents committed to a more casual form of neighborhood governance quickly devolved into an emotional feud pitting neighbor against neighbor in a battle for nothing less than Hiwan's figurative soul.

On one hand, the 10-member HHA board declared Hiwan a Community Interest Community under the Colorado Common Interest Ownership Act, which legal distinction would give the board power to change the covenants at will, so long as 67 percent of dues-paying HOA members agreed. On the other, a group calling itself Concerned Hiwan Homeowners flatly rejected the board's assumed CIC status on the grounds that Hiwan residents own no property in common. Positions hardened, both sides retained counsel, the matter eventually found its way onto the desk of Jefferson County District Judge Jack Berryhill, and, in August 2008, round one went to the board.

In a nine-page decision citing precedents dating to 1831, Berryhill found that Hiwan meets the legal definition of a CIC in great part because, although its residents don't pay assessments, duties or maintenance on common property, they are required to furnish monies "to an association that provides services or facilities … to the individually owned property, or that enforces other servitudes burdening the property in the development or neighborhood."

Or, at the risk of oversimplifying a rather protracted ruling, the message to CHH was a blunt "you pay dues, you lose."

Even so, the board's victory was largely academic. As Berryhill pointed out in his decision, "… since the parties have agreed that at the present time the minimum percentage approval of the proposed amendments to the Restrictive Covenants has not been met …,” the whole covenant question remains, for the time being, moot.

Unwilling to accept what they deemed a misguided ruling, a handful of CHH members, at their own expense, kicked the matter up to the Colorado Court of Appeals. On July 9 of this year, a three-judge panel upheld Berryhill's reasoning across the board. According to former HHA board member Ben Schwartz, the verdict will echo far beyond Hiwan's quiet streets.

"I call the appellate court's review a 'landmark decision' because to date there had not been any Colorado court that construed the 1982 statute that defined the term 'Common Interest Community,’ " Schwartz writes in a letter to the Canyon Courier dated Aug. 1, 2009. "Apart from its obvious importance to our association, the significance of the appellate court's holding has a salutary effect on other homeowner associations, such as 'zero lot line' communities that consider themselves to be CICs, even though they neither own nor maintain any commonly owned property."

Ironically, while the HHA now enjoys concrete legal authority to amend Hiwan's covenants, its chances of enacting the changes proposed in 2007 are, at present, slim to none. For starters, the board has yet to persuade even 50 percent of its constituents to sign off on the controversial amendments. What's more, within weeks of Berryhill's board-friendly decision, Hiwan voters ousted four CIC stalwarts and replaced them with residents more in sympathy with CHH, including president Cameron. And as the board's new composition makes abundantly clear, Hiwan's troubles are rooted not in technical definitions but in competing visions.

"I have no opinion on the CIC issue, and I'm satisfied with the court's decision," Cameron explains. "But I wasn't in favor of the proposed covenants, and I didn't like the process."

Because the board now stands evenly divided, with five members supporting a hands-on HOA and five preferring a lighter touch, the board recently resolved to break the deadlock by reducing its number by one during next month's election cycle. Of the three seats coming up for grabs, two are currently occupied by old-guard members, and the third belongs to Erhard Wiesner, who spent the last two years as the board's sole dissident favoring the CHH position.

"If we can just get one person with our point of view to take my seat, we'll have a majority," Wiesner says. "So far, nobody's applied for any of the positions. Me? I've had enough."

Should the 2013 deadline pass without action, it could require an unlikely 100-percent homeowner approval to re-covenant the neighborhood, which is why most club residents tacitly support updating Hiwan's guiding principles sooner rather than later. Exactly what the new rules will look like, however, and how much leeway the board should have in enforcing them, remain subjects of intense debate.

"At the last board meeting, one of the old board members actually chastised the architectural review committee for not going around the neighborhood actively looking for violations," Wiesner says. "I'd like the covenants to say, very clearly, that the board should be reactive only."

Either way, he should know soon. The subdivision's governance committee, carefully composed of folks from both sides of the fence, is even now hammering out a draft for general consideration.

"They've been working on it since October, and they're getting pretty close to something we can submit to the homeowners," Cameron says. "Nobody's going to get 100 percent of what they want, but they've agreed to disagree, and they're coming to some pretty reasonable covenants. Hopefully, we can turn them over to the homeowners at our November board meeting, open them up for suggestions or changes, and get 67 percent of the residents to approve them."

And, should that happen, it’s hoped that the new covenants will be embraced by all, old animosities will quickly fade, and everybody from Bergen Parkway to Lewis Ridge Road can get back to living in neighborly peace. Erhard Wiesner certainly hopes so, but he's not convinced it will be that easy.

"There's still a lot of anger out there, and a lot of hurt feelings," he says. "It could take a long time to mend those fences."