Recently it was discovered that Surfside Board Members and Managers had allowed illegal cutting, removal, storage and burying of the removed asbestos pipe. Surfside was fined and some of the people involved were criminally investigated.
It was also discovered that they moved soil into a wetland, and built a building, without permits. There are fines and Surfside is now required to purchase wetlands to replace what they damaged. More costs to be paid by the property owners.
There has been a flurry of false covenant violations made against the property owners, which have ended in a variety of lawsuits. These included the Durdels, Ottersens and Johansens. There may be others but frequently actions are taken by Surfside in secret, and sometimes even some of the board members are not informed of the actions. Of those we are aware of, most were won by the property owners. We understand that these costs far exceeded $100,000, but we are also aware that the HOA filed many other lawsuits that were not mentioned at board meetings and the details of these were hidden from the members.
It appears that Surfside HOA is controlled by a small group of people. This group seems to be involved in all of the above and includes most of the members of the board. What Solutions are available for the mass of members to get and maintain control of the board?
I am not an attorney, these are my beliefs and understandings.
Patrick Johansen
Surfside, RCW, County, Possibly Federal Violations
Surfside HOA, Ocean Park, WA
The following letter was sent to Pacific County Prosecutor Mark McClain, and Pacific County Commissioners Frank Wolfe, Lisa Ayers and Lisa Olsen on 5/24/2017 by Patrick Johansen, a Surfside HOA Board Member. It seems probably that these Surfside HOA, Ocean Park, WA could be in violation of Rico Laws due to the actions of the Board Members.
[email protected]; [email protected]; [email protected]; [email protected]
I am Patrick Johansen, and I am one of the current Board members of Surfside Homeowners Association (SHOA). I am writing to you both about a long term fix and an immediate situation. I will send a second summary of the immediate situation which I promise will be shorter.
I was surprised by some of the activities of the Board before I became a Board member, but appalled as I witnessed more after I became a Board member. This is not your usual HOA and it does not fulfill the usual HOA functions. It is my opinion that a faction of the SHOA Board (“Faction “ or Board Faction”) is significantly violating County Ordinances, State Laws, State Laws about Trustee responsibilities, the bylaws of the SHOA and its Operations Manual and possibly even violating RICO laws.
SHOA is one of the largest HOAs in the State of Washington with revenues exceeding one million dollars per year. There are about 2500 properties owned by about 2200 members. It provides police protection for the HOA, trash disposal and construction and maintenance of a multi-million-dollar potable water system for its members. It has the equivalence of a Building Permit and City Planning department of government and provides other services usually reserved to a governmental agency. It cites members of SHOA and enforces collection of fines under threats of foreclosure after court action without provisions for an appeal to an independent body or jurist. It sets and collects “taxes” in the form of lot assessments and dues. There is no real appeal to anyone except the Board Faction that originally cited the member.
I am not an attorney but I am informed and believe that there are many violations of state and federal laws by a controlling the Faction. All allegations herein are based on information and belief and are my opinions.
There is a small Faction of our community that have taken over the community. They abuse their power to maintain control and keep their members on the board and terrorize and control the community. This Faction uses the authority and money of the HOA to bully and manipulate the rest of the members.
The Board refuses to follow due process and basic parliamentary process in their proceedings. They use selective enforcement of the SHOA covenants and selective enforcement of other laws to manipulate the membership. Many of the members are afraid to run for the board or make public statements in fear of retaliation. The board threatens with court action to intimidate members, because they are using the HOA’s money vs the individual member having to risk his own money going to court. I have collected significant evidence of what I believe are violations of law but there is much more in the tapes of the meetings, which I have been illegally blocked from copying, and in emails that could be subpoenaed but won’t be released to me as a Board Member. I am certain that there are many other violations of law and bylaws that I am not aware of that would be discovered in a proper investigation with subpoena power.
Our SHOA members only have the right to vote on two things, the budget and the trustees. As to the budget, the bylaws require such a huge number of persons cast opposing votes that it virtually cannot be defeated once the Board publishes it. Therefore, the only thing the SHOA members can vote upon, realistically, are the Board trustees. The individual SHOA members have no vote in individual issues. There is a maximum of 9 members on the Board, so 5 people realistically control everything for the entire HOA. It is my opinion that the Board Faction is run more like a gang then a government. There is little or no due process given SHOA members on fine issues, conflicts of interests are ignored and illegal trespassing by some Board members and Committeemen occurs even after warnings from the Sheriff. Misrepresentation of the SHOA covenants are made by the Board Faction and committee members. I believe the Board Faction misrepresents the authority of the SHOA with the intent to defraud, and that practice runs rampant. There is no equality of enforcement of the bylaws, or of local or state laws in the SHOA. The Board Faction, through harassment, misrepresentation, threats, and collusion, can and does maintain control of the SHOA and its Board as currently constituted.
There has been much public discussion (anonymous blog) between the members of SHOA, as to how the Surfside issues, decided exclusively by the Board, have a different financial impact on different members and their property values. This difference range could be in millions of dollars. I believe that SHOA violation citations are being issued to control that profit. It is my opinion that the controlling faction of the Board is failing to equally enforce covenants, and is manipulating the operation of SHOA for the financial benefit of the Faction. It is my opinion that a controlling faction of the SHOA Board is doing the following:
Usurping Authority. Members of our Board as well as members of its Architectural Committee have repeatedly represented to the members of SHOA that they had the authority to enforce County Ordinances. SHOA has sometimes fined people or threatened to fine people based on their opinion that the member was violating a County Ordinance. I am not an attorney but it is my opinion that is fraud and extortion. In an annual meeting Board Treasurer, Chris Hanson, represented that the County had given authority to SHOA to enforce County ordinances. Commissioner Frank Wolfe was at that meeting and witnessed this personally. I later talked to Frank Wolfe and he assured me that the County had not granted that authority to SHOA. In a recent court case Board Member Kirby Smith actually told the Judge that SHOA had the authority to enforce County ordinances, while I can show you an email from our current board President admitting that SHOA does not have that authority.
Although I have confronted the entire Board on falsely claiming that they have the authority to enforce their interpretation of County Ordinances, they continue to do so.
Frequently Board members have written letters using the Surfside signature block, thus representing that they are speaking for SHOA. They have done this without a Board vote, thus as individuals they are usurping the authority of the Board. Our current President frequently makes decisions outside of board meetings with only the Faction board members involved, with the other board members unaware of the actions.
I understand some Faction members who are also individual property owners of Surfside, under their own volition, with no Board vote, went to a variety of meetings including the State Shoreline meetings and represented that they were there to represent SHOA. I did not personally witness this but I understand that another current Board member did. He has verbally agreed to testify if asked.
Faction Board Members have also contacted our SHOA attorney on their own, running up attorney’s fees for the HOA without a Board vote. They did so after member Thomas Brazier, indicated in writing they may be violating certain RCW laws, such as the Open Meetings Act and the disclosure of public document acts and making decision without public notice and in some cases without a quorum. They refuse to share that response advice from local counsel with the SHOA members. They at times would not share letters they wrote, or letters that SHOA attorney wrote. In some cases they refuse to get the attorney’s opinion in writing. The Board Faction members will only tell us what they feel the SHOA attorney might have said. I believe much more is withheld from the other property owners of Surfside.
In my opinion, the base motivation for these actions is financial, as some of the Board members and other members have stated so, indicating that their decisions are based on increasing the value of their properties.
Withholding information illegally – I believe that SHOA is in violation of RCW 64.38.045 (2)
RCW 64.38.045 (2) provides, in relevant part, that
“All records of the association, including the names and addresses of owners and other occupants of the lots, shall be available for examination by all owners, holders of mortgages on the lots, and their respective authorized agents on reasonable advance notice during normal working hours at the offices of the association or its managing agent. The association shall not release the unlisted telephone number of any owner. The association may impose and collect a reasonable charge for copies and any reasonable costs incurred by the association in providing access to records.” (Emphasis added is mine.)
I purchased a member list about 6 months ago, but found that the list I received was incomplete and about 60% incorrect, with incorrect owner’s names and contact information. I believe that the inaccuracies in the list were intentional, as I understand the list comes from our billing system.
After I requested an updated list a year later, the office manager and president refused to supply it, to me and to others, because they knew we were using it to contact members about the election of the board. The board voted in the next board meeting to increase the cost of obtaining the membership list from $10 to $100. I don’t believe this meets the criteria for “reasonable”. Secondly, they voted to bar members from receiving the phone number and email addresses of those members. I believe this violates RCW 64.38.045 (2).
On 5/15/2007, the office manager refused to follow the covenants, bylaws and policies of SHOA and also the law, and supply the member list to members for the usual $10 fee. This was before the above decision. Our property owners turn over by about 20% per year and over 80% of the ownership does not live in Surfside and only visit on occasion. Refusing to equally share the member list makes it impossible to communicate with the membership for those who are not allowed to have copies of it. I believe it is obvious that this is an effort to stifle freedom of speech and to dramatically influence the outcome of trustee elections. Both the Board Secretary, George Miller and I complained to the Board President Jim Flood, but our business manager emailed me saying that she had talked with Jim Flood and he agreed that she could refuse to provide the list to select members.
This is happening now, 5/15/2017, during an election period, where the lack of contact information can make a significant difference in which candidates are elected. In this environment, the results of the election can dramatically negatively affect the property values and enjoyment of their property by some property owners, and increase the value and enjoyment of their properties by other property owners.
A similar issue arose a few weeks ago when I requested copies of the recordings of a Board meeting. I live three and a half hours from Surfside. I work during the week, and the office is closed on the weekends. I asked the business manager to post the recordings on the web so I could copy them. She refused. As a Board member, I had no practical way to review the recording to verify questionable Board minutes. In the next Board meeting I asked that all the recordings be posted on the web so that we could all refer to them when checking the minutes. The Board then voted not to post on the website and not allow anyone to have a copy of the minutes without a subpoena. Although I had requested copies of the recordings before the vote, they still refused to give me the copies.
One of the effects of these violations of the RCWs is to affect the property rights and property value of certain properties in different financial directions, I believe the motivation for these violations is mostly financial and is for the benefit of a very few including the Board Faction.
Collusion – It is my opinion that extensive collusion occurs between Faction Board members Jim Flood, Kirby Smith, Jim Clancy, Chris Hansen, and our business manager Laura Frazier. Laura Frazier, while not a Board member, is reporting to the Board Faction who supervises her and she has significant control of the flow of information. It is my opinion the collusions extend beyond those individuals. Often information is shared between only a few Board members, and there have been illegal meetings and attempts at illegal meetings where more than a quorum of Board members were present and discussions and deliberations of SHOA issues take place without any notice of the meeting, even to the other Board members. These meetings take place by email, phone, and in person. In most meetings, I believe the Board members have obviously already colluded with each other before coming to the meetings. In one meeting, I proposed creating a blog where the Board members could communicate openly between meetings and the Board members voted it down. This puts the rest of us in a very bad position, being forced to violate open meeting rules in order to have our voices and those that we represent to have a voice.
Laura has frequently copied Kirby Smith on emails but none of the other board members, information appears to be strategically delivered late to non-Faction board members and some not delivered at all.
RCW 64.38.035 (4) states in relevant part,
“Except as provided in this subsection, all meetings of the board of directors shall be open for observation by all owners of record and their authorized agents. The board of directors shall keep minutes of all actions taken by the board, which shall be available to all owners. Upon the affirmative vote in open meeting to assemble in closed session, the board of directors may convene in closed executive session to consider personnel matters; consult with legal counsel or consider communications with legal counsel; and discuss likely or pending litigation, matters involving possible violations of the governing documents of the association, and matters involving the possible liability of an owner to the association. The motion shall state specifically the purpose for the closed session. Reference to the motion and the stated purpose for the closed session shall be included in the minutes. The board of directors shall restrict the consideration of matters during the closed portions of meetings only to those purposes specifically exempted and stated in the motion. No motion, or other action adopted, passed, or agreed to in closed session may become effective unless the board of directors, following the closed session, reconvenes in open meeting and votes in the open meeting on such motion, or other action which is reasonably identified. The requirements of this subsection shall not require the disclosure of information in violation of law or which is otherwise exempt from disclosure.” (Emphasis added is mine.)
In my opinion, Faction Board members have repeatedly violated this law.
ILLEGAL INTERFERENCE WITH AN ELECTION – As stated before, in SHOA the results of the election can dramatically negatively affect the property values and enjoyment of property by some property owners, and increase the value and enjoyment of their properties by other property owners. SHOA has refused to allow me, and select others, to have equal access to the membership list.
Faction Board members have allowed some candidates to post articles in the SHOA official publication , Surfside Weekender, but do not allow opposing viewpoints. The Weekender is used as notification to the members of HOA meetings. But, the mailing list for it does not include all members, some are not informed of it. I believe this is another purposeful effort to reduce transparency. The calendar of meetings is also posted on the Website but I don’t believe that posting on the website is valid notice.
As the intent of these violations of the RCW affect the property rights and property value of certain properties in different financial directions, the motivation for these violations is mostly financial.
ILLEGAL TRESPASSING – Board Members and Committee Members have frequently trespassed on property to harass members. On my property they trespassed, moved objects and turned on the water and left the water on, not running, but the main valve on. Had my RV had a leak or had a faucet opened, this could have caused significant damage. Board Member Kirby Smith stated in a public meeting that he was annoyed because he attempted to peep in my windows and my window coverings did not allow him to see inside. I have been blocked from obtaining the recording of that meeting.
The Board created a document that they require property owners to sign when building or significantly modifying any structure. The property owner is force to sign a document which states,
“The Owner hereby irrevocably grants consent for Surfside employees, members of the Surfside Architectural Committee and other representatives of Surfside to enter onto the Property, now and in the future, for inspection related to the Project including, without limitation, whether the Project should be approved, whether the Project as constructed, or as being constructed, complies with the approval granted and with the Covenants of Surfside and whether there is any change to the Project in the future.
The Owner herby releases Surfside, the employees of Surfside, the members of the Surfside Architectural Committee and other representatives of Surfside from any and all liability in anyway related to and/or arising out of entry onto the Property pursuant to this Ongoing Authorization to Enter on Property.”
In other words, if the property owner wants to build any structure on their property, or change or modify it in any significant way, they are blackmailed into giving up their privacy and property rights for eternity. They are also required to defend and indemnify all SHOA members trespassing on their property!
I also understand that not all people who have built structures were required to sign this document, only those selected by the Faction Board members.
I understand that at least two of us have filed police complaints against Board and Committee members trespassing on our properties. According to police officer Travis Ostergaard, Kirby Smith, (Board Member) admitted to trespassing on my property and admitted that Chris Hanson (Board Member) and others had also trespassed on my property. I understand that Chris Hanson has had other trespassing complaints filed against him in the past. According to police officer Ostergaard, he has talked to Chris Hanson in the past, and pointed out that trespassing was illegal.
SPECIAL FAVOR AND UNEQUAL ENFORCEMENT – One example; our covenants state that the exterior materials including siding and roofs of all garages and carports shall match the materials used for the primary residence. As far as I can see all the other properties that have attached or detached garages meet these covenants other than current Board member and Treasurer Jim Clancy, who recently built a large two car garage. It is my opinion that structure is not in compliance with this covenant. Despite several complaints to SHOA about this garage, no action against this violation has been taken by SHOA.
An SHOA covenant states that no houses shall be built taller than 35 feet and the height is measured from the crest of the street that the house is built on. There are multiple houses on J Place that, in my opinion, do not conform to this covenant. There are many other examples of unequal enforcement.
HARASSMENT – The HOA has threatened and harassed property owners by misrepresenting the SHOA covenants and representing to property owners that they had the authority to interpret and enforce their interpretation of the County Ordinances. The property owners were threatened with fines and in some cases were fined, and some may have had liens placed against their properties. Some property owners have sold their properties and moved, or are considering selling and moving, due to the illegal and unethical actions of the HOA. After Randy Durdel won his court case against SHOA, according to Randy, one of the Board members threatened him. He was informed that if he restored his shed, the way the court had allowed, that the Board member would continue to harass him. Randy is afraid to even tell me the name of the Board Member that threatened him.
After Jim Clancy proposed using drones to enforce covenants, and I presented public opposition to that, a drone was flown over my wife’s head while she was in on our property, my neighbors complained to the police when a drone was hovered over my property for about 5 minutes while I was not there, and another police complaint was filed when my neighbor discovered a Faction member trespassing on the fire department property surveilling my property.
SELECTIVE REFUSAL TO APPROVE CONSTRUCTION/ENFORCEMENT – In many cases SHOA enforces covenants against one person but not the property owners with the same issue in nearby properties. SHOA has refused to approve structures even though they cannot find any covenant violation, and in one case, even though the court ruled in favor of another member with the same issue.
FAILURE TO FOLLOW DUE PROCESS – The SHOA consistently fails to allow due process to members seeking to appeal Board action. I personally was falsely accused of violating a covenant. The only appeal process allowed is an appeal to the Board that originally issued the citation! There is no provision for an independent determination of the validity of the matters appealed or for due process of a member. In my appeal to the Board, it could not produce a covenant that I had violated but voted to refuse the approval of my shed and to continue to fine me anyway. During my appeal to same Board that originally issued the citation, the Board refused to see pictures I tried to present as evidence. They could not produce a covenant that I had violated, and would not provide the identity of the person who had made the complaint. The person that I understand filed the complaint was also on the Architectural Committee and is a Faction Board member. One of the other Board members was also a trustee of the Architectural Committee. One of the other board members, Thomas Rogers, pointed out that it was a conflict of interest for those Board members who were on the Architectural Committee voting on an appeal of a matter they instigated and the same for the board member that made the complaint. They voted anyway and the President and our Business Manager Laura, counted the votes of those that should have recused themselves. They decided 5 to 4 to deny approval of my shed.
I wrote requesting an appeal to the Appeal Process detailing all the ways they had violated my due process rights. The Board Faction refused to hear my appeal. I believe they did so without a vote of the Board.
Tree Topping and Trustee Laws. – My understanding is that the trustee laws specify that the trustees of an organization must fairly represent those that choose them as trustees both in financial and other matters.
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RCWs > Title 11 > Chapter 11.98 > Section 11.98.078
11.98.075 << 11.98.078 >> 11.98.080
RCW 11.98.078
Trustee duty of loyalty.
(1) A trustee must administer the trust solely in the interests of the beneficiaries.
Trustee Duties, Liabilities and Compensation, from:
http://www.schoenfeldlaw.com/trustee-duties-liabilities-and-compensation/
The trustee of a trust is under a duty to exercise a high degree of care in administering the trust. This is commonly known as fiduciary responsibility. The following are duties, which exist under Washington law that a trustee must fulfill in administering a trust. By the trust agreement, the creator of the trust can limit or expand the duties and responsibilities of the trustee. If there is a disagreement between the law of the state of Washington and the terms of the trust agreement, the trust agreement must be followed. However, in no event may a trustee rely upon the fact that the trust agreement grants the trustee discretion as relief from the duty to act in good faith and with honest judgment.
Trustee Duties
Duty of Loyalty.
While administering a trust, a trustee must refrain from placing himself or herself in a position where the trustee’s personal interests or those of third parties do or may conflict with the interests of the beneficiary. In short, a trustee must avoid self-dealing. …
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Besides all the issues mentioned above, there are tree topping covenants in Surfside that are designed to protect the views of a small minority of the population, about 350 of 2500 properties. However there are no actual guarantees of a view in Surfside. In spite of that, there are covenants that create different limits of heights of trees on different properties. There is a tree committee made up mostly of members of the 350, that regularly measure the trees and force people to top their trees under threat of fines. At this point I believe the entire committee is made up of members of the 350. These rules are beneficial to the 350 and increase the value of their properties at a significant cost and reduction of property rights and value to the approximately 1400 properties between them and the ocean. This covenant also damages the peace and property values of all the property owners of Surfside. Topping the trees damages the trees, damages and in some cases severely damages the appearance of the property and the property values of those properties as well as the surrounding properties.
SHOA professes to follow the Washington State Firewise program but because the Board Faction wants the tree topping to continue, they refuse to publish in the weekly newsletter the fact that the Firewise program warns against tree topping. The State says that tree topping is a fire hazard and reduces the value of properties.
I believe that the actions of the Faction are risking the fire safety, damaging the physical and mental safety of the members, and damaging the financial safety of the larger part of the community, especially as this community is made up of a large number of elderly and retired people as well as people with low incomes.
PHYSICAL HARM – Many of the members are elderly retirees. The harassment, misrepresentation of the covenants, threats of fines and threat of a lawsuit and the costs involved to defend their rights along with the resulting damage to their properties and lives has caused health issues for them. One member that sold his property told me that he sold it because he was concerned about the damage living here was causing to his heart. I personally have felt the physical toll of the stress caused by this and understand how the unethical, and in my opinion illegal actions of SHOA could be damaging or even fatal to members, especially the elderly, and there is a large percentage of elderly members. Randy Durdel expressed an interested in being elected to the Board. He is one of the members that recently sued SHOA for forcing him to remove a shed roof although his roof did not violate the covenants. He won the case, but felt the stress of situation here had significantly damaged his health. He was going to run for the Board to help fix the problems here, but changed his mind after his ordeal with SHOA due to health reasons.
FINANCIAL HARM – According to the Washington State Department of Resources, topping of trees causes a variety of fire hazards, and reduces the value of properties. 350 properties benefit from the tree topping covenant in Surfside, while 1400 properties are asked to pay for it, the 350 do not pay for it, and about 2200 properties suffer lost property values and continuous damage to their enjoyment of their property investment. The property values of Surfside lots are lower than other similar property values on the peninsula. The property values in Surfside continue to decrease while the property values on the rest of the peninsula have been increasing.
The misrepresentation of the covenants, threatening, harassment, unequal enforcement, lack of due process, and general corruption faced by the members of Surfside causes an excessively high turnover in properties further reducing the property values and the enjoyment of the property owner’s investment.
RV USAGE – RVers are not allowed to use their land full time. The restrictions on the RV lots decrease the value of the lots and the enjoyment of the property investment of the RVers. It also makes it very difficult for the RVers to participate in the governance of SHOA. The RVers that are forced to remove their RVs from their properties can RENT space in a storage facility in SHOA but are over-charged according to our Articles of Incorporation and they cannot live in their RVs in the storage facility. The RV facility runs at a profit. Even though this has been discussed many times, in and out of board meetings, The Board Faction refuses to allow a change to be made.
The HOA Faction seems to have an undo-influence over the County. The County Ordinances grant the right for every property owner to have one RV on their lot year round as long as they don’t live in it, except in Surfside.
The County actually created an ordinances that singles out Surfside as the only place the County that I am aware of where RVs are not allowed to leave on RV on their lot year round. The County Ordinances specify that each parcel can have one RV on their lot year round, but a separate ordinance says that the RV ordinances for Surfside are the covenants. This is not so for anyplace else in Pacific County including all the other HOAs. It would seem that this would be an illegal ordinance.
CONCLUSION – I have significant documentation and proof of the above violations and a proper investigation could reveal significantly more. There are many others who could testify to what I have explained above. I believe the evidence is abundant and overwhelming.
I am an HOA board member but writing this letter as an individual. This letter has not been approved by the board.
Patrick Johansen [email protected] I am Patrick Johansen, and I am one of the current Board members of Surfside Homeowners Association (SHOA). I am writing to you both about a long term fix and an immediate situation. I will send a second summary of the immediate situation which I promise will be shorter.
I was surprised by some of the activities of the Board before I became a Board member, but appalled as I witnessed more after I became a Board member. This is not your usual HOA and it does not fulfill the usual HOA functions. It is my opinion that a faction of the SHOA Board (“Faction “ or Board Faction”) is significantly violating County Ordinances, State Laws, State Laws about Trustee responsibilities, the bylaws of the SHOA and its Operations Manual and possibly even violating RICO laws.
SHOA is one of the largest HOAs in the State of Washington with revenues exceeding one million dollars per year. There are about 2500 properties owned by about 2200 members. It provides police protection for the HOA, trash disposal and construction and maintenance of a multi-million-dollar potable water system for its members. It has the equivalence of a Building Permit and City Planning department of government and provides other services usually reserved to a governmental agency. It cites members of SHOA and enforces collection of fines under threats of foreclosure after court action without provisions for an appeal to an independent body or jurist. It sets and collects “taxes” in the form of lot assessments and dues. There is no real appeal to anyone except the Board Faction that originally cited the member.
I am not an attorney but I am informed and believe that there are many violations of state and federal laws by a controlling the Faction. All allegations herein are based on information and belief and are my opinions.
There is a small Faction of our community that have taken over the community. They abuse their power to maintain control and keep their members on the board and terrorize and control the community. This Faction uses the authority and money of the HOA to bully and manipulate the rest of the members.
The Board refuses to follow due process and basic parliamentary process in their proceedings. They use selective enforcement of the SHOA covenants and selective enforcement of other laws to manipulate the membership. Many of the members are afraid to run for the board or make public statements in fear of retaliation. The board threatens with court action to intimidate members, because they are using the HOA’s money vs the individual member having to risk his own money going to court. I have collected significant evidence of what I believe are violations of law but there is much more in the tapes of the meetings, which I have been illegally blocked from copying, and in emails that could be subpoenaed but won’t be released to me as a Board Member. I am certain that there are many other violations of law and bylaws that I am not aware of that would be discovered in a proper investigation with subpoena power.
Our SHOA members only have the right to vote on two things, the budget and the trustees. As to the budget, the bylaws require such a huge number of persons cast opposing votes that it virtually cannot be defeated once the Board publishes it. Therefore, the only thing the SHOA members can vote upon, realistically, are the Board trustees. The individual SHOA members have no vote in individual issues. There is a maximum of 9 members on the Board, so 5 people realistically control everything for the entire HOA. It is my opinion that the Board Faction is run more like a gang then a government. There is little or no due process given SHOA members on fine issues, conflicts of interests are ignored and illegal trespassing by some Board members and Committeemen occurs even after warnings from the Sheriff. Misrepresentation of the SHOA covenants are made by the Board Faction and committee members. I believe the Board Faction misrepresents the authority of the SHOA with the intent to defraud, and that practice runs rampant. There is no equality of enforcement of the bylaws, or of local or state laws in the SHOA. The Board Faction, through harassment, misrepresentation, threats, and collusion, can and does maintain control of the SHOA and its Board as currently constituted.
There has been much public discussion (anonymous blog) between the members of SHOA, as to how the Surfside issues, decided exclusively by the Board, have a different financial impact on different members and their property values. This difference range could be in millions of dollars. I believe that SHOA violation citations are being issued to control that profit. It is my opinion that the controlling faction of the Board is failing to equally enforce covenants, and is manipulating the operation of SHOA for the financial benefit of the Faction. It is my opinion that a controlling faction of the SHOA Board is doing the following:
Usurping Authority. Members of our Board as well as members of its Architectural Committee have repeatedly represented to the members of SHOA that they had the authority to enforce County Ordinances. SHOA has sometimes fined people or threatened to fine people based on their opinion that the member was violating a County Ordinance. I am not an attorney but it is my opinion that is fraud and extortion. In an annual meeting Board Treasurer, Chris Hanson, represented that the County had given authority to SHOA to enforce County ordinances. Commissioner Frank Wolfe was at that meeting and witnessed this personally. I later talked to Frank Wolfe and he assured me that the County had not granted that authority to SHOA. In a recent court case Board Member Kirby Smith actually told the Judge that SHOA had the authority to enforce County ordinances, while I can show you an email from our current board President admitting that SHOA does not have that authority.
Although I have confronted the entire Board on falsely claiming that they have the authority to enforce their interpretation of County Ordinances, they continue to do so.
Frequently Board members have written letters using the Surfside signature block, thus representing that they are speaking for SHOA. They have done this without a Board vote, thus as individuals they are usurping the authority of the Board. Our current President frequently makes decisions outside of board meetings with only the Faction board members involved, with the other board members unaware of the actions.
I understand some Faction members who are also individual property owners of Surfside, under their own volition, with no Board vote, went to a variety of meetings including the State Shoreline meetings and represented that they were there to represent SHOA. I did not personally witness this but I understand that another current Board member did. He has verbally agreed to testify if asked.
Faction Board Members have also contacted our SHOA attorney on their own, running up attorney’s fees for the HOA without a Board vote. They did so after member Thomas Brazier, indicated in writing they may be violating certain RCW laws, such as the Open Meetings Act and the disclosure of public document acts and making decision without public notice and in some cases without a quorum. They refuse to share that response advice from local counsel with the SHOA members. They at times would not share letters they wrote, or letters that SHOA attorney wrote. In some cases they refuse to get the attorney’s opinion in writing. The Board Faction members will only tell us what they feel the SHOA attorney might have said. I believe much more is withheld from the other property owners of Surfside.
In my opinion, the base motivation for these actions is financial, as some of the Board members and other members have stated so, indicating that their decisions are based on increasing the value of their properties.
Withholding information illegally – I believe that SHOA is in violation of RCW 64.38.045 (2)
RCW 64.38.045 (2) provides, in relevant part, that
“All records of the association, including the names and addresses of owners and other occupants of the lots, shall be available for examination by all owners, holders of mortgages on the lots, and their respective authorized agents on reasonable advance notice during normal working hours at the offices of the association or its managing agent. The association shall not release the unlisted telephone number of any owner. The association may impose and collect a reasonable charge for copies and any reasonable costs incurred by the association in providing access to records.” (Emphasis added is mine.)
I purchased a member list about 6 months ago, but found that the list I received was incomplete and about 60% incorrect, with incorrect owner’s names and contact information. I believe that the inaccuracies in the list were intentional, as I understand the list comes from our billing system.
After I requested an updated list a year later, the office manager and president refused to supply it, to me and to others, because they knew we were using it to contact members about the election of the board. The board voted in the next board meeting to increase the cost of obtaining the membership list from $10 to $100. I don’t believe this meets the criteria for “reasonable”. Secondly, they voted to bar members from receiving the phone number and email addresses of those members. I believe this violates RCW 64.38.045 (2).
On 5/15/2007, the office manager refused to follow the covenants, bylaws and policies of SHOA and also the law, and supply the member list to members for the usual $10 fee. This was before the above decision. Our property owners turn over by about 20% per year and over 80% of the ownership does not live in Surfside and only visit on occasion. Refusing to equally share the member list makes it impossible to communicate with the membership for those who are not allowed to have copies of it. I believe it is obvious that this is an effort to stifle freedom of speech and to dramatically influence the outcome of trustee elections. Both the Board Secretary, George Miller and I complained to the Board President Jim Flood, but our business manager emailed me saying that she had talked with Jim Flood and he agreed that she could refuse to provide the list to select members.
This is happening now, 5/15/2017, during an election period, where the lack of contact information can make a significant difference in which candidates are elected. In this environment, the results of the election can dramatically negatively affect the property values and enjoyment of their property by some property owners, and increase the value and enjoyment of their properties by other property owners.
A similar issue arose a few weeks ago when I requested copies of the recordings of a Board meeting. I live three and a half hours from Surfside. I work during the week, and the office is closed on the weekends. I asked the business manager to post the recordings on the web so I could copy them. She refused. As a Board member, I had no practical way to review the recording to verify questionable Board minutes. In the next Board meeting I asked that all the recordings be posted on the web so that we could all refer to them when checking the minutes. The Board then voted not to post on the website and not allow anyone to have a copy of the minutes without a subpoena. Although I had requested copies of the recordings before the vote, they still refused to give me the copies.
One of the effects of these violations of the RCWs is to affect the property rights and property value of certain properties in different financial directions, I believe the motivation for these violations is mostly financial and is for the benefit of a very few including the Board Faction.
Collusion – It is my opinion that extensive collusion occurs between Faction Board members Jim Flood, Kirby Smith, Jim Clancy, Chris Hansen, and our business manager Laura Frazier. Laura Frazier, while not a Board member, is reporting to the Board Faction who supervises her and she has significant control of the flow of information. It is my opinion the collusions extend beyond those individuals. Often information is shared between only a few Board members, and there have been illegal meetings and attempts at illegal meetings where more than a quorum of Board members were present and discussions and deliberations of SHOA issues take place without any notice of the meeting, even to the other Board members. These meetings take place by email, phone, and in person. In most meetings, I believe the Board members have obviously already colluded with each other before coming to the meetings. In one meeting, I proposed creating a blog where the Board members could communicate openly between meetings and the Board members voted it down. This puts the rest of us in a very bad position, being forced to violate open meeting rules in order to have our voices and those that we represent to have a voice.
Laura has frequently copied Kirby Smith on emails but none of the other board members, information appears to be strategically delivered late to non-Faction board members and some not delivered at all.
RCW 64.38.035 (4) states in relevant part,
“Except as provided in this subsection, all meetings of the board of directors shall be open for observation by all owners of record and their authorized agents. The board of directors shall keep minutes of all actions taken by the board, which shall be available to all owners. Upon the affirmative vote in open meeting to assemble in closed session, the board of directors may convene in closed executive session to consider personnel matters; consult with legal counsel or consider communications with legal counsel; and discuss likely or pending litigation, matters involving possible violations of the governing documents of the association, and matters involving the possible liability of an owner to the association. The motion shall state specifically the purpose for the closed session. Reference to the motion and the stated purpose for the closed session shall be included in the minutes. The board of directors shall restrict the consideration of matters during the closed portions of meetings only to those purposes specifically exempted and stated in the motion. No motion, or other action adopted, passed, or agreed to in closed session may become effective unless the board of directors, following the closed session, reconvenes in open meeting and votes in the open meeting on such motion, or other action which is reasonably identified. The requirements of this subsection shall not require the disclosure of information in violation of law or which is otherwise exempt from disclosure.” (Emphasis added is mine.)
In my opinion, Faction Board members have repeatedly violated this law.
ILLEGAL INTERFERENCE WITH AN ELECTION – As stated before, in SHOA the results of the election can dramatically negatively affect the property values and enjoyment of property by some property owners, and increase the value and enjoyment of their properties by other property owners. SHOA has refused to allow me, and select others, to have equal access to the membership list.
Faction Board members have allowed some candidates to post articles in the SHOA official publication , Surfside Weekender, but do not allow opposing viewpoints. The Weekender is used as notification to the members of HOA meetings. But, the mailing list for it does not include all members, some are not informed of it. I believe this is another purposeful effort to reduce transparency. The calendar of meetings is also posted on the Website but I don’t believe that posting on the website is valid notice.
As the intent of these violations of the RCW affect the property rights and property value of certain properties in different financial directions, the motivation for these violations is mostly financial.
ILLEGAL TRESPASSING – Board Members and Committee Members have frequently trespassed on property to harass members. On my property they trespassed, moved objects and turned on the water and left the water on, not running, but the main valve on. Had my RV had a leak or had a faucet opened, this could have caused significant damage. Board Member Kirby Smith stated in a public meeting that he was annoyed because he attempted to peep in my windows and my window coverings did not allow him to see inside. I have been blocked from obtaining the recording of that meeting.
The Board created a document that they require property owners to sign when building or significantly modifying any structure. The property owner is force to sign a document which states,
“The Owner hereby irrevocably grants consent for Surfside employees, members of the Surfside Architectural Committee and other representatives of Surfside to enter onto the Property, now and in the future, for inspection related to the Project including, without limitation, whether the Project should be approved, whether the Project as constructed, or as being constructed, complies with the approval granted and with the Covenants of Surfside and whether there is any change to the Project in the future.
The Owner herby releases Surfside, the employees of Surfside, the members of the Surfside Architectural Committee and other representatives of Surfside from any and all liability in anyway related to and/or arising out of entry onto the Property pursuant to this Ongoing Authorization to Enter on Property.”
In other words, if the property owner wants to build any structure on their property, or change or modify it in any significant way, they are blackmailed into giving up their privacy and property rights for eternity. They are also required to defend and indemnify all SHOA members trespassing on their property!
I also understand that not all people who have built structures were required to sign this document, only those selected by the Faction Board members.
I understand that at least two of us have filed police complaints against Board and Committee members trespassing on our properties. According to police officer Travis Ostergaard, Kirby Smith, (Board Member) admitted to trespassing on my property and admitted that Chris Hanson (Board Member) and others had also trespassed on my property. I understand that Chris Hanson has had other trespassing complaints filed against him in the past. According to police officer Ostergaard, he has talked to Chris Hanson in the past, and pointed out that trespassing was illegal.
SPECIAL FAVOR AND UNEQUAL ENFORCEMENT – One example; our covenants state that the exterior materials including siding and roofs of all garages and carports shall match the materials used for the primary residence. As far as I can see all the other properties that have attached or detached garages meet these covenants other than current Board member and Treasurer Jim Clancy, who recently built a large two car garage. It is my opinion that structure is not in compliance with this covenant. Despite several complaints to SHOA about this garage, no action against this violation has been taken by SHOA.
An SHOA covenant states that no houses shall be built taller than 35 feet and the height is measured from the crest of the street that the house is built on. There are multiple houses on J Place that, in my opinion, do not conform to this covenant. There are many other examples of unequal enforcement.
HARASSMENT – The HOA has threatened and harassed property owners by misrepresenting the SHOA covenants and representing to property owners that they had the authority to interpret and enforce their interpretation of the County Ordinances. The property owners were threatened with fines and in some cases were fined, and some may have had liens placed against their properties. Some property owners have sold their properties and moved, or are considering selling and moving, due to the illegal and unethical actions of the HOA. After Randy Durdel won his court case against SHOA, according to Randy, one of the Board members threatened him. He was informed that if he restored his shed, the way the court had allowed, that the Board member would continue to harass him. Randy is afraid to even tell me the name of the Board Member that threatened him.
After Jim Clancy proposed using drones to enforce covenants, and I presented public opposition to that, a drone was flown over my wife’s head while she was in on our property, my neighbors complained to the police when a drone was hovered over my property for about 5 minutes while I was not there, and another police complaint was filed when my neighbor discovered a Faction member trespassing on the fire department property surveilling my property.
SELECTIVE REFUSAL TO APPROVE CONSTRUCTION/ENFORCEMENT – In many cases SHOA enforces covenants against one person but not the property owners with the same issue in nearby properties. SHOA has refused to approve structures even though they cannot find any covenant violation, and in one case, even though the court ruled in favor of another member with the same issue.
FAILURE TO FOLLOW DUE PROCESS – The SHOA consistently fails to allow due process to members seeking to appeal Board action. I personally was falsely accused of violating a covenant. The only appeal process allowed is an appeal to the Board that originally issued the citation! There is no provision for an independent determination of the validity of the matters appealed or for due process of a member. In my appeal to the Board, it could not produce a covenant that I had violated but voted to refuse the approval of my shed and to continue to fine me anyway. During my appeal to same Board that originally issued the citation, the Board refused to see pictures I tried to present as evidence. They could not produce a covenant that I had violated, and would not provide the identity of the person who had made the complaint. The person that I understand filed the complaint was also on the Architectural Committee and is a Faction Board member. One of the other Board members was also a trustee of the Architectural Committee. One of the other board members, Thomas Rogers, pointed out that it was a conflict of interest for those Board members who were on the Architectural Committee voting on an appeal of a matter they instigated and the same for the board member that made the complaint. They voted anyway and the President and our Business Manager Laura, counted the votes of those that should have recused themselves. They decided 5 to 4 to deny approval of my shed.
I wrote requesting an appeal to the Appeal Process detailing all the ways they had violated my due process rights. The Board Faction refused to hear my appeal. I believe they did so without a vote of the Board.
Tree Topping and Trustee Laws. – My understanding is that the trustee laws specify that the trustees of an organization must fairly represent those that choose them as trustees both in financial and other matters.
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RCWs > Title 11 > Chapter 11.98 > Section 11.98.078
11.98.075 << 11.98.078 >> 11.98.080
RCW 11.98.078
Trustee duty of loyalty.
(1) A trustee must administer the trust solely in the interests of the beneficiaries.
Trustee Duties, Liabilities and Compensation, from:
http://www.schoenfeldlaw.com/trustee-duties-liabilities-and-compensation/
The trustee of a trust is under a duty to exercise a high degree of care in administering the trust. This is commonly known as fiduciary responsibility. The following are duties, which exist under Washington law that a trustee must fulfill in administering a trust. By the trust agreement, the creator of the trust can limit or expand the duties and responsibilities of the trustee. If there is a disagreement between the law of the state of Washington and the terms of the trust agreement, the trust agreement must be followed. However, in no event may a trustee rely upon the fact that the trust agreement grants the trustee discretion as relief from the duty to act in good faith and with honest judgment.
Trustee Duties
Duty of Loyalty.
While administering a trust, a trustee must refrain from placing himself or herself in a position where the trustee’s personal interests or those of third parties do or may conflict with the interests of the beneficiary. In short, a trustee must avoid self-dealing. …
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Besides all the issues mentioned above, there are tree topping covenants in Surfside that are designed to protect the views of a small minority of the population, about 350 of 2500 properties. However there are no actual guarantees of a view in Surfside. In spite of that, there are covenants that create different limits of heights of trees on different properties. There is a tree committee made up mostly of members of the 350, that regularly measure the trees and force people to top their trees under threat of fines. At this point I believe the entire committee is made up of members of the 350. These rules are beneficial to the 350 and increase the value of their properties at a significant cost and reduction of property rights and value to the approximately 1400 properties between them and the ocean. This covenant also damages the peace and property values of all the property owners of Surfside. Topping the trees damages the trees, damages and in some cases severely damages the appearance of the property and the property values of those properties as well as the surrounding properties.
SHOA professes to follow the Washington State Firewise program but because the Board Faction wants the tree topping to continue, they refuse to publish in the weekly newsletter the fact that the Firewise program warns against tree topping. The State says that tree topping is a fire hazard and reduces the value of properties.
I believe that the actions of the Faction are risking the fire safety, damaging the physical and mental safety of the members, and damaging the financial safety of the larger part of the community, especially as this community is made up of a large number of elderly and retired people as well as people with low incomes.
PHYSICAL HARM – Many of the members are elderly retirees. The harassment, misrepresentation of the covenants, threats of fines and threat of a lawsuit and the costs involved to defend their rights along with the resulting damage to their properties and lives has caused health issues for them. One member that sold his property told me that he sold it because he was concerned about the damage living here was causing to his heart. I personally have felt the physical toll of the stress caused by this and understand how the unethical, and in my opinion illegal actions of SHOA could be damaging or even fatal to members, especially the elderly, and there is a large percentage of elderly members. Randy Durdel expressed an interested in being elected to the Board. He is one of the members that recently sued SHOA for forcing him to remove a shed roof although his roof did not violate the covenants. He won the case, but felt the stress of situation here had significantly damaged his health. He was going to run for the Board to help fix the problems here, but changed his mind after his ordeal with SHOA due to health reasons.
FINANCIAL HARM – According to the Washington State Department of Resources, topping of trees causes a variety of fire hazards, and reduces the value of properties. 350 properties benefit from the tree topping covenant in Surfside, while 1400 properties are asked to pay for it, the 350 do not pay for it, and about 2200 properties suffer lost property values and continuous damage to their enjoyment of their property investment. The property values of Surfside lots are lower than other similar property values on the peninsula. The property values in Surfside continue to decrease while the property values on the rest of the peninsula have been increasing.
The misrepresentation of the covenants, threatening, harassment, unequal enforcement, lack of due process, and general corruption faced by the members of Surfside causes an excessively high turnover in properties further reducing the property values and the enjoyment of the property owner’s investment.
RV USAGE – RVers are not allowed to use their land full time. The restrictions on the RV lots decrease the value of the lots and the enjoyment of the property investment of the RVers. It also makes it very difficult for the RVers to participate in the governance of SHOA. The RVers that are forced to remove their RVs from their properties can RENT space in a storage facility in SHOA but are over-charged according to our Articles of Incorporation and they cannot live in their RVs in the storage facility. The RV facility runs at a profit. Even though this has been discussed many times, in and out of board meetings, The Board Faction refuses to allow a change to be made.
The HOA Faction seems to have an undo-influence over the County. The County Ordinances grant the right for every property owner to have one RV on their lot year round as long as they don’t live in it, except in Surfside.
The County actually created an ordinances that singles out Surfside as the only place the County that I am aware of where RVs are not allowed to leave on RV on their lot year round. The County Ordinances specify that each parcel can have one RV on their lot year round, but a separate ordinance says that the RV ordinances for Surfside are the covenants. This is not so for anyplace else in Pacific County including all the other HOAs. It would seem that this would be an illegal ordinance.
CONCLUSION – I have significant documentation and proof of the above violations and a proper investigation could reveal significantly more. There are many others who could testify to what I have explained above. I believe the evidence is abundant and overwhelming.
I am an HOA board member but writing this letter as an individual. This letter has not been approved by the board.
Patrick Johansen [email protected] 503-781-4492
Elections.
The reality is that the “Faction” has control of everything in Surfside. These are hardly fair elections.
Clearly the people who would benefit from changes to the tree covenants would far outnumber those who want to keep the tree covenants the way they are. About 300 of the 2500 properties benefit from the tree covenants. The covenants could easily be changed to allow trees to grow taller without interfering with J Place views. The Faction simply will not allow that to happen.
Why don’t the majority of people vote out the faction members? First, the Faction through the Board controls the email list, the weekly newsletter, the website and the Facebook page. As about 80% of the property owners in Surfside don’t live in Surfside, it makes communication between members difficult and expensive. The Board blocks any opposing viewpoints from being posted in any of the Surfside communications and refuses to share the email list. When I moved to Surfside, one could purchase the email list for $10. After I wrote one email to the mass of members asking them to vote for me and outlining my platform, Laura refused to give me an updated list, and the board quickly changed the rules so that email addresses were no longer included in the available list.
One of the board members is always in charge of the elections. Several of the members complained in the last few years about getting the ballots late. The mail in votes and proxies were collected by the office staff, thus the documents were in control of the Board/Faction. I suspect that is still the case. I believe the board members and Faction volunteers also help count the votes, at least that appeared to be the case. Twice while I was on the board, I found that the proxy forms given to me were mismarked taking away that person wish to assign their proxy vote to me. I complained and they fixed them, but I had to know for sure that the person gave that to me. Some other people told me their ballots never arrived and others that they gave me their proxy but I never got it.
By keeping people in the dark and making it expensive and difficult for members to communicate in mass to the other members the Faction can keep control of the elections. As property owners don’t get to vote on changes to covenants and frequently decisions that should be in front of the board are made in secret, the majority of property owners have little idea of what is happening, and don’t know who to vote for.
One of the ways to change things would be for a group of people who want to make changes to organize and start collecting email addresses of all the neighbors. It would take some work but I think most people would like to be informed and would want to hear opposing viewpoints. I feel it would be pretty easy to collect enough votes to vote in 5 new board members and vote out the old. It could be done in one annual meeting.
I am not an attorney, comments in all my communications are my opinions or beliefs.
Patrick Johansen, HOA-Review.com
[email protected]