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.
mmcclain@co.pacific.wa.us; fwolfe@co.pacific.wa.us; lolsen@co.pacific.wa.us; layers@co.pacific.wa.us

Dear Mark McClain, Franke Wolfe, Lisa Ayers, and Lisa Olsen, 

I am Patrick Johansen, and I am one of the current Board members of Surfside Homeowners Association (SHOA).    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, BOLI, 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. 

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.

I am requesting an investigation of the operating procedures, auditing and accounting procedures and enforcement actions of the Board of the SHOA and instructions to the Board regarding their proceeding without due process, selective enforcement of the SHOA covenants and selective enforcement of other laws and covenants.   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 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. 

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.

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.  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 intend to defraud and that it 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 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 enforce certain state or local law and is manipulating the operation of SHOA for the financial benefit of a few Board members.  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 last year’s 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.

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.

I understand some Board members and 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 an out of state attorney, Thomas Brazier, indicted 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. He was rebuffed as incompetent by the Board Faction because he was out of state but they did seek advice of counsel to see if he was correct. They refuse to share that response advice from local counsel with the SHOA members.  They at times would not share letters they wrote, or other letter that SHOA counsel wrote.  They just tell us what they feel the local counsel 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.

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, the board voted 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.

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.

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 refused to produce witnesses that I could examine or to allow me to subpoena witness to testify in my favor.  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.   They voted anyway and the President and our Business Manager Laura, counted their votes.  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.

BOLI – My understanding is that the BOLI laws specify that the trustees of an organization must fairly represent those that choose them as trustees both in financial and other matters.   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 never mention the fact that the Firewise program warns against tree topping.

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.

CONCLUSION – I have significant documentation and proof of the above violations and a proper investigation could reveal significantly more.  I believe the evidence is abundant and overwhelming.  

If I understand correctly, government authorities have the power to override, change or eliminated covenants and policy and take other actions to rectify situations that violate the laws, especially in health and safety issues and especially in situations that affect the elderly and retired. 

I am requesting an investigation of the operating procedures, auditing and accounting procedures and enforcement actions of the Board of the SHOA and instructions to the Board regarding their proceeding without due process, selective enforcement of the SHOA covenants and selective enforcement of other laws and covenants.

I am also requesting County or State oversite of the election.

I would appreciate the quickest response possible a time is of essence in the election.

Please help, I am not sure what to do about this and it appear that many people are being hurt here by this situation.

I am an HOA board member but writing this letter as an individual.  This letter has not been approved by the board.

Patrick Johansen   Patrick@PK80.com  503-781-4492



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