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Ineligible Board Member

Started by ThomasC11 • 32 replies • 1922 views

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ThomasC11 (California)
Posts: 210
Posted:
Our Board recently voted to approve the lease of common area for the installation of a Verizon Cell Tower. It was a very unpopular decision with no input from the community.

One of the board members who voted yes, has questionable eligibility.

Our Bylaws say, 2 year term, run again, another 2 year term. Then board member must sit out a year.

This person served his 2 terms and then, because of a vacancy, was asked and allowed to serve again. Does the vacancy allow for him to serve during this time period when he was required to sit out?

RichardP13 (California)
Posts: 3,868
Posted:
IMO, the Board member is illegal, if that is what's in your Bylaws.

The vote could be invalidated depending on exactly how the vote went.
ThomasC11 (California)
Posts: 210
Posted:
thank you Richard, if we can enforce this, then there would not be enough votes for quorum.
RichardP13 (California)
Posts: 3,868
Posted:
Thomas

How many Board members should you have and are there still vacancies?
MarkM31 (Washington)
Posts: 351
Posted:
And expect trouble from the leasor. It's going to take time if and when you invalidate any election. Verizon will argue that their deal is a done deal, and they may seek damages if you boot them out.

I think this battle is lost.
NpS (Pennsylvania)
Posts: 4,216
Posted:
Quote:
Posted By MarkM31 on 01/23/2016 8:46 PM
And expect trouble from the leasor. It's going to take time if and when you invalidate any election. Verizon will argue that their deal is a done deal, and they may seek damages if you boot them out.

I think this battle is lost.

Agree with Mark. Verizon has the right to rely on any authorized signature without having to prove the legitimacy of the vote. Damage claim can include preparation and installation costs, lost profits, legal costs.
Sikubali jukumu. Read all posts at your own risk.
RichardP13 (California)
Posts: 3,868
Posted:
Thomas

I am sorry, I misspoke. It appears Boards shouldn't have to follow the same rules as it members.
ThomasC11 (California)
Posts: 210
Posted:
We should have 7 members, we have that # currently.
ThomasC11 (California)
Posts: 210
Posted:
Quote:
Posted By RichardP13 on 01/23/2016 10:11 PM
Thomas

I am sorry, I misspoke. It appears Boards shouldn't have to follow the same rules as it members.

Richard, not sure what you mean here. Could you clarify?

Thankful, yet not excited about the other answers. Not sounding optimistic.
LarryB13 (Arizona)
Posts: 4,099
Posted:
Thomas,

You may be addressing the wrong issue. Does your board have the authority to lease the common areas? Is a commercial structure, such as the cell phone tower, permitted under your CC&R's?

There was a case in AZ a few years ago where a cell phone company sought to build a tower on a lot that had restrictive covenants. There was no HOA but the owner of an adjoining property objected by sending the cell phone carrier a written notice citing the restrictions. The carrier completed a substantial amount of the work before the other owner sued to stop them. Among the arguments the cell phone company raised was the amount of money they had already spent. The court held that they were aware of the covenants due to the other party's notice and chose to proceed at their own peril. See: Burke v. Voicestream Wireless, ___ P.3d ___ (Ariz.App. 2004).

If you or a group of owners in your development believe that the cell tower will violate the covenants and wish to terminate the project, you will need to give Verizon notice. The longer you sit on your hands will make it more difficult to put a stop to it.

As far as your concern about the one board member's eligibility to serve, I think you are barking up the wrong tree. Did you object when he was appointed to fill the vacancy? If you sat on your hands when you should have acted I have a hard time finding fault with the vote. Even if he is not eligible, the remaining board members can simply appoint someone who will be their puppet to replace him. This is simply the wrong battle to fight if your objective is to stop the cell phone tower.

Those who feel as you do need to hire an attorney asap and face the issue squarely.

KerryL1 (California)
Posts: 14,550
Posted:
I agree with Larry: Our CC&Rs also state a vote of the owners is needed for ANY change to the common areas.

So review your CC&Rs, Thomas. It's possible it's not too late!

Are you on the Board, Thomas? What does this mean?

And "...if we can enforce this, then there would not be enough votes for quorum."
RichardP13 (California)
Posts: 3,868
Posted:
The voting on the lease, from all I have read, would be within the authority of the Board, as they are not giving exclusive use to an owner nor are they spending money on a capital improvement. I would have gone about it differently.

You say you have seven Board members. The one illegal would not matter. They could always re-vote to make it right.
ThomasC11 (California)
Posts: 210
Posted:
We are doing a recall and will have a new board with members (including myself finally) who are not in favor of the tower. I was hoping for a quick solution to stopping the tower pursuing the ineligible board member angle. There were people who questioned the appointment at the time, yet to no avail.

As for CCR's violation, we are also looking at that. To defend the board's decision, our PM has recently posted this info on the HOA website.

The Articles of Incorporation require the Assoc. to provide for the improvement and maintenance of common area. The Assoc is permitted to enter into, make and perform contracts of every kind for any lawful purpose with any person, firm, association or corporation. Article 2 Section 1 of the Bylaws grants the Assoc. power to hold title to the Recreational Common Area and act as the management body for the preservation, maintenance, architectural control and improvement of the Recreational and Residential Common Area.

In that regard, the Assoc. is authorized to contract and provide for the utility and other services benefiting the Residential Common Area and Recreational Common Area, and to contract for materials, supplies and services for improvements to the Project - defined in the CCR's to include all land with Laguna Village.

JonD1
Posts: 2,350
Posted:
Rather than engaging in a unproductive , never ending discussion and allowing things to move along. If you are serious about preventing the building of this
tower my suggestion you seek the advice of a lawyer versed in HOA affairs and if possible go to court immediately and seek an injunction from the court before they break ground on this project. If that hasn't happened already. Put the phone company on immediate notice this project is halted.

If the majority of your owners decide endless discussing and whining is the way to go then get ready for this eyesore to lower your property values while you all did nothing. Bickering about who got appointed and how and if you can then avoid a quorum is simply nonsense.

My question would be are there any local building ordinances than might prohibit this construction? Has the local government given their approval?
Just how long has this discussion and negotiation been going on before you are now seeking advice from non-professionals whose knowledge about such issues is limited at best.

You need legal representation now. Not more free advice and opinions.

ThomasC11 (California)
Posts: 210
Posted:
Never hurts to get feedback from this group. Injunction being placed this week along with meeting with attorney.

Thanks JonD1
JonD1
Posts: 2,350
Posted:
Quote:
Posted By ThomasC11 on 01/24/2016 6:43 PM
Never hurts to get feedback from this group. Injunction being placed this week along with meeting with attorney.

Thanks JonD1

Appears you might be serious. Good for you. Studies have shown a decrease in property values. And of course health concerns from radio waves.
Can the board enter into a permanent agree on behalf of the property which would leave future boards unable to reverse?

Speak wi the lawyer. Begin the process to immediately recall those on the board who voted for this. Attend the next meeting and make clear your objections and bring as many supporters as possible.

How far along is this project? What is the proposed height? Have they performed a ballon demonstration to show what this structure might look like?
In my view they are eyesores and pose possible health risks. Here we had a proposal for one to be built on public property. I expressed my views and asked others to do the same including attendance at some town meetings and thankfully the government officials declined to proceed further.

Gook luck. You are welcome. And let us know how it goes.
ThomasC11 (California)
Posts: 210
Posted:
City approved permit last week, they almost had to because only grounds for denial had to be based on aesthetics. 70 foot tower disguised as a tree, place 40 from basketball courts, tennis courts, and sand volleyball court.
PitA
Posts: 1,416
Posted:
Yet y'all actually want YOUR cell phone to work !

If y'all dumped all your cellular phones there would not be a NEED for new 'towers'.

However,

I guess the towers are OK as long as they are located in someone else's back-yard.

So,

you are saying that you want good cellular service without a 'tower' in your immediate area.

GOOD LUCK and GOOD RIDDANCE
ThomasC11 (California)
Posts: 210
Posted:
Where do you get that? I don't own a cell phone. So lighten up Frances.
RichardP13 (California)
Posts: 3,868
Posted:
Wish we had a Like button.
KerryL1 (California)
Posts: 14,550
Posted:
"In that regard, the Assoc. is authorized to contract and provide for the utility and other services benefiting the Residential Common Area and Recreational Common Area, and to contract for materials, supplies and services for improvements to the Project - defined in the CCR's to include all land with Laguna Village."

I'm happy you've engaged an attorney, Thomas. I'll be interested in knowing their interpretation of the above citation from your articles. It's just not clear to my non-legal eye that it mean the board (Assoc.) can build/construct something on your common areas without owner approval. It's clear they can enter into contracts.
JonD1
Posts: 2,350
Posted:
It would be difficult to demonstrate erecting a cell tower serves to improve or benefit the community.

I would hope the lawyer files quickly for an injunction. Once this tower is built the likihood it comes down is near zero.

If a board OKed such a build on my property they would be hanging in the trees.
Do some research as to the affect on property values. DOWN

And the federal government has ruled towers cannot be denied over health risks or concerns. That is a federal statute.
Nice to know when it comes to progress your health and the health of the kids playing on the basketball courts means little.

And as far as I know we don't need a tower over our roof to get service. PITA rarely has a positive view of anything. And his dim views prevent him from understanding why anyone might not want a metal tower designed to look like a tree, that it fact will look like a metal pole with fake tree branches hanging from it. Who could be against that? ME.

I would seek legal action. Move the recall the board who supported this. And light a flame under their behinds making it clear THEY will be held responsible in any way possible including naming them as defendants in any legal action.

To bad this wasn't caught or moved on sooner. Better move quick or this will be over before you can act.

Good luck.
NpS (Pennsylvania)
Posts: 4,216
Posted:
Costly fight on your hands. Sad so sad.
Sikubali jukumu. Read all posts at your own risk.
PitA
Posts: 1,416
Posted:
And as far as I know we don't need a tower over our roof to get service.


Correct

Y'all are getting service from your neighbor's towers.

Now 'they' want the same.

My 'principle' still stands.

Your 'not in MY backyard' attitude does NOT.

JonD1
Posts: 2,350
Posted:
Quote:
Posted By PitA on 02/04/2016 6:54 AM
And as far as I know we don't need a tower over our roof to get service.


Correct

Y'all are getting service from your neighbor's towers.

Now 'they' want the same.

My 'principle' still stands.

Your 'not in MY backyard' attitude does NOT.


Just to be clear none of my neighbors have towers on their property.

The tower proposed here was slated to be built on town property inside a town park.
Hardly, the proper site considering the possible negative health affects on the small kids.

Now the towers I am aware of one is located on a mountain top on state land perhaps two miles as the crow flies from the nearest homes. The second is located within state property inside a correctional facility
which covers several hundred acres. Both sites are more appropriate than a town park in my view.

So your principled argument has just a few holes in it...

GenoS (Florida)
Posts: 4,276
Posted:
Quote:
Posted By JonD1 on 01/25/2016 3:40 PM
And the federal government has ruled towers cannot be denied over health risks or concerns. That is a federal statute. Nice to know when it comes to progress your health and the health of the kids playing on the basketball courts means little.

Actually, it's nice to know the government doesn't buy into every crackpot theory about EM radiation. While there is plenty of evidence that the government does bend over backwards to please big corporations, that doesn't equate to a disregard of debunked alleged health risks.
JonD1
Posts: 2,350
Posted:
Quote:
Posted By GenoS on 02/04/2016 2:20 PM
Posted By JonD1 on 01/25/2016 3:40 PM
And the federal government has ruled towers cannot be denied over health risks or concerns. That is a federal statute. Nice to know when it comes to progress your health and the health of the kids playing on the basketball courts means little.


Actually, it's nice to know the government doesn't buy into every crackpot theory about EM radiation. While there is plenty of evidence that the government does bend over backwards to please big corporations, that doesn't equate to a disregard of debunked alleged health risks.

Geno seems like your thought process is attempting to have it both ways.

To seriously claim the government has a history of protecting the public versus monetary interests would require you to have had a frontal lobotomy.

On the other hand to conclude in this one area they have accurately assessed the risks and see absolutely no concerns or risks despite those concerns being far from debunked as you claim would require having blinders on.

Thankfully enough people here decided it was worth their effort to express their opinions the cell tower was not beneficial to our community in any way.
As one board member stated "we had not one call in favor of this tower."

I would not be so bold as to suggest I knew what the affects of cell towers would be based on my limited knowledge and understanding. From whatvI have read some people much more versed on this subject have not cleared cell towers as a possible health risk.

MarkM31 (Washington)
Posts: 351
Posted:
Posted By JonD1 on 02/04/2016 1:50 PM
The second is located within state property inside a correctional facility

So in your way of thinking, cell towers are too dangerous of a health risk for parks and your neighborhood, but zapping inmates and the staff of the prison is perfectly fine.

A little class entitlement at play here?
MarkM31 (Washington)
Posts: 351
Posted:
Quote:
Posted By JonD1 on 02/04/2016 1:50 PM
The second is located within state property inside a correctional facility

So in your way of thinking, cell towers are too dangerous of a health risk for parks and your neighborhood, but zapping inmates and the staff of the prison is perfectly fine.

A little class entitlement at play here?
GenoS (Florida)
Posts: 4,276
Posted:
Quote:
Posted By JonD1 on 02/04/2016 6:11 PM
From whatvI have read some people much more versed on this subject have not cleared cell towers as a possible health risk.

Right, those people are called "crackpots". There is zero evidence to back up any health risk. Everyone is entitled to their own opinion but people are not entitled to their own facts. Zero. Evidence. You can google the definitions if you like.
JonD1
Posts: 2,350
Posted:
Quote:
Posted By MarkM31 on 02/04/2016 7:33 PM
Posted By JonD1 on 02/04/2016 1:50 PM
The second is located within state property inside a correctional facility


So in your way of thinking, cell towers are too dangerous of a health risk for parks and your neighborhood, but zapping inmates and the staff of the prison is perfectly fine.

A little class entitlement at play here?

Why is it people always try to twist details they know nothing about to suit their opinions.

The location inside the park was within 50' of a Little League ball field.

The current location inside the prison property is maybe 3/4 to one mile from the prison facilities and is in fact closer to an interstate highway than any
Humans within the prison.

Sorry but your suggested class entitlement point is meaningless.
JonD1
Posts: 2,350
Posted:
Quote:
Posted By GenoS on 02/04/2016 10:27 PM
Posted By JonD1 on 02/04/2016 6:11 PM
From whatvI have read some people much more versed on this subject have not cleared cell towers as a possible health risk.

Right, those people are called "crackpots". There is zero evidence to back up any health risk. Everyone is entitled to their own opinion but people are not entitled to their own facts. Zero. Evidence. You can google the definitions if you like.

Perhaps your definition of zero is different than mine.

I did Google search the subject.

http://www.eastcountymagazine.org/cell_phone_towers_238

Seems some people are just not as convinced as you that to question the complete safety of cell phone towers requires one to become a crackpot.

Because the federal government says so means very little to me. They have a history of being wrong on such issues.

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