Recall - Good or Bad

If you receive your injunction to stop construction, the cell tower will likely be the key point regarding the election.

You will likely get a better sense of what the community things at that time and also have more time to educate the membership on the issue.

If you did recall the Board, those 4 seats would still be up for election in June (as those elected in a recall would simply serve the remainder of the term). It may be less expensive and you may gain more support by waiting.

thanks Tim

I have some of the same concerns with the timing. Just feel it is going to be difficult to get grab all 4 spots under current voting system.

1 Candidate can get 25 condos to give their 4 votes to him/her = 100 votes

Our group would need 100 units to vote for us = 100 votes

If the 1 candidate gets on, we would only have 3 spots. keep in mind that 3 current board members not required to run again are in favor of the cell tower. Believe it or not, 2 of them knew nothing about the concerns over health risks.

yes they can work against us. If I understand correctly, mainly if we are trying to recall specific directors.

6 Years

Thomas,

Your recall sounds like typical HOA mentality: fight one thing by attacking something else. In this case, fight the cell phone tower by attacking the board that signed the contract.

I hope that at least one of you has served a written notice on Verizon detailing why their tower will violate the covenants. If your plan is to take control of the board and then cancel the contract you may be in for a nasty fight. I doubt that Verizon takes any interest in who is on the board as they believe they have a lawfully executed contract and will proceed with construction. By the time of your elections, an operational cell phone tower could be a reality. If no one voices opposition at a meaningful time the courts are likely to rule in favor of Verizon, who will argue that they acted in the good faith belief that your condo board had the authority to enter into the contract.

Previously, I mentioned a similar case in another thread, that of Burke v. Voicestream Wireless. In that case the Burkes sued to prevent construction of a cell tower on a lot near their home in a restricted subdivision. Among other defenses, the cell phone company argued that it had already spent a substantial amount of money on the tower before the Burkes filed their lawsuit. Because the Burkes had served notice of covenant violations on the defendants months before construction began and because none of the defendants sought a declaratory judgment to clear up the issue, the court held that the cell phone company had proceeded at its own peril by commencing construction. Had the Burkes not voiced their opposition before construction began the court may have come to a different conclusion. See: http://caselaw.findlaw.com/az-court-of-appeals/1047937.html

Thomas any fool who would support the plan to allow the building of a cell phone tower without even bothering to Google possible issues in my view is to dumb to hold the position.

As to recall or election well if you wait for the election you have one chance. If you try a recall and fail you still get another shot.

Now most folks don't like the messy part of confrontation. They prefer to hide and HOPE the problem resolves itself. Which in most cases never happens.

You either have sufficient support to attempt a recall or not. Not much mystery to the outcome.

Not quite sure why anyone faced with the good possibility they will be staring at an 80' cell tower for the rest of their lives would not move to recall those who made this unilateral decision while never even educating themselves to any possible negative health impact on the residents.

Guess maybe this is a fight not worth fighting. Lots of that going around nowadays. Most people have lost the ability to stand up for anything at anytime.
They spend their lives on their knees wondering how this happened to them.

What is the compensation package being offered by Verizon for the cell tower?
How much per month was it worth for your board to sell out?

Sounds like maybe the residents just haven't had enough yet. Maybe they never will.
After all if you don't look closely you might think it's a tree...... Right.....

Geno, research some studies from other countries while you're at it.

Larry, we are voicing opposition with a letter to the Board, circulating fliers, and staging pickets with signs shaming verizon. We also got some TV and newspaper coverage.

Contract is being examined by attorney now.

I'll certainly take a look at the case you referenced.

thanks for the comments

Being as polite as possible most folks today are gutless.

There should be something in your life worth fighting for.
If not your home, just what might that be.

Hear no evil, see no evil, speak no evil.... Like chimps who know or do nothing.

My question does an elected board have the right to allow the permanent altering of common property by entering into a long term lease which in affect can never be reversed by future boards? Without a vote of the owners.

I would have an HOA versed lawyer looking into the authority your board his for such a vote NOT reviewing the contract entered into with the Verizon contractor.

And the $28,000 constitutes what percentage of your budget? And the rationale provided by the board as to why they agreed to allow this?

Better light a fire under the lawyer's behind or this will be over before you know it. How about showing up at the next meeting with all your supporters and raising hell? Or is everyone bust with something else that night?

Your collective property values will drop more than the $28,000 collected each year.

Thomas,

I think you will need to ask what is your ultimate goal in all of this?

If the goal is to stop the tower from being built, you have started that process and, as you have pointed out, members are taking sides.

If the goal is to overthrow the Board via recall or replacement, then why do you want to do that?
Is it to make things better within the Association (better transparency, beef up Reserves, collect past due assessments, violation enforcement or changing rules/regs) or to have another avenue of stopping the tower?

If your ultimate goal is to stop the tower, you may not want to take on all the day to day tasks of the Association which being on the Board will require. You may simply want to stick with the courts, education of the membership and for the procedures within the governing documents to be followed.

BTW: Once the tower is built, it won't matter how long the lease is for as the tower will likely stay there forever (needs of the community). In fact, if the Board tried to have it removed, I would expect the cell company to convince the City/County/State to take the land by eminent domain in order for the tower to stay.

One thing to keep in mind is that Verizon has likely spent money on the tower already (even if construction hasn't started).

The company dealt with the Board in good faith and expected that the Board had the authority to execute the contract.

If you are successful in court and the contract is voided due to failure to obtain membership approval, Verizon may seek to recoup the money they had spent on the project by bringing legal action against the Association. Again, they dealt in good faith and expected the Association to have done the same. Since the Association failed to do that, Verizon would likely be awarded damages by a court.

This whole process may be an expensive lesson for the Board and Association as a whole.

If in fact that is what your documents state that would be my basis for nullifying this agreement. That the board did not have the legal authority to enter into a long term lease agreement without owner approval.

My thoughts on recalling the board would be in the event it were successful then the HOA could take the lead against the tower including legal fees. If the current board is allowed to remain than most likely the board will not act to undo their own action.

I would not want people ignorant enough to make such decisions without them having done their due diligence in researching the potential problems, their lack of authority to do so, and the views of the property owners.

Their decision would serve as an indication to me their ability to manage the property and represent the best interests of the community should be brought into question.

But why not continue to allow these same folks to lead?

I am not aware of a legal requirement that a party entering into a contract with an association has a duty to investigate the board's authority. In this case, the board apparently decided that they did not have to seek the approval of the members. The other party, the cell phone company, did nothing wrong. The association did everything wrong. The cell phone company has a much stronger case for a breach of contract claim should the association assert their claim that the board lacked the authority. The individual board members could be held liable for any damages as could the association. As Tim said above, this could be a costly fight for the association.

The further this cell phone tower moves towards completion the greater the damages will be, which is why acting early is preferable to not acting at all.



While I agree with you in principal, the challengers do not seem to be any better prepared to deal with the cell phone than the incumbents. It is quite possible that the incumbents are the best and the brightest in their gene pool.

I say that because the challengers seem to be clueless as to how to proceed. They seem to equate picket signs and fliers with making a meaningful and legally cognizable objection to this construction project.

I agree and think I have expressed that action was required yesterday if not last week.

If the cell tower company has not been put on notice there is a problem their plans are moving forward.

And the cell tower company believed they were dealing with those who had the authority. This is not a legal dispute over the contract but rather whether this board have the authority to act on behalf of the 900+ property owners. This answer to which appears to be no.

And I too agree the response from the owners has been unimpressive and thus far ineffective. My suggestion light a fire under the lawyer's behind drive them to the courthouse and file for an injunction to halt this process before it gets to the point of no return.

Seems out of 900+ you have lots of followers and very few leaders. Which is common.

As to challenging the decision to allow the tower and remove the board I could do both at the same time. And I would have a serious
"Come to Jesus" talk with the current board that their decisions and actions will cost them dearly. Both as board members, neighbors, and possible defendants. Might have helped to let them know long ago this was a bad idea.

Here the town board received calls and e-mails from voters and residents that resulted in the consideration process being terminated and the project rejected. As one board member stated " we received not ONE call or contact supporting the building of this tower."

Not looking good this campaign will succeed. To many talkers and not enough doers.

You, a contractor approach the President of the Association to expand the clubhouse (insert whatever)

The President tells you they will present the issue to the Board.

You attend the Board meeting and explain your proposal and the Board votes to expand the clubhouse.

You and the President sign a contract for the work.

Oops, the CC&Rs specify that such a contract required membership approval (shame on the Board for failure to read the governing documents)

You had already started renovations as you had a contract signed by the President of the Association.

I truly believe that any court would uphold your claim to damages due to breach of contract by the Association.

Question: Is the cell tower seller subject to any laws as a utility that would require them to do additional diligence? Don't know the answer.

Do agree with you Tim that very likely that contractor could recover costs.

Our church allowed a cell tower to be built on land they own.

It was a long time (several years) before permits were issued and the tower was built. This was mainly due to residents in the area raising objections to the project with the County Board.

Thanks for all of the great suggestions particularly getting a letter sent to Verizon. Here is where we are today.

Served BOD and Verizon with letter stating violation of CCR's.
BOD needed a 2/3 vote on a contract over 1 year, this one is 5 years.

Asked BOD to resign at last week's meeting. Also asked them to cancel the contract. They did neither but agreed to move cell tower to a different location on the property away from swimming pool and playground.

WRONG ANSWERS!

We initiated recall and are now waiting for a response.
We were told the BOD has 30 days to do so.

Correct, 20 days. Management is already trying to mislead homeowners. Thanks

We have Bylaw Amendments going before a judge on March 25. HOA obtained 300 Y and 38 N in an attempt to reach 51%, unsuccessfully.

Change will eliminate proxies and cumulative voting but also reduce quorum to 30%.

Losing proxies will hurt our efforts to collect votes, reducing quorum is a positive I believe.

Any thoughts?

NO EDIT

Reducing Quorum/whatever to be able to change Covenants/Bylaws is another issue. I for one would never like to see Covenant nor Bylaw changes unless at least 2/3rds OF ALL OWNERS approve.

IF you live in a complex of 1000 homes and to amend the CCRs requires the approval of 2/3 of the homeowners, what does quorum have to do with the price of tea in China. It is irrelevant. You need at least 667 ballots, and that is assuming everyone votes yes. Most governing documents start with a majority or 51% quorum, yet you need 67% affirmative votes. Makes a lot of sense to me.

Bylaws should be easier to change, say 51%. In California, there are ways to change things without a vote, but by a Rule change. Again, forget about quorum.

The court will not lower the quorum, but lower the approval percentage, IF the association has at least 51% of the owners voting in favor.

I am in favor of eliminating quorum for elections, as the law firm at Adams-Stirling advocates. Open all the ballots. If you want on the Board, pound the streets and campaign!

1st Recall Meeting was held last Monday night where the process was explained to homeowners. Things are now officially underway.

We need 51% of homeowners to vote yes on the recall, then cast their ballot.

We are in the middle of a Bylaw amendment struggle as well with the court date to hear the HOA's Petition on March 25. The main thing that we (the recall group) oppose is the extension of term limits, allowing the current board to run for a 3rd term in July.

The Bylaws cover letter sent to homeowners and a subsequent newsletter stated "not voting is the same as a no vote". Many homeowners did not cast a vote because of this language. Final votes collected were 296 yes, 26 no, out of 914 members. Most of the yes votes were in the form of proxies that were lured in by the Board and Mgmt. Co, via raffles and giveaways.

We are attending the hearing and using the misleading language as our reasoning to defeat or stop the petition to amend.