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Broadlands residents: Board doesn't speak for us
An attempt in court to prevent the Broadlands Homeowners Association board members from lobbying publicly for the approval of the Broadlands Regional Medical Center came up short Nov. 19 when only one side showed up.
Vijay Mago, representing the Broadlands Association Inc. told Circuit Court Judge Thomas D. Horne by letter that he only learned of the court date two days earlier and could not be there.
Horne got Mago on the phone, and set the hearing for Nov. 20 at 1 p.m.
Broadlands resident Bruce Biggs and his wife are asking the court for a temporary injunction prohibiting the Broadlands Homeowners Association board members from presenting votes taken in support of the hospital project as "actions of the Broadlands Association or its Board," as stated in the injunction.
Biggs is also asking the court to prohibit the association from letting Staci Kapinos serve on the board.
Bruce and Christine Biggs filed a lawsuit Oct 7 challenging a vote taken by their HOA Board of Directors.
The Board of Directors, at its Sept. 9 meeting, voted to support construction of the Broadlands Regional Medical Center on Broadlands Boulevard. At that meeting, four resident members of the board and four developer-appointed members were present. The four developer-appointed members did not take part in the vote.
Cliff Keirce, president of the board and a vocal supporter of the hospital project, has since publicly cited the unanimous vote of the board in favor of the project.
His math is faulty, said Lawrence McClafferty, attorney for Bruce and Christine Biggs: eight members present, four votes in favor – not a majority and the resolution fails.
The real numbers are even farther from a majority, McClafferty said. Board member Staci Kapinos has sold her Broadlands property prior to that meeting and should have been allowed to continue on the board.
That, McClafferty said, leaves a vote of three, far from the five needed for a majority, in favor of the resolution.
Yet, McClafferty continued, Cliff Keirce, president of the board, continues to speak in public -- most recently Nov. 17 before the Board of Supervisors -- citing his board's unanimous approval of the hospital project.
The Broadlands board voted again to support the project at its Oct. 14 meeting, Keirce said. The letter of support includes an acknowledgment that "this endorsement does not speak for each resident of Broadlands nor is it intended to imply that a majority of residents support this decision."
Keirce is convinced, he said, that the by-right development of the 58-acre parcel on Broadlands Boulevard – which will include construction of up to 1.2 million square feet of office space preceded by clear cutting of all the trees – will have a far more detrimental effect on his community than will the hospital.
Kapinos sold her Broadlands property June 24. That same day, she said, another home owner designated Kapinos her agent. That allowed Kapinos to stay on the board, she said.
The association's governing documents, McClafferty said, stipulate that the moment a board member sells his or her property, "you are deemed not on the board."
Kapinos has since become a Broadlands homeowner. She bought a property in north Broadlands Oct. 24.
Judge Horne's decision on the request to bar Keirce, as a member of the board, from speaking in favor of the hospital project, should come just hours before the joint Board of Supervisors/Planning Commission public hearing scheduled for 6 p.m. Nov. 20 at Stone Bridge High School.
There is a much larger issue here, beyond the technicalities of the HOA management procedures and votes.
Does an HOA have the authority under the law or its governing documents to assert that it is the legal representative of the members to speak before public bodies? I don't think so, especially without a plebiscite from the HOA members.
If so, is the HOA a lobbyist and must so register with the state, and subject itself to all legal requirements of lobbyists?
No, no, no! As the courts have reminded homeowners, as well as CAI, HOAs are contractual "businesses" subject to the business judgment rule, and are not public entities. The election of an HOA director carries with it no powers to speak before public bodies on behalf of homeowners.
And while we are at it, it goes the same for the HOA attorneys and management firms who allege to the media, and at state legistive hearings, that they repesent the people.
For more info, see pvtgov.org
Posted by hoagov
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