Annual Meeting Minutes - 2010
Date: October 16, 2010
Location: Temecula Community Center / Pujol Street / Old Town Temecula
Time: 9: 00 – 11: 00 a.m.
Committee Members Present: Doug Eaton, Chairman; Jonathan Geller, Secretary; Craig Hill, Treasurer; Members at Large: James Szepkouski and Mary Williams
Property Owners Present: R&V& J. Barbanell, G. Barfknecht, P. Bulfinch, J&M. Cates, J. Chang, S. Chavez, S. Clausen, M. de Sanchez-Davis, T. DiSandro, E. Dunnick, B. Gill /P. Rieker, C&G. Glasgow, S&P. Haskell, J. Hill, B&G. Hougdahl, J. Kilker, J. Eaton, C&S. Lingafelt, B. Lingg, J&M. Lira, R& N. Martin, F. Maxson, D. Pfaff, S&W. Plyler, T. Prince, J. Rising, A&L. Ruiz, R. Bume, B. Simmons, J. Driscoll, C&P. Smith, R&C. Steffey, C. Szepkouski, G. Tellier, D. Wilbur, J&C. Ayala, A. Tellier, T. Taufer
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Call to Order:
Chairman Eaton called the meeting to order at 9: 15 a.m. The start of the meeting was delayed due to the Committee having to address the issue of a candidate having mailed unofficial voting proxies to property owners. Committee was able to consult with attorney on the matter and determine effective way to resolve conflict.
Chairman Eaton began the meeting by reading the preamble to the Road Agreement, which binds all property owners in Rancho Heights and is the charter for our community. He then recognized community volunteers. He thanked Jackie Hill for upgrading the community website and serving as webmaster for www.ranchoheights.com, Ron Barbanell for his mediation efforts on behalf of the community, and community bookkeeper Cori Szepkouski for her many hours devoted to preparing for the recently concluded trial in Superior Court. He also led the meeting in observing a moment of silence for property-owner Jacinta Stockton, who lost her life this year in a tragic accident.
Explanation of unofficial proxy mailing
Secretary Geller explained what had occurred with the mailing of proxies by candidate R. Barbanell as follows. Candidate for the Committee Ron Barbanell conducted a mailing to property owners which contained his own version of a voting proxy. The Committee also followed normal procedures by mailing the notice of the annual meeting to all property owners which contained the official voting proxy for those who could not personally attend. Said official proxy carries the letterhead of Rancho Heights Road and Management Committee and utilizes the official mailing address of the Committee as the return address.
Candidate Barbanell’s version also used replicated the letterhead of the Road Committee but instead, utilized his own return address. The Committee disapproved both of his creating an unofficial, second version of a proxy as well as his use of the Road Committee’s letterhead which use is limited to that of official Committee mailings.
As these proxies were not part of the official community mailing and therefore not legally recognized, the Committee could not see how the proxies could be counted in the election. After discussion, it was decided that the proxies would be counted in the election but the election results would need to be classified as “tentative” until proxies could be validated in writing by the Committee.
Discussion was held with all property owners in attendance and it was agreed upon that those property owners who had submitted unofficial proxies would receive a letter from the Committee giving them 30 days from the date of the meeting to return a fresh copy of an official proxy with wet ink signature. No electronic submissions would be accepted. All wet ink signature proxies, returned within 30 days would then be included in the final verified vote tabulation. All parties agreed to this process in order to assure the “will of the people” would be expressed in the election of candidates to the Road Committee and to assure that there would be no cause for any parties to contest this election in the future.
All property owners should know that only the Committee can distribute proxies and that if people lose the one sent to them with the announcement of the annual meeting, they should contact the Committee and the Committee only to get an official replacement proxy.
F. Maxson offered the suggestion that all mailings be conducted by Certified Mail in the future.
Volunteers to Count Votes of Election:
Chairman Eaton asked for volunteers to serve as vote counters in the day’s election. John Cates and Mekkia DeSanchez-Davis were selected to count the ballots.
Financial Report: Craig Hill
Treasurer Hill presented the financial report. Annual Income and Expenses were enumerated and explained. As Legal Fees this year were unusually high, community attorney Robert Caietti attended the meeting to report on this aspect of community finances. E. Dunnick moved to oppose the Financial Report. Chairman Eaton denied the motion.
Attorney Robert Caietti report on status of Litigation and Legal Fees:
First, let me say I am not charging for my time attending this meeting today. I simply want to explain to the Community the status of various lawsuits, the fees associated with each, and the ultimate benefit to the Community of protecting itself by means of these legal actions.
Legal fees are high but current trials addresses 3 issues: property-owner delinquency and the 2000 Amendment which was validated by the Superior Court. Had it not been validated, the community would have been thrown into chaos. This should end this issue as it was also challenged in 2006 which was settled by the M.O.U. Agreement.
2008 – Superior Court Collection Lawsuit filed by Rancho Heights for unpaid assessments
Total = $15,075.06
Status: Total Collected: = $ 9,412.76
Total Default judgments obtained = $ 5,967.88
The Committee and Thomas Taufer went to trial this month on three primary issues: (1) whether his four parcels are subject to Road Maintenance Agreement (RMA) and, therefore, assessable annually; (2) whether the May 2001 Amendment to the RMA and the election on the Amendment was valid; and (3) whether a late fee can be charged.
It was a two day trial spread out over three days before the Honorable Thomas Nugent, without a jury. Judge Nugent's proposed Statement of Decision was received October 14, 2010, in which, while he felt RH was not authorized to impose late fees, he specifically rejected Mr. Taufer's claims, which have been made since 1998, that his parcels were not subject to the Rancho Heights Road Maintenance Agreement. Judge Nugent found Mr. Taufer's parcels are governed by the RMA and, accordingly, are assessable. Judge Nugent also rejected Mr. Taufer's claim that the May 2001 Amendment to the RMA was the byproduct of an invalid election and that the May 2001 Amendment was valid.
Attorney's fees / Total = $26,646.50
Fees: Taufer =$20,310.00
... these fees were incurred solely due to the issues raised by Mr. Taufer regarding the 2001 Amendment and Election, and whether his parcels were assessable.
Fees: Other = $ 6, 336.50
2009 – Superior Court Collection Lawsuit filed by Rancho Heights for unpaid assessments
Total = $16,783.45
Status: Total Collected = $ 5,661.87
Attorney's Fees
Total Fees to date: $ 5,578.00
Fees – opposing demurrer $ 1,050.00
Other fees - $ 4,528.00
2009 – Superior Court Lawsuit – Interference with Contractual Relationship filed by Rancho Heights
Defendants: Paul Rieker and Barbara Gill
Case Information:
Case filed as a result of evidence received from CNA insurance company, which issued the Directors and Officer's insurance to the Committee, that Mr. Rieker and Ms. Gill communicated information to CNA that led CNA to decide to non-renew the D&O policy. RH was able to replace the non-renewed can policy with one from Zurich but at a much higher premium.
Rieker and Gill, along with Bulfinch, have filed a cross-complaint against RH in this case alleging RH has failed to maintain the roads as a whole and specifically failed to repair and maintain roads traveled upon by Rieker, Gill and Bulfinch. In addition, Rieker, Gill and Bulfinch allege the Committee members breached their fiduciary duty by spending assessment funds on an entry gate, web site, frivolous legal actions, mailboxes and unnecessary employment of family members as well as failing to comply with their own personal Private Road Agreements imposed on them by the County of San Diego.
The cross-complaint is covered by the CNA insurance policy which has hired attorney Ernest Slome to defend. Mr. Slome represented RH in the 2006 lawsuit filed by Mr. Prince, Ms. Gill and the Dunnicks which, in part, sought to invalidate the election that led to the May 2001 Amendment. A settlement conference before the Honorable Richard Cline is set for December 20, 2010 and the trial is set for June 2011.
Question and Answers between property-owners, Robert Caietti and Committee:
Q: “Will Committee's legal fees be paid by Taufer”.
AA settlement proposal was made to Taufer: pay your assessments and community would recognize landscape efforts and reimburse $1200/year. Proposal rejected by Taufer through his lawyer.
Q: Candidate Dunnick: “Do you have authorization to divert funds from the road to legal funds?
You don’t feel you have to go back to community for permission?
A.Yes, if the Committee had to seek the Community's approval for all actions, nothing would ever be accomplished in a timely fashion. The road agreement states that the Committee can bring legal actions and does not state that approval by the Community is required.
Chairman Eaton suggested that property owners read Roberts Rules of order on the subject of small boards and committees. Also the California Corporations Code on the subject of unincorporated associations.
Unauthorized Videotaping of meeting
Committee Member J. Szepkouski stopped the meeting when he recognized that V. Barbanell had started videotaping the meeting without permission. Discussion was held amongst Committee, Attorney Caietti and property owners regarding their wishes, the propriety and permission of videotaping our meeting. Some expressed that taping a public meeting is legal without pre-authorization or permission. Chairman Eaton stated that ours is not a public meeting but rather is an open private meeting of private property owners. As such, no video or audio taping is permissible without prior authorization. Further, this issue was addressed at the 2007 Annual Meeting which was stopped due to a non-property owner attempting to videotape the meeting. That photographer agreed to cease only after the police were called. R. Barbanell instructed the taping to stop. F. Maxson expressed that he feels the meetings should be recorded. Discussion was held regarding the possible merit of audio taping the meeting in the future.
Q: “If people haven’t paid their assessments, are they still allowed to vote? I don’t think they should be able to. If you don’t pay your assessments, you shouldn’t be able to vote.
A: Robert Caietti: That’s a very interesting proposition which I myself would agree with, however the Road Agreement does not say that, so until you amend the Agreement to say that, yes, delinquent property owners are allowed to vote.
Q: Candidate Barbanell: “The Committee wrote in 2005 that a 100% vote was needed to amend the Agreement, what is your comment?
A: Caietti: Judge Nugent ruled in the Taufer trial that 100% is not needed.
Follow-Up: R. Barbannel: The judge did not write that in his ruling, thus it is inconclusive.
Chairman Eaton: The judge affirmed that an amendment to the Road Agreement that received
slightly more than 65% of the apportioned vote was valid.
Q: “Will legal fees be collected from Taufer?
A: Caietti: They should be. We will be returning to Court for a hearing regarding seeking legal fees as written in the Road Agreement.
Road and Gate: J. Szepkouski
Fortunately, the roads have held up well given the weather over the last several years and the increase in traffic (especially commercial vehicles [i.e. trash trucks]). As funds become available, we will continue to perform repairs to areas that have failed or are beginning to fail. Normally, we repair the damaged area by removing the existing asphalt (or if it is a large area, we grind up the existing asphalt and mix it in with the soil below to help stabilize it) and then pave with 3” of asphalt. I am researching new products that may allow us to “overlay” (pave with new asphalt right over the old) some areas of the existing roads which may prove to be more economical than removing the old asphalt first.
If you see a problem, let us know so we can put the item on a list for next time we plan to perform paving time.
Gate: Reminded everyone of “Do and Don’ts” - don’t give out codes, use of temporary codes and dialer, If you are having a special event/party let us know and we will try to accommodate your request. Let your realtor know about gate information on the website.
Remind everyone that we are preparing for a security update. Basically we are going to issue new codes (dialer codes and remote codes) since many have been compromised. Look for this update in your mail.
Elections:
Incumbent Chairman Doug Eaton and Treasurer Craig Hill were running for re-election. Running for election were property-owners Ron Barbanell and Everett Dunnick.
Nominations:
Ron Barbanell Nominated by J. Rising Seconded by E. Dunnick
Craig HillNominated by J. Cates Seconded by: J. Eaton
Everett Dunnick Nominated by J. Ayala Seconded by: P. Bulfinch
Doug Eaton Nominated by J. Kilker Seconded by: J. Hill / B. Hougdahl
J. Szepkouski moved to close the nominations, seconded by M. Williams. Each Candidate was then given 5 minutes to address the meeting. Their comments are summarized below:
Candidate Everett Dunnick spoke regarding:
Issue came up while campaigning: people reported they'd been harassed by committee members for proxies. Way to avoid is change voting process to blind voting or balloting avoids this problem. This may be why only about 60% refuse to participate in voting process.
Candidate Craig Hill spoke regarding:
Having lived in community 6 years, road maintenance, weed abatement, being fair and open-minded.
Candidate Doug Eaton spoke regarding:
Having projects he’d like to do...putting a proposal before property owners to vote on a special assessment to pave Sunset Peak at an approximate cost of $72,000 and the end of Rancho Heights Road at an approximate cost of $56,000. These two projects representing a special assessment of approximately $900 per parcel. Also suggested quarterly debates in writing with Candidate Ron Barbanell on important topics.
Candidate Ron Barbanell spoke regarding:
Over the past 6 months, having become friend of Doug Eaton...that friends can agree or disagree and wanting to thank the Committee, Doug said that he'd work with me and I’d work with Doug. The importance of the Committee being neutral because community has become very polarized and that we all lose in a civil war. There is Insufficient opportunity for dialogue in community. My website can be a tool for this. My candidacy is about transparency. Fundamental legal issues have not yet been addressed. The Judge in the Taufer trial was silent to the 100% rule regarding voting for amendments to the Road Agreement. I propose meetings like this for the community to decide how it wants to be governed. People who’ve done legal research need to be heard. Community has to participate. Road maintenance is not getting done. Both sides need to get together and work out problems. It’s hard to say you made a mistake. Encumbrances make it hard for Committee members to vote objectively.
Let’s have one meeting with a couple of attorneys and settle the private encumbrance issues. Let’s stop wasting money on lawsuits. My candidacy is about working with all these folks, leading to a better and more prosperous community.
After the conclusion of these candidate comments, votes were cast.
Proposed Assessments....Jackie Hill
Jackie explained that the Committee had worked for more than a year before offering the amendment. During that time three major issues were identified: 1) the road Agreement has two separate and confusing formulas for allotting votes and benefit units; 2) because of county restrictions formerly splittable parcels cannot be split and have value only as a single parcel; and 3) Rancho Heights needs to be well positioned and attractive to buyers when the real estate market turns around.
The Committee’s objectives in crafting the amendments were: 1) to modernize the Agreement, bringing voting & assessment formulas into alignment; 2) create a fair system that ties votes to assessment units; 3) recognize that all parcels are equal with respect to development potential; 4) allow owners to anticipate future assessments; 5) address the long-term financial needs of the community; and 6) provide, in time, revenue to take on deferred maintenance & assure ongoing road maintenance.
The two amendments offered by the Committee do two things: 1) allocate cotes and assessments on a per-parcel basis, bringing the two formulas into agreement; and 2) establish a new per-parcel assessment of $300 in the first year it is effective, and a small annual increase in assessments over the next 9 years.
If the amendments are approved, an undeveloped parcel will have one assessment unit and one vote; a developed parcel will have two assessments units and two votes.
Mrs.Hill also expressed great disappointment that after a substantial investment of time, thought and energy on the part of Committee members that many owners simply failed to even vote on the proposals presented to them.
There were no questions from the owners present directly related to the proposed amendments.
Open Discussion
Chairman Eaton on the issue of a 100% vote being needed to amend the Road Agreement.:
Up until approximately five years ago, this was the belief of the Committee while it always seemed impossible from a legal perspective. Corporations Code says we need only a simple majority, other than for assessments which are specified to require 65% to change. Davis-Stirling, if it applied to Rancho Heights, also says it only takes a majority vote to change C. C & Rs.
Candidate Everett Dunnick:
Q. “Do Eaton and Hill have a conflict of interest with a PRMA (a County-issued Private Road Maintenance Agreement) on their properties?
Chairman Eaton:
A: “Magee Heights Way is a private road agreement. Your argument regarding these PRMAs is preposterous. Civil Code 845 states all must be equitably assessed. These Agreements issued when any property is split, are subordinate to the Rancho Heights Road Agreement. It is not incumbent upon the Road Committee or the community to prove this. If you believe it is a problem, it is up to you to prove it.
(See attachment at end of Minutes for information on this assertion).
Candidate Dunnick:
Follow-up: “Those PRMAs were issued after our original Road Agreement. I spent over $500 extracting information and identified 22 parcels in the encumbered group.
Mary Williams:
Discussion: “My title says nothing about encumbrances. I have clear title and it states I am part of the 1973 agreement. Also have an L Grading Permit and at no time was I told I was responsible for the road to gate. If you were correct, how did I ever get those approvals?”
Chairman Eaton read Past-Chairman Kirk Ebmeier's 2007 statement on the controversial subject of expanding access of Magee Road to the east of our community.
“The Upper Magee property owners to the east of Rancho Heights need to prove they have established amicable right of passage across the properties between their lands and the border of Rancho Heights. Until they can prove up that aspect, any issue with RHRMC is moot. If they can’t get to our border legally, what’s the point of going further? It seems to me, if we agree to allow them access through our front gate and they’re illegally crossing the rest of the way from our eastern border across “unfriendly Territory”, we may be at legal risk for having empowered them”.
R Barbanell expressed concern that the community was not safe in a fire if it did not have over Magee Road to the south and denied that he had any hidden agenda. Jackie Hill confirmed with Barbanell that he owned property on the south side of the two locked gates on Magee Rd. She asked if he had not been pursuing opening the road prior to his purchase of property in Rancho Heights. She pointed out that Barbanell had failed in several previous efforts to get Magee open and now wanted to bring the Rancho Heights community into the issue on his behalf.
F. Maxson suggested that paper mail be utilized for all announcements in addition to e-mail and website.
Open Forum
Candidate Barbanell proposed to not adjourn meeting at the scheduled hour but to stay for further discussion on key issues. Suggestion was denied by Chairman Eaton who cited time constraints and stated the meeting would already be running to noon, one hour longer than scheduled.
Jeff Rising: expressed frustration stating that as a relatively newer property-owner, he just wants to come home and enjoy his solitude and that everyone needs to focus on the big picture...that he is not interested in attorney’s words and can’t afford to be paying for attorneys in the community. We appreciate the committee, but don’t underestimate the frustration. We need to find a way to move to open discussion and allow everybody to move beyond. We have to give people table time…..should have quarterly open meetings with the community,
Frank Maxon: suggested security cameras on gate and the creation of subcommittees to address issues and needs in the community.
Charlie Glasgow: expressed his frustration stating that as a former committee member he believes the 800 pound guerrilla in the community is the yellow signs. He turned directly to those who post the signs and asked, “If you could find in your heart to take them down, we know you’re upset, but new people are walking away, we don’t need to air our laundry, but its old already, it's time, your message has been sent, just take them down, please. (The room erupted in a round of applause).
Paul Rieker: stated; “I’d like to take my yellow sign down but someone already cut it down.”
Ron Barbanell: stated; “We all ought to sit down after this meeting and keep talking”
Charlie Glasgow: stated; “We elect these people to manage us. We need to support them, trust them and let them do their jobs. Subcommittees can stagnate and can cause gridlock if we don’t allow committee to act on our behalf”
Rancho Heights Subcommittee Volunteers:
Candyce Ayala
Frank Maxson
Cherrie Steffey
Chuck Smith
Ron Steffey
Terry DiSandro
Gene Tellier
Ron Barbanell
Vida Barbanell
Everett Dunnick
Dave Pfaff
Election Results:
Announced by volunteers J. Cates and Mekkia deSanchez-Davis:
Eaton: 110 votes
Hill: 106 votes
Barbanell: 85 votes
Dunnick: 78 votes
Closing comments by Chairman Eaton:
I want to thank everyone for coming and engaging in civil debate. We can disagree without being disagreeable.
Ron, I would like to congratulate you on creating an exciting, competitive election. You did a lot for the community, you opened up debate, you got people involved, great level of participation indicated by the vote count.
Adjournment:
Motion to adjourn made by Chairman Eaton, Seconded by J. Szepkouski, unanimously approved. Chairman Eaton adjourned the meeting at 12 noon.
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References / Attachments:
#1. ReferenceTopic: County-issued Private Road Maintenance Agreements
The argument that County-issued Private Road Maintenance Agreements and Conditions of Improvements, issued when private parties are approved for lot splits, nullify or take precedence over our existing Road Agreement (our 1973 Declaration of Restrictions and Road Maintenance Agreement) is without merit.
To claim that 22 property owners will in the future have to pay for all of the road maintenance based on a miss-interpretation of the County’s boilerplate language is said documents is not only preposterous, it is an impossibility since it would be against the law and no judge could ever impose it because he would be violating the law.
California Civil Code, Sec. 845:
…The owner of any easement in the nature of a private right-of-way, or of any land to which any such easement is attached, shall maintain it in repair.
(b) If the easement is owned by more than one person, or is attached to parcels of land under different ownership, the cost of maintaining it in repair shall be shared by each owner of the easement or the owners of the parcels of land, as the case my be, pursuant to the terms of any agreement entered into by the parties for that purpose. If any owner who is a party to the agreement refuses to perform or fails after demand in writing to pay the owner’s proportion of the cost, an action for specific performance or contribution may be brought against that owner in a court of competent jurisdiction by the other owners, either jointly or severally.
Our Road Agreement takes precedence over any sub-agreements that were signed after it.
Date Minutes Meeting Held:
Saturday, October 16, 2010