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Part 11: GWLUA/GWInc legal issues

Part 11: GWLUA/GWInc legal issues Gillian Fryer posted 5 months ago

This has not been pleasant to relive. 2018-19 were incredibly stressful years, knowing that something was seriously wrong, not knowing who to tell, who to trust, and then realizing I could trust NO ONE on the board, so I went to the community. I consider myself to be a professional woman. I've never been treated so abysmally in my career as how Mike treated me. I fully expect to have that indignity repeated when I likely get called as a witness in the lawsuit. All this because I wanted to contribute to the community! I wouldn't wish this on anyone, so I'm not surprised the no one wants to be on the board. At least I can honestly say that I fought for the community. Unlike at least 5 before me, and one member, Judy Sutton, who quit twice, I stuck it out through all the crap... in fact the board quit me.

I doubt you can deny that the actions of Mike and the various boards are nothing short of morally reprehensible: totally ignoring the rights of community members, degrading them and muzzling their speech, allowing some people to break rules with impunity, while others were scrutinized for things that weren't even violations. Do you realize that the board told a couple in the subculture years ago, that they they had to tear down their plastic playground? (Nothing is mentioned in the rules about any thing like that.) They've since left.

No reasonable person can think that the events between 9/15 and 9/23/19 were acceptable behavior under any circumstances, and yet that resulted in an organization that now claims authority over us.

The HOA Act is intended to protect communities against such rogue boards, but it is a toothless tiger, since it offers no enforcement. It's up to us to find a solution. Many of us have tried to ignore the board and simply participate in peaceful non-compliance. On a daily basis, our lives have gone on.

The current board has been holding regular zoom meetings, giving two days of notice and not providing any agenda. That is not normal board protocol. This week, they had a meeting on a Wednesday with only 1 day's notice. That suggests this was an emergency meeting, although the published agenda didn't reveal that. The outcome of such short notice, is that many people who might have attended and said something, did not have that opportunity. Was that on purpose, or was that simply an oversight? Either way, it was disrespectful of the community. We’re apparently still an annoyance.

So, I'm wondering why is the board concerned about revenue now. Maybe its something they've done?

When the GWLUA was abandoned, we had assets of approximately $30K. The last full year of the GWLUA brought in $17400. In 2020, under GWInc., revenue was $11815 a decrease of 32%, with more members. Since then, houses have been selling well, so membership and revenues should be increasing, but that doesn’t appear to be happening. Here are some additional expenses that they should expect: liability insurance on the property they now own (we didn't have insurance for years b/c of the lawsuit), increased board insurance (that lawsuit thing will catch up with them eventually), increased property taxes (Mike had an age discount which is now gone, and the county can now increase taxes to match current valuations.. this could as much as quadruple the taxes due), lien expenses (20+ liens at $200 a pop?) Did the Board ever perform the required final audit of the GWLUA, or the required annual audits of GWInc. No? Breach of duty of care. Add all of that together and they are $12K or more in arrears annually. Not sustainable. At this rate, they will run out of our money in less than 2 years.

There are a couple of other issues. #1.The Board has a duty to maintain an emergency fund, which they do not seem to be doing. In 2014, we had a 100 year flood which destroyed all the major access roads within the community. (That was only a few years after a previous 100 year flood, which did similar damage.) The board doesn't currently have the funds to meet their financial obligations plus a similar catastrophic event. That is a breach of their duty of care. #2 The GWLUA always managed to increase its yearly revenue. GWInc is consistently falling behind ever since their inception and they are unwilling to address the issue of why. I think the sudden interest in non-compliance is because the board cannot allow further dissent. They have to make an example of those who refuse to comply. It seems like a final grasping at power before they crash and burn.

I told you that Mike is mining soil from the well area, breaching the rules of common land for his personal financial benefit. A proper board would put a stop to this or charge Mike for the value of the soil he is taking, which, at $15K per building, would provide income for the community sufficient to pay their expenses for many years. I've just given the board a solution to their financial woes. Mike has about 20 lots left to build. At $15k each, this would generate at least $300K for the community… enough to pay for years of property tax, insurance and road maintenance (even though Mike should be paying that because the 2005 LUC says so), We could even build that community center that is referred to in our disclosure agreement… you did know about that didn’t you? Of course, while Mike is on the board, that won't happen.

Now there are apparently some anonymous complaints, stating that some community members are disturbed by other members not paying dues and violating the LUC. I’m concerned that the board revealed the private financial information of community members to non-board members. Other than the container that is covered in framing on Ethan and Hillary's land, that board members Phil and John drive past every day, just what obvious violations are there that you have a problem with? If there are any, did you go directly to the community member and talk to them about it... in a timely manner?

I want to set the story straight on that container: the lot on the NE a portion of the community, in the subculture, is owned by EB employees. They have gated access to the National Monument, so now you have trespass on private land to get to public land. The road they gated is an old public easement that was used for years to access public land. Here is he letter again, that the board sent years ago on this issue:

If they are allowed to continue this behavior for 7 years, Ethan and Hillary can claim that the common land they are using is theirs by adverse possession. THAT is a board matter because it is the board’s duty to protect the assets of the community. Ethan and Hillary have multiple buildings, in violation of the LUC. They placed a container on their land, instigating multiple complaints from the community. The board intervened and came up with a compromise if the container could be disguised as an Earthship within 18 months. That was six years ago. Now it just looks like a container mixed with a stick house. The outcome is that rules apply unless you are a friend of Mike, then the rules don’t matter. The board has selectively enforced the rules right from the start. That means that anyone who actually challenged it in court would prevail because the board has made the rules unenforceable. My point is that it’s the height of hypocrisy to complain about some perceived minor violation, when board members drive past the biggest series of violations ever, on property of EB employees. There are actually two more containers at GW, so clearly the rules don’t matter. The rules are applied punitively to harass those people that Mike or the board don’t like.

The bottom line is that we have sufficient documentation to prove the "long train of abuses and usurpations" that can invalidate this absurdity. It won’t be good publicity if 1/4 or more of the community is fined. If the board decides to place liens on any properties, they will have to prove their own legitimacy, otherwise the liens will be fraudulent. That will publicly reveal the entire genesis of GWInc. When the truth comes out, don’t plan on D&O insurance covering wanton misconduct. That will bankrupt GWInc in months.

Apparently new deeds are being issued with the caveat that they are contingent upon the outcome of the current lawsuit. That means, if the jury decides that the GWLUA expired (either in 2014 or 2019), then we have no HOA.

Either by the upcoming jury trial, or by forcing members to defend themselves, it appears this will be resolved. It might cost some of us some money and determination to stay the course, but this is an issue that will effect the entire community and its future.

This is the time to stand up for a cause that matters, and have your voice heard.

If you are interested in talking privately about any of this please contact me either at 575-770-2806 or [email protected] I am always open to listening to anyone and treating everyone's opinions with respect. If you disagree with what I’ve said, I’d really like to hear your reasoning. If you have some advice, I’m listening.

Coming up: I’ll start talking about some proactive things we can do to better our community. I think that’s about time!

This issue has been mentioned a number of times and actually involved material threats of violence which put people in fear of their lives since there were evidently firearms involved. Ted paid for the survey. This was an incredibly volatile issue in the community and it looks like the employees of Earthship Biotecture is at it again. There is a fully closed metal gate blocking this roadway which is of course intimidating to cross. But the rules only are processed against those who are not friends or employees of Mike.

The letter sent is explicit yet here we are .......again.

February 20, 2018

Joanna, Ethan and Hillary:
The GW Board of Directors was recently made aware of an issue involving use of the road that runs along the north side of Kushners’ property. After discussion and viewing the RedTail Survey map of July, 2000, it is the opinion of the board that the road in question is not Kushners’ driveway or private property; rather, it is a “dirt road” which is open to use by all community members since it is on community common land. Kushners must remove the “private road” sign as well as the log barrier at the far end of this road.

Please be advised that no community member can be barred from using this road, per common land protocols, and that community members are not required to ask permission of Kushners to use this road to access the Rio Grande del Norte National Monument (formerly BLM land). At the same time, any community members using this road must comply with all Greater World Land Users’ Code covenants (dogs accompanying members using the road must be on leash, and no community member may trespass on abutting property), and they will not be impeded or harassed in any way when using the road.

The Board of Directors feels no obligation to pursue this matter further. If you disagree with the board’s conclusion, it is your responsibility to prove us incorrect; and until/unless we are proven incorrect, we expect you to comply with the above-mentioned directives.

The Greater World Board of Directors

profile-50.pngLaNaeh commented 5 months ago

Since it doesn't appear that the current Board is interested in this issue, maybe we need to send them a copy of the original 2/2/2018 Board letter.

BTW, Phil Basehart testified to the board that he had started using this road to access BLM early on in the subdivision... in the mid 1990's.

profile-50.pngGillian Fryer commented 5 months ago

So this road was established in the mid 90's by Mike's main foreman as being public access available. The community again went up in arms over the closure of this road in 2018. Yet it is still at issue and Phil is actually a sitting board member for GW Inc at this time. Still think these rule keepers keep the rules across the board equally for all?

If the intention is to squat on this land to seek adverse possession, we are in possession of proof that this has been legally disputed on multiple occasions with these squatters still not conforming to the letter of the law and the law of this land.

Literally thirty years later and we are still seeing active favoritism to specific individuals and growing, not waning, prejudice against those that seek unilateral fairness and an agreeable, united community.

If you have not yet done something that earns you ire from those favorites, more than likely your time will come. In the meantime there is a very large group of us who have one by one been shunned and been made the butt of gossip and ridicule.

Are you okay with this? I am not.

profile-50.pngLaNaeh commented 5 months ago

Private road?

Regarding the land around the well....

This was the deed that Mike presented to the GWLUA Board to transfer the lands on about 3/18/2019:

This is the deed that actually conveyed the land:

In the old version, Mike said he wanted to retain the use of the well area for the future recreational facility and the greenhouse:

But in the new deed, he says he is going to use it to develop the facilities and area: 

These two statements have vastly different meanings.

No doubt Mike will argue that his mining of the common land qualifies as developing the area.

I am currently listening to board zoom meetings and I wish to correct a statement made by John on the 3/13/21 meeting: because owning land has costs, one cannot force the acceptance of land in transfer. We were never forced to take the lands.

Furthermore, as I explained in the article above, we were paying taxes for the common land portion of the acreage while it was still under Reynolds' name. Amy determined that amount by removing from the bill, the acreage that Mike had carved out for the remaining lots, which still had not been surveyed. I have no faith that the county can decipher who owns what land from this convoluted deed. They will have to accept Mike's math on the final pages as to how many acres were transferred. There is no way they will not increase the taxable rate to reflect current valuations.

It would appear that the board made a bad deal: they took the lands, and the responsibility, and they gave Mike the ability to strip mine the land at the well until October 31, 2025.

profile-50.pngGillian Fryer commented 5 months ago