TRnews
editors:
Roger
Irwin
Tim Amsden
Contact
the editors at:
Advisory
Board
Ghengis & Sylvia Kahn
Alfred
E. Neuman
REBUTTAL TO E-MAIL " REASONS FOR NOT MAKING A DEAL WITH THE GARCIA AT THIS POINT".
We did not pursue this litigation, but it was put upon us by a past Board. We did not want any of the
problems with the lawsuits. It is not our idea of fun to spend $50,000.00. The same violations were
already on the Ranch several time over.
The other multi-residences have the same facilities as ours, and also have permanent
relatives living in them as we do (Robert's sister only spent five months on the Ranch last year,
less than most "snow birds"). The point that the other properties with so called "guest houses",
the designation which is not in the CC&R's and has been adopted by previous boards does
not give it credence. The statement the the second building is larger than the original log
home is a falsehood, and in fact is only 1,200 square feet in size.
According to the CC&R's, landowners can have as many as four rental units, which are full size
residences and not necessarily all under one roof as some boards have decided is the
requirement (not spelled out in the CC&R's).
The lawsuit states that it applies "only to our property" and any other violations must be
addressed separately. Therefore, no matter the outcome of a trial, the Board will be required
to sue all the other violations on an individual basis, running into hundreds of thousands of dollars.
Those that advocate litigation, do not seem to grasp the consequences. To deny the fact that
previous Boards were not aware of the residence violations were either in denial or were hiding
behind the concept of "complaint driven" which is not found anywhere in the CC&R's,
but in fact, requires the Boards to actively pursue violations and correct them.
In reference to modular homes or bringing structures onto the Ranch is totally wrong.
When a Board approved a "Deltec", which is transported on a truck in twelve sections with doors and
windows attached and assembled as a Manufactured Home which comes in two sections, neither of which
can be moved, once they are assembled.
If the statement that the Board has "no authority to adopt architectural standards", why is there
an architectural committee to which land owners must submit their plans to. Why must the
Construction Industries of New Mexico require an approval stamp from the Board in order to issue
a building permit. This is all pure nonsense.
If litigation continues, and the suit goes against the Ranch, some would say to go back to the Appellate
Court, continuing a long chain of events which will never end. Because the Garcia case is only the tip
of the iceberg and only concerns the Garcia property. Each and every violation which has a manufactured
or so called "guest house" will have to be pursued in a court of law.
We all agree that the CC&R's must be corrected, but rather than attempt to change them totally,
a modification to the language as they are written may be the answer. No where is it written that
the language cannot be changed so that interpretation is not required.
--Robert and Jo Garcia
TRLA WINS REMAND IN APPEALS COURT
On December 29, 2005, the New Mexico Court of Appeals gave a boost to TRLA in the Garcia case, reversing the lower court summary judgment against TRLA and remanding the case back to the lower court for further proceedings. The higher court ruled that factual questions must be answered by the lower court, namely: do the covenants (CC and R’s) apply to the Garcias, and is the Garcia’s move of a second and manufactured home onto their lot legal?
This is great news for TRLA. It means that after spending tens of thousands of dollars on trying to get a higher court ruling on key legal issues affecting the ranch, success may be near. In order to reap those benefits, of course, we must pursue the case to an end in the court system. We strongly encourage the TRLA Board of Directors to continue the litigation to its conclusion, and avoid any temptation to reach agreement with the Garcias.
We hasten to point out the obvious—if we were to settle out of court now we would lose the value of all the investment we have made to date in the case to finally resolve our legal issues, and we would signal to the world that modular and multiple homes are allowed in Timberlake. If we drop our support for the single family residence requirement, there will be no CC and R basis for any limit on the number of homes on a lot.
A settlement would be disastrous for TRLA and the board. TRLA would suffer because the increased activity by speculators increases the probability that modular and multiple homes will proliferate throughout the ranch. The board would suffer because of the outcry by landowners who expect the board to protect the value of their property by enforcing the CC and R’s, especially these two requirements that have been so contentious over the years. It would also be especially galling, as the board would be folding on these requirements despite an appeals court ruling that supports us in moving forward toward testing them (snatching defeat from the jaws of victory).
Finally, we believe that settlement would be a bad fiscal decision, as the failure to answer legal questions definitively, and to allow modular and multiple homes, will probably result in a significantly increased amount of litigation because of weakened and unclear CC and R’s. We may save $15,000, but the resulting litigation will probably cost many times that (penny wise and pound foolish).
We congratulate the board on our win, and urge them to vigorously pursue the litigation to its conclusion. We also suggest that because a decision to reach a settlement would seriously impact all landowners, the board should get landowner input before any decision to settle is made. --Tim Amsden and Roger Irwin
REASONS
FOR NOT MAKING A DEAL WITH THE GARCIAS AT THIS POINT
Any agreement allowing the Garcias to keep both houses will allow the same violations to occur on the whole ranch, except perhaps Timberlake South. There is no basis for giving the Garcias a variance from the CC and R’s that makes them different from anyone else that wants to commit the same violations. There is no factor TRLA can use to differentiate them, except that they fought us in court. No matter what principle TRLA comes up with on which to base a variance, the truth is that the only reason the Garcias are allowed to violate the CC and R’s is that they were willing to pursue litigation. Therefore,
If TRLA reaches some kind of deal allowing the Garcias to keep both houses on their lot, it is:
1. Allowing multiple residences everywhere on the ranch, except perhaps Timberlake South. One could argue that a single guesthouse is not a second family residence but a natural outbuilding to a single-family residence, and therefore allowed by the CC and R’s. That is not the case we are dealing with here. This is a situation where co-owners of a lot have built two full-size residences on the same lot (we understand that the second house might even be larger than the house in which the Garcias reside). If that is allowed, there is no basis to say that three, four, or five people can’t all build full-size family residences on the same lot.
Also, because we have the same CC and R language on single-family residences everywhere on the ranch except Timberlake South, the decision by the board to allow the Garcias to have two family residences on the same lot will apply to most of the ranch.
We have often heard that there are already a number of guesthouses on the ranch, and for that reason TRLA cannot ban the second house on Garcia’s lot. That doesn’t hold water for three reasons. First, as stated above, the second home on the Garcia’s lot may be in a different category from a guesthouse—it is not a guest house but a full-sized family residence. Second, as the appellate judge indicated, other violations in the same category don’t necessarily condone this one. Third, as far as we are aware, all the guesthouses cited by those making the argument either don’t exist or haven’t been brought to the attention of the board for enforcement.
The process established for TRLA
enforcement is based on filed complaints, and we know of no outstanding complaint
filed with the board related to the existence of a guesthouse.
2. Allowing modular homes everywhere on the ranch, except perhaps Timberlake South. We are astounded that the Appellate Court stated that TRLA was basing their arguments about the unacceptability of modular homes on language in the CC and R’s related to trailers. Nowhere in our complaint do we base our action against the Garcias on anything other than the provision that excludes "moving structures onto the property."
Because, however, all the language is basically the same in all the CC and R’s except Timberlake South, the decision by the board to allow the Garcias to have a modular home will apply to most of the ranch, and there will be no restrictions on the appearance or quality of the modular homes that begin to appear.
We might reach agreement that the Garcias have to alter the exterior appearance of their home, but the next people are not subject to any such requirement. According to a legal opinion obtained and acted upon by a previous Board, we have no authority to put such requirements in place—the board has no authority to adopt architectural standards.
It is true that there are two other modular homes in Timberlake. They received variances from the board to remain because they came on the ranch during a time when a former board ruled they were legal. If we had tried to require their removal, the equity arguments against us would have been overwhelming.
During most of the history of the ranch, boards have held that, based on language in the CC and R’s that bars moving structures onto a lot, modular homes are not allowed in Timberlake Ranch.
An earlier board (1995) said that modular homes were allowed, but based on legal advice, boards thereafter returned to the principle that moving structures onto lots, and therefore modular homes, was barred. Because the two modular homes had come into Timberlake during the time the board held that they were legal, a subsequent board felt that it would be impossible to force their removal.
3. Undermining the validity of all the CC and R’s in at least a portion of the ranch, and to some extent on the entire ranch. We will have failed to follow-up on the reversal of the appellate court, thereby indicating that we either do not believe in the validity of the CC and R’s, or that they are not important enough to defend in court. We will have sent a message to the world that if you are willing to litigate, we will back down. We wouldn’t want to be on the board when the next decision is made to file a lawsuit to stop a violation—a junkyard, for instance. And these things will happen, once it becomes clear that the board will allow violations rather than enforce them through the courts.
4. Throwing away all the money we have spent to get readings from the judicial system on if, how, and where the CC and R’s are flawed. We have held all along that we need a definitive statement of if, how, and where the CC and R’s are flawed, and we will get one if we hang in there. We need to know if there are fundamental problems with the CC and R’s, exactly what they are, and exactly what portions of the ranch are affected, so we can correct them. We also need formal rulings on whether second homes are banned, and whether modular homes are banned. We won’t get these things if we fail to pursue this lawsuit.
We are close to resolution of these matters. We are already getting signals from the appellate court that could help, if we continue the process. The court’s decision hints, for instance, that the basic filing and name problems with the CC and R’s that are at issue in this case only exist on a portion of the ranch.
If we hadn’t pursued the Garcia case to this point, we would still believe we had to get the CC and R’s re-adopted throughout the entire ranch. Now we have a chance to get a ruling that we only have to work on the CC and R’s on a small portion of the ranch. Let’s not throw that away.
5. Throwing away a probable ruling that the Garcias are subject to the CC and R’s. The appellate court has hinted that whether or not the filing of the CC and R’s were proper, the Garcias are subject to them because they had notice of the covenants, and therefore they are subject to them as equitable servitudes. The court states and repeats as relevant facts that the Garcias personally received copies of the covenants on more than one occasion. If we drop the case now, those hints remain just that—they will never become rulings.
6. Throwing away a probable ruling that, whether or not the CC and R’s have been properly filed in the Garcia’s area, many (maybe most) people in the area are subject to them. If we get the ruling laid out in item 5 above, it would allow us to enforce the CC and R’s in the Garcia’s area against landowners who received copies of the C C and R’s when they purchased their land, while we correct the procedural flaws.
Final Thoughts
After all we have spent to this point to get legal resolution of these issues, it would be terrible to quit now, just as we approach finality. It would also be terrible because it would significantly weaken all the CC and R’s throughout the entire ranch.
TRLA should pursue this litigation to completion, including any necessary appeal of the next decision of the lower court. It would be ironic if, after this fairly positive ruling by the appellate court, we allowed the Garcias to continue their violations. We think that is called snatching defeat from the jaws of victory.
We offer all this without criticism of the board. We know they want the best for the ranch, and we realize these matters are highly complicated. But this is a crucial decision at a crucial time, when construction is accelerating rapidly. This is TRLA’s chance to either move the ranch into a clearer future by obtaining final judicial resolution (we are so close), or to save a few dollars but cast a pall of weakness and confusion on the future of the ranch. -- Tim Amsden and Roger Irwin