The reason a group of residents pleaded with legislators to
hold an HOA Town Hall early in April was that one of the few regulatory
measures the Colorado legislature has applied to HOAs (Home Owner Associations)
is that the property managers (community association managers, or CAMS) hired
to run them must be licensed, and that licensing law, sunsetting July 19, 2019,
was up for discussion and vote mid-April. State senators Nancy Todd and Rhonda
Fields and state representatives Mike Weissman and Janet Buckner not only
agreed to hold the HOA Town Hall on April 6, 2019, but assembled a panel of
experts for the event. Well over 100 residents attended, writing their questions
down on the 3×5 cards provided by the four legislators, who assured the
standing-room-only crowd that the cards would be kept and studied. “The
result,” said Weissman, “would be a document we will all share widely.”
Capacity Crowd: Over 100 HOA homeowners showed up for the April 6 HOA Town Hall at Heather Gardens. Most of their requests focused on: 1) more disclosure and transparency for costs such as home sale transfer fees; 2) a way to settle disputes between homeowners and their HOAs that does not involve going to court; and 3) legislative support for the above. Many expressed disbelief that solutions to these problems could be so difficult.
The panelists — attorneys Suzanne Leff and Brian Matise;
Jefferey Riester, from the state HOA office; realtor Jim Smith and homeowner
advocate Stan Hrincevich — barely made a dent in the pile of cards, most of
which voiced concern about, as a longtime Denver realtor put it, “moral and ethical
transgressions” by the very entities supposedly there to support homeowners.
When one homeowner complained that her management company refused to give her
the financial records she’d requested — and Leff, a partner at Winzenburg,
Leff, Purvis & Payne, assured the woman she has a “perfect right under the
law to those records” and suggested something the woman had already done (put
the request in writing) the audience groaned in unison.
‘I know, I know,” empathized Leff. “But I urge you to use
those avenues … when communities work well it is wonderful. I want communities
to work!”
Discussion: Senator Nancy Todd and homeowner advocate Stan Hrincevich discuss the possibility of putting enforcement capabilities into the state HOA office.
If a partner in a law firm that “practices community
association law on a daily basis” wants HOA communities to work — if
legislators, as they asserted, want HOAs to work better for homeowners — and if
homeowners desperately want their communities to work — then what is the
problem?
Up To You
One step in the direction of making HOA communities work
better was the establishment, in 2011, of the Colorado HOA Information &
Resource Center, under the Department of Regulatory Agencies (DORA). This
office was originally conceived as an ombudsman, or advocate for homeowners.
Now, explained Riester, Director of Legislative Affairs for that office, “we
provide information, tell homeowners what rights they have under the law,
accept complaints and compile those complaints in a report that goes to the
General Assembly.”
“When we file a complaint with your office, it doesn’t go
anywhere,” said an older gentleman.
“At this time,” Riester said, “there are no bills that would
increase the teeth of this office to enforce complaints.”
“Short of filing suit, where can homeowners go?” asked the
gentleman.
“We don’t provide legal advice,” Reister said. “Just: these
are the facts, now it’s up to you to do what you have to do.
“Our department is currently up for sunset review,” he
added. “So please, if you think the office should have more teeth, give input.”
Hrincevich, who founded Colorado HOA Forum five years ago to
“improve HOA governance through legislative reform,” took the mic.
“Here is what you’re not being told,” he began.
Bunk
“When the HOA office was created, the law provided for that
office to investigate complaints,” Hrincevich said. “Right before the law was
complete, that was taken out.
Colorado HOA: Five years ago, Stan Hrincevich founded a homeowner advocacy group, Colorado HOA Forum, whose membership consists mostly of homeowners from Colorado’s HOAs but includes homeowners from eight other states.
“Then in 2013 the CO legislature directed a study of HOAs in
Colorado. The [resultant] study recommended that the HOA Office install out of
court dispute resolution process for homeowners.”
“You have to be very careful with alternate dispute
resolution,” interjected Matise, whose practice at BurgSimpson includes general
counsel for homeowner associations. “It would be expensive.”
“That is bunk,” Hrincevich said. “It’s bunk to say it would
cost money or be too hard. All the groundwork has been laid. Don’t need a
committee. Don’t need any further studies. We keep riding politicians to do
what the 2013 study recommended. But they ignore us.”
Profit Center
The discussion touched on various subjects like street
jurisdiction (HOAs or city?) and disabled parking spots (how to get one), to
which the panel had various, legalese-laden answers, but when the subject of
Transfer Fees arose, there was no ambiguity. Panelists and residents agreed
that the fees management companies charge for an HOA home sale were excessive
and unjustified. Jim Smith, who has penned several Denver Post columns about
“predatory transfer fees” said, “It’s nothing but a profit center for these
companies.”
“When I was about to close,” said former HOA homeowner Nancy
Markow, “I needed a status letter (showing dues currency) which I printed out
myself. But they charged $150, then charged for that letter to go through
something called Association Online, then through a company called Homeline for
an additional….”
In the end, Markow paid almost $1,000 in transfer fees.
Depending On Legislation
The discussion kept circling back to the CAM Licensing law.
The four legislators said they were in favor of continuing licensing. Buck
Bailey, a property manager, thought the current way CAMs have been licensed
wasn’t working. Weissman said, “CAM is a profession that can control your
property and your money.
“That’s why we want HB 1212 to pass,” said Weissman.
A realtor observed how much responsibility lies on the
shoulders of the HOA board, who have to negotiate contracts with the management
company, a “problem,” she said, because these volunteer homeowners “do not know
how to read a contract or have any idea of contract vocabulary.”
“These boards are running roughshod over homeowners,” said
Teri Chavez.
“Board members do just what they want … because they can,”
expostulated Candice Compton.
Panelists, acknowledging the ultimate power of HOA boards,
advised a “can’t lick ’em, join ’em” approach.
“Become more engaged,” said Matise.
“If you don’t like what’s going on,” said Weissman, “get on
the board and change it up.”
Homeowner Judy McGree Carrington protested. “You are looking
at this from a privileged perspective,” she said. “The neighborhood I’m in is
filled with working class people. They don’t have time to attend HOA meetings.
They’re coming in from work, making dinner. When they do go, they’re shouted
down.
“This is why,” emphasized Carrington, “we are depending on
legislation. Because you can’t legislate morality. But you can legislate
behavior.”
Challenge
“Before we leave,” said Hrincevich, “I would like each of
the legislators to say they’ll support a bill for out of court dispute
resolution. Without that, you can forget all about your governing documents,
your state law, because there is simply no enforcement.”
Weissman finally broke the silence. “I am not willing to
take away anyone’s right to go to court.”
Weissman was assured court would always be an option.
Buckner said, “I don’t know what the final bill will look
like so I really can’t say.”
Fields said, “I don’t think I understand the subject enough
to give you an answer,” Todd finally said, “[Homeowners] have to be protected.
We’ll figure out something,” and the room burst into applause.
“This is my 15th year as a legislator,” exclaimed Todd, who
is retiring, “and I just hope …, I never hear the word HOA again!”
Mystery
“HOAs are supposed to run on democracy,” said Teri Chavez,
“but homeowners develop apathy because it doesn’t work out that way.”
“The rampant abuse of HOA boards and management companies
will not end anytime soon if we are to depend on legislation,” said the
realtor.
The legislators, on the other hand, voiced approval of what
Fields called “a rich, thoughtful and constructive town hall.”
“I was shocked and disappointed that the legislators
wouldn’t commit to anything being asked of them, however reasonable,” said
Smith.
Hrincevich called the event “ornamental,” adding,
“Legislators know these issues. Why they don’t do anything … is a mystery. “
Many have said that the reason legislators do not respond to
homeowners’ needs is the presence of a powerful national lobby, the Community
Association Institute (CAI), which represents the interests of management
companies and HOA attorneys and other vendors benefiting from the HOA industry.
(CAI’s membership is only 2% homeowners.)
One week after the HOA Town Hall, Hrincevich viewed a letter
national CAI sent to its Colorado membership: that read in part, “We need you
to email or call members of the Finance Committee and let them know you support
HB 1212.” The letter explained how the bill had been “preamended” and “is the
version we support.” The letter promised, “Bonus points if you can testify!”
“All our recommended changes were ignored,” Hrincevich said,
“resulting in an ineffective licensing program. But CAI and special interests
were able to preamend this bill. In other words, the industry that is to be
regulated has successfully influenced the sponsors of this bill to include
their interests. Is this the way government is supposed to work for the
people?”
Corrupt Bidding For Convention Center Expansion Alleged; City Auditor Now Scrutinizing On-Call Construction Contracts
by Glen Richardson
Denver’s reputation as one of the Best Places to Live —
Ranked #1 by US News & World Report in 2016 — has been dealt another blow.
Outdoor activities, proximity to the mountains, art, craft beers and marijuana
that draws visitors to our city and distinguishes it from its metropolitan
colleagues has been compromised by the Convention Center expansion scandal.
The scandal uncovered last November amounts to dereliction
of duty by the City’s Public Works division delivering the services that help
define the quality of life in Denver. Public Works said that it discover-ed the
bidding process to pick a contractor for the project had been interfered with.
Reportedly there was an improper release of city documents, improper
discussions about the process and even altering of approved plans. The city
claimed two companies, Trammell Crow and Mortenson, tainted the bidding. In
response the companies retorted: “If Denver was truly unaware of Trammell
Crow’s conduct, it was the City’s lapse in oversight that created the
situation.”
The City’s Public Works is responsible for the design and
construction management of streets, bridges and public buildings plus
transportation through its offices of parking management, transportation
planning and operations.
On-Call Audit
Since then a newly completed examination and audit of Public
Works by City Auditor Timothy M. O’Brien, CPA, reveals the branch needs to
improve contract competitiveness and enforce policies during the bidding
process while working on some on-call contracts. “It’s in the best interest of
the taxpayers to keep a close eye on the new construction projects going on
with all the new bond money,” Auditor O’Brien explains. “I decided it was
important to start auditing on-call construction contracts in a way we hadn’t
before, to make sure we’re getting what we pay for and that we’re using a truly
competitive process.”
Unconventional Contract: Apparent misconduct in the bidding process for expansion at the Colorado Convention Center has Denver Public Works under scrutiny. Denver has reopened bidding and it is unknown whether pre-booked events will be affected by construction delays.
The Auditor’s Office worked with CliftonLarsonAllen LLP to
complete a third-party examination with limited scope of Halcyon Construction’s
on-call contract with Public Works. Halcyon had an agreement with Public Works
for up to $3 million to cover work between May 1, 2015, and April 30, 2018.
According to the examination, Public Works should expand its pool of
contractors to allow for a more competitive environment and for more
opportunities for other contractors to be considered for work. Public Works
should also make sure to follow the requirements of its mini-bid process, which
was not used at all on some projects.
The examination also found significant increases in project
costs due to change orders from Halcyon. The company had a considerably higher
percentage of change orders than the other small business enterprise
contractors in the bidding pool. In some projects tested, the change order
amounts plus the original work order resulted in the total project cost being
higher than other contractors’ bids submitted during the mini-bid process.
Halcyon’s percentage of change orders through November 2018 was 27%, compared
to other contractor percentages of 3.5%, 8.3%, and 8.2%. Furthermore, for three
of the projects tested, the project managers could not locate any formal
documentation evidencing that inspections were performed during these projects
that could identify when performance was not in line with the work order.
Directional Disarray: Bidding scandal and political meddling has created chaos within the 1,300 employee Denver Public Works department. Leadership’s focus is on the politically motivated Mobility Action Plan rather than management of City’s building and street design and construction.
Ordinance Delayed
Problems with construction management by Denver Public Works
was first reported by District 10 City Councilman Wayne New last summer and
published in a front page August 2018 Chronicle article. A construction
management ordinance was drafted by New at that time and was finally announced
by Public Works on March 27, six months later. Implementation of the new Public
Works procedures will likely begin at an equally sluggish pace.
“There is no doubt now that the problems have resulted from
Public Works’ inability to require pre-permitting and pre-construction planning
and construction management agreements regarding area traffic flow, street
closure, parking meter management, defined offsite parking arrangements and
noise mitigation,” New said then.
Main Man: Director Eulois Cleckley is central figure in problem-plagued Denver Public Works department. He is the hand-picked protégé of Mayor Michael Hancock.
The City Councilman says now as he did six months earlier,
“it is my hope the ordinance will mitigate the trials and tribulations
businesses and residents have experienced in Cherry Creek and throughout the
City.”
Biking Boondoggle
The high-profile Executive Director of Public Works Eulois
Cleckley — the hand-picked protégé of Mayor Michael B. Hancock — has emerged as
a central figure in the growing glitches and uproar within the 1,300 employee
Public Works department. He was chosen to implement Hancock’s Mobility Action
Plan and thus take attention away from the City’s knotty high-density
developments. That job, department insiders say, he has been successfully
completing.
Hancock, Cleckley and Councilwoman Mary Beth Susman are now
proposing the creation of a new Department of Transportation &
Infrastructure. Unlike restructuring the department of Public Works, it will
likely require voter approval but would push a rumored “in-the-works $900
million bond issue.” Meanwhile the City’s 2019 budget includes $27 million for
transportation and mobility improvements including more than $7 million to
build more and more bicycle lanes.
Pedal Pushers: Politically motivated 2019 Denver budget includes $7 million to allow the Public Works department to keep building bicycle lanes on city streets.
Akin to the unmanaged developments being built in almost
every Denver neighborhood, new bike lanes are also clogging traffic and
destroying commerce. Bicycle lanes on 14th and 15th Streets in Denver have
stolen space from motorists and only made downtown traffic worse, particularly
in proximity to hotels and public attractions. Lanes on South Broadway that
cost roughly $13 million seem superfluous and have crushed business along the
corridor. Owner Ron Vicksman of LeGrue’s — a Broadway landmark for nearly a
century — attributed his decision to close after all those years was due to the
loss of parking spaces following installation of the bike lanes. Vehicle registration
fees, ownership taxes and gasoline excise taxes are big revenue raisers but
bicycles aren’t contributors. Critics thus argue they are nothing more than a
form of social engineering.
The sun is shining, the birds are chirping, and except for
the occasional “bomb cyclone,” it is finally springtime. Springtime means
outdoors to us Coloradans … skiing being the exception to that rule of course.
We hop on those bicycles, we tie on those jogging shoes and we welcome the sun
on our face and the wind in our hair. But before you plug in those headphones
and tune-out for your exercise therapy, a few reminders as you embrace spring.
Living in Denver is to live in a never-ending heart health
ad. A bicyclist or a jogger at every corner and in between every corner, a
steady stream of Denverites walking their dogs. As motorists in this community,
we know, or should know, to share the road with those on bicycle or foot.
Though there is nothing healthier than heading out to exercise this spring, the
reality is that the danger is real.
Foster Graham Milstein & Calisher, LLP represents
injured cyclists and pedestrians, the number of which has increased at an
alarming rate each year. The injuries that we see with these clients are
catastrophic. The simple truth is that a cyclist or a pedestrian is no match
for a car. According to the National Highway Traffic Safety Administration, in
2017 there were 5,977 pedestrians and 783 bicyclists killed in crashes with
motor vehicles in the United States. No doubt pedestrians and cyclists are
vulnerable on the road and the danger is increasing. For example, U.S. traffic
fatalities in 2003, pedestrians and bicyclists represented 12.6 percent of
total traffic fatalities, but in 2017 they accounted for 18.2 percent of
fatalities. Head injuries account for 75% of all deaths and permanent
disabilities in bike crashes. Before you say to yourself, “Wait, this is
Colorado. The roads are filled with fit, like-minded, protein bar eating Subaru
drivers … with their rescue dogs riding shotgun. Colorado drivers are
harmless.” Not true. In 2018, Colorado had the second highest rate of fatal
road rage crashes nationwide.
The good news? You can be safe and well … stay alive. Hands
down, the safest choice when you are the bicyclist or the pedestrian, is to
protect yourself. When you got your driver’s license in Colorado you entered
into a contract, with the state of Colorado, to follow the rules of the road.
Remember the Colorado Driver’s Manual? Much like motorists, bicyclists and
pedestrians must follow the rules of the road. Yep, Colorado has a manual for
that, too. Check out Colorado’s Bicycling Manual put out by the Colorado
Department of Transportation.
A few tips:
Distraction is not just a problem for motorists. Electronic
devices for bicyclists and pedestrians mean eyes (and ears) are off the road.
Never assume a driver sees you. In fact, the safest choice is to assume they do
not. According to the Center for Disease Control, every day nine people are
killed and more than 1,000 people are injured in crashes from distracted
driving in the U.S.
You are not above the law. Bicyclists and pedestrians must
obey traffic signs and signals. Stop at stop signs. Follow the “WALK” and
“BIKE” signals, look at the lights — obey. It is simple because the statistics
confirm that we get busy and we are not safe.
Stay in your lane. Pedestrians should use a sidewalk or path
when available and if one is not available, use the shoulder, facing traffic.
Use crosswalks when crossing the street; if a crosswalk is unavailable, find
the most well-lit spot on the road to cross and wait long enough for a gap in
traffic to make it safely across the street. Cyclists, look for the bike signs,
stay in your bike lanes and bike boxes. The majority of pedestrian fatalities
(73 percent) and bicyclist fatalities (58 percent) occur at non-intersections.
Lastly, though pedestrians have the ultimate yield status, i.e., all on the
road must yield to a pedestrian, why take the risk? The safest choice my fellow
pedestrians and cyclists, is to never assume. Never assume you have the
right-of-way and certainly never assume others are following the law.
These safety tips are just tidbits. Most of them are
straight up common sense. For the full education, take the time and read the
full rules of the road for pedestrians and cyclists from the Colorado Bicycling
Manual. If life and limb is not reason enough to pick up the manual, then
consider it from a financial perspective.
If you are injured as a cyclist or a pedestrian, you may be
able to recover for your injuries, damages and losses. If you are injured by
someone driving a car, you may be able to make a claim against the insurance
carrier for the vehicle that hit you, as well as any uninsured or underinsured
motorist coverage you may have with your own automobile insurance (remember to
maximize those insurance policies for the most coverage available. This
protects you if you hit someone or are a victim). If you are injured as a
pedestrian or cyclist by another cyclist, you may be able to recover from the
at-fault cyclist’s homeowner or rental policy. When it comes time to attempt to
recover in your claim with any insurer, whether or not you followed the rules
of the road as a pedestrian or a cyclist may reduce the amount of your recovery
or even completely prohibit your ability to recover. You may not realize you
are not following the law as a pedestrian or cyclist so take a quick moment to
learn the rules of the road.
As a final note, you probably know many drivers don’t drive
with auto insurance, or their policies are minimal. Protect yourself, check
your automobile and homeowner/rental insurance policies, talk to your agent,
and ensure you have adequate insurance coverage, especially uninsured/
underinsured motorist coverage.
Now, quit being lazy, get out there on your bicycle, put on
those jogging shoes and hit the pavement. It is simple, be smart and be safe.
#stayingalive.
Kari Jones Dulin is a partner at Foster Graham Milstein
& Calisher, LLP. Ms. Jones Dulin’s practice is exclusively devoted to
plaintiff personal injury work. Whether a client was injured in car crash,
injured by a dangerous product, injured from a dangerous condition on someone’s
property or from medical negligence, Ms. Jones Dulin represents those who have
been injured because someone broke the law.”
May is Women’s Health Month and it’s the perfect time for
women to explore new, powerful ways to live healthy and feel their best. Here
are four ways to celebrate this month and integrate a well-rounded approach to
your health and wellness routine.
Start getting regular check-ups. Whether you’re new to
exercise, making a comeback after a hiatus, or you’re a seasoned expert, it is
important to check in with your doctor to discuss your physical activity. At
the age of 34, I only recently discovered that women should be getting annual
physicals just like men! This means paying a visit to your internal medicine
practitioner, not just your OB/GYN. Take this opportunity to discuss your diet
and current fitness routine. Ask for advice on where you should ease up or what
more you might incorporate.
Try something new. People often get into a rut with their
exercise routines, which can cause fitness goals to stall. To prevent this,
it’s a good idea to mix things up. Perhaps you can run a marathon, but you’ve
never tried a stretching class to increase flexibility and help muscles
recover. Maybe cardio isn’t your favorite, but you do like to dance. In this
case, try dance workouts such as Zumba and Nia. Adding something new can
reenergize your workouts, and it can prevent overuse injuries, break through
weight-loss plateaus and build new muscles.
Lift weights — properly. Because of increased risk of
osteoporosis, women specifically are advised to incorporate weight lifting into
their exercise routines. This disease involves a loss of bone density, and it
affects approximately half of women over the age of 50. Osteopenia is the
midway point between having healthy bones and having osteoporosis, and it can
actually be reversed through proper nutrition and regular weight lifting.
A personal trainer is a qualified expert who can guide you
through a new or existing weight lifting program and help you get the most from
your strength training. What makes a personal trainer better than a video or
fitness app is that the trainer can see you. This means they can keep a close
eye on your technique and alignment to maximize your moves and help prevent
injury.
Remember nutrition and mental health. Finally, it’s easy to
think health and wellness is based solely on being active. But there are other
components to consider as well, and that includes what we eat and how we feel.
For example, at a recent doctor’s appointment, I was advised
to start incorporating more fats and protein into my morning meals. I often
reach for fruit or cereal to get me going in the morning, but I’m learning
that’s just not enough to carry me through my workouts. Because of my busy
lifestyle, I can’t afford the time to make (and clean up) a whole meal with
eggs and bacon. One quick conversation with a nutritionist later, and I’m now
equipped with several easy, high-protein make-in-advance breakfast recipes.
We need to also recognize that total wellness includes our
mental well-being. Physical exercise, along with meditation and prayer, can
improve mental health. Sometimes, however, more specialized methods might be
necessary. Take an honest look at how you’re thinking and feeling and take
steps to clear and recharge your spirit and mind.
Cate is the fitness coordinator at the Littleton Family
YMCA. She has worked for the Y for more than 10 years and in various
capacities, including group fitness and personal training. She joined the
Denver YMCA in 2017 after moving to the area from Memphis, TN.
