[Durham INC] 751 South Protest Petition Lawsuit over HOA signature

[Melissa Rooney]

See the HS article below. I wonder who's funding this lawsuit against the 
Chancellor's Ridge Homeowner's Association for signing the protest petition 
against the 751 rezoning. I'm sure I could make a good guess.

I find it hard to believe that these 11 CR residents would come up with the 
thousands required and, even moreso, to sue themselves and their immediate 
neighbors over this (the cost could be well over $10,000 if our last suit 
regarding the watershed protest petition is any indication).

This thing has SLAPP lawsuit written all over it - we need NC state legislation 
protecting citizens against SLAPP lawsuits, like other states have.

Here's a good brief definition of a SLAPP lawsuit (which has weak if any legal 
justification and is intended purely to intimidate the plaintiff to withdraw 
from public participation with the threat of litigation and its associated high 
costs):

http://en.wikipedia.org/wiki/Strategic_lawsuit_against_public_participation

--Melissa (see article below)
__________________

Suit over 751 South protest petition vowed

Lawyer: 11 will sue their homeowners association for joining challenge to 
project

By Ray Gronberg

gronberg at heraldsun.com; 419-6648

DURHAM -- A lawyer representing 11 Chancellor's Ridge residents says they intend 
to make good on a July 1 threat to sue their homeowners association because it 
joined a formal protest petition against the controversial 751 South project.

But the lawyer, Amiel Rossabi, declined Thursday to say when they might actually 
file the complaint he's drafted.

It'll be given to court clerks "when my clients and I decide to do so," said 
Rossabi, a former president of the American Civil Liberties Union of North 
Carolina.

Rossabi had previously given Chancellor's Ridge Homeowners Association President 
John Gunter a July 9 deadline to remove his signature from the petition.

Had Gunter complied, the petition under traditional benchmarks wouldn't have 
spoken for enough land bordering the 167-acre project site to be valid. 


But because it stands, four County Commissioners instead of the usual three have 
to support the rezoning 751 South's developers need.

Rossabi's draft contends that Gunter and fellow members of the association board 
lacked "any authority or power" under the association's articles of 
incorporation, bylaws or start-up declaration to sign the petition.

It was vague about why, save to allege that board members hadn't notified fellow 
residents of the April 27 meeting where they decided to join the petition.

"You never have authority to act when you're outside the scope of your 
authority," Rossabi said. "They purported to have a meeting and did not properly 
notice that meeting. They purported to go into executive session and didn't 
properly do that. There's a way for a corporation to act, and they are a 
corporation."

Classic 'SLAPP' suit?

But a leading critic of 751 South, south Durham resident Steve Bocckino, said 
Thursday the threat is "a classic SLAPP suit."

He was referring to a so-called strategic lawsuit against public participation, 
a class of suits whose use some lawyers regard as an intimidation tactic.

The association owns Chancellor's Ridge's common property, including that on the 
neighborhood's west side, along N.C. 751 across the road from the project site.

Rossabi's clients are Katherine and Shane Kirk, Margaret and David Sauerwald, 
Vivian and Robert Lentchitsky, Kristin and Mark Avitabile, Beth and Maurice 
Perry, and Anthony Watson.

All live in single-family sections of Chancellor's Ridge that are at least half 
a mile away, across forests and other homes, from 751 South. 


Watson, the Kirks, the Sauerwalds and the Lentchitskys are neighbors or 
near-neighbors who live on Chancellor's Ridge's east side, close to Fayetteville 
Road.

The draft complaint contends all 11 would suffer "loss of enjoyment of their 
property and diminishment in value of their property" unless the association 
rescinds its support of the protest petition.

Avitabile has been a vocal proponent of 751 South, in various forums arguing 
that a promised school site and the potential tax base would benefit Durham and 
Chancellor's Ridge. 


Gunter on Thursday said association directors "haven't heard anything" further 
from Rossabi or his clients since receiving the threat letter. He added that 
he'd "sent them back a response saying we were not going to take our name off 
the petition."

Petition is second

The petition is the second the board has signed against 751 South. Last fall, 
before signing the first, it consulted officials at Community Association 
Services Inc., a firm the board employs to help manage the neighborhood.

Its vice president and general counsel, Ed Bedford, advised them that under 
their bylaws they could exercise any of the association's inherent powers that 
weren't specifically reserved for homeowners.

He also noted that the state statute authorizing the creation of associations 
like Chancellor's Ridge's gives them authority "to institute, defend or 
intervene in litigation or administrative proceedings on matters affecting the 
planned community," unless their articles of incorporation or set-up declaration 
say otherwise. 


Those documents for Chancellor's Ridge appear silent on that point, and 
Rossabi's draft complaint didn't highlight any language in them supplying an 
override.

"Some members of the community will disagree with nearly every decision the 
board may make," Bedford said in an e-mail to Gunter and his colleagues. "We 
are, however, confident that the board ha[s] the legal authority to make its 
decision and to register its opposition to the proposed rezoning."

Bedford's advice, having been offered in November, didn't touch on the notice 
issue. 


Advance notice needed

The Chancellor's Ridge bylaws require advance notice of board meetings, but also 
say "any action which may be taken at a meeting of the board of directors may be 
taken without a meeting if written consent to the action so taken is signed by 
all directors," before or after the fact.

County officials know about the quarrel. City/County Planning Director Steve 
Medlin said they regard it as "an issue between internal parties."

He also said County Attorney Lowell Siler researched at least one court case 
that may have had "bearing on issues here related to the homeowners 
association."

Medlin further noted that the state General Assembly on July 9 changed Durham 
County's benchmark for judging protest petitions. 


Project opponents speak for enough other landowners that the Chancellor's Ridge 
association's presence on the petition wouldn't be a make-or-break issue for the 
petition, assuming the new benchmark applies.

Rossabi on Thursday said he and his clients "are certain" board members "are not 
acting on behalf of their constituency."

But Gunter said while "there are maybe a few others" in the neighborhood beyond 
Rossabi's clients who disagree with the petition, there are "there are several 
times that multiple of people who do agree with us."

Shane Kirk is Gunter's immediate predecessor as association president. He lost 
his board seat last fall in the neighborhood's annual election.


Read more: The Herald-Sun - Suit over 751 South protest petition vowed 


      
-------------- next part --------------
HTML attachment scrubbed and removed