Judge rules against Enchanted Hills Community Association

ROCKY FORK LAKE – With Judge Steven P. Beathard presiding, the Highland County Common Pleas Court has ruled in favor of several plaintiffs in their recent litigation against the Enchanted Hills Community Association at Rocky Fork Lake.

As reported by The Highland County Press last year, 14 residents of the Enchanted Hills Community Association filed a civil suit in Highland County Common Pleas Court against the subdivision, regarding the collection and use of membership dues.

The 14 plaintiffs – Judy and James Keltz, Donald and Rhonda Brandenburg, Curtis and Anita Brewer, David Clark, George and Jean Geiger, Janet Lederer, Herbert Owens, Donald and Marjorie Ray, and Willis Grove Inc. – were represented by Hillsboro attorney Lee Koogler.

The suit was filed against the Enchanted Hills Association and Margaret Brunner, the association’s statutory agent.

The court ruled that plaintiffs were entitled to a judgment against the defendant in the amount each has paid in excess of the annual payment of $25 for an initial lot and $5 for each subsequent lot from the year referenced in each claim.

The court determined this amount as follows for these plaintiffs:

A. James and Judy Keltz – $300;

B. George Geiger – $90;

C. Curtis Brewer – $1,545; and,

D. Janet Lederer – $460.

"No testimony was adduced as to the claims of the remaining plaintiffs and no judgment is granted as to each of them," Judge Beathard said.

The judge further stated that "unless and until the appropriate percentage of lot owners of record amend the declaration, annual dues and assessments remain at $25 for the first lot and $5 for each additional lot."

The Enchanted Hills Community Association is a "planned community" and falls within the purview of Chapter 5312 of the Ohio Revised Code, the court said.

The board may not increase any assessment for common expenses – when the declaration limits the amount of such assessments – unless the owners amend the declaration as provided in ORC 5312.05(A) to allow the increased amount, the court said.

A written affirmation of at least 60 percent of the lot owners of record is necessary to amend the declaration.

When the association filed a "purported amendment" to the covenants and restrictions in November 2010, the amendment did not comply with the 60-percent requirement, the judge said. The "purported amendment" was reached by a majority of lot owners in attendance or represented by proxy at an Aug. 14, 2010 meeting.

Therefore, the court declares the document entitled "Amendments to the Covenants and Restrictions of Rocky Fork Point Subdivision and Enchanted Hills Subdivision," dated Nov. 4, 2010 and recorded in Vol. 770, Page 32 of the Highland County Official Record is "null and void and of no force or effect whatsoever."

In addition, the court ruled that the "claim of intervening defendant Betty Clark is determined pursuant to the term of the settlement agreement of May 11, 2010. No additional dues, fees, or assessments are due unless and until the 60-percent requirement is met as to any increase in dues and assessments."

As previously reported by this newspaper, in June 2010 a similar suit was settled in Highland County Common Pleas Court between the association and resident Betty Clark.

In that suit, an eight-point agreement was outlined, which stated the organization’s bylaws, that lot owner dues shall be $50 for the first lot owned and $10 for each additional lot owned “commencing in calendar year 2010 and thereafter. No lot owner shall be charged any additional assessment, fees or dues in part. No future increase in the lot assessments, fees or dues shall occur unless a minimum of 60 percent of the lot owners sign a written authorization and consent to the same.”

Judge Beathard concluded in his Aug. 14 ruling that "It would be advantageous for those interested in the continued preservation of the association to lobby the lot owners to approve an amendment to the declaration that will ensure its viability and still preserve the owners' rights to due process."