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Special Board of Directors Meeting

May 3, 2006

In Attendance:

Nelsen Witt, President                                           Division 1

Connie Abercrombie, Corporate Secretary            Division 4

Mary Gilbert, Director                                            Division 4

Bill Stephenson, Director                                        Division 5

Sandie Eckerson, Secretary-Treasurer

Directors Absent:

Kevin MacPhee, Vice President                              Division 7

Don Butler, Director                                               Division 2

Norman Fernandes, Director                                   Division 6

Roy Taylor, Director                                               Division 1

President Witt called the meeting to order at 1:05 PM and read from the HOA Handbook, Chapter 10, page 1, "A quorum is the number of members who must be present in order for the association to transact business. Quorum requirements vary between 30% and majority of members of 50% are common forms of requirements. A quorum usually may be established by the actual presence of a member or by a valid executed proxy of the number held by another who is present at the meeting. A quorum must be present before the meeting is valid and voting requirements must be strictly enforced. The PCA and OCA provided unless the association by-laws provide otherwise a quorum for any meeting of an association shall consist of the number of persons who are entitled to cast 20% of the votes and who are present in person or by proxy at the beginning of the meeting." Rosanna Creighton, Division 7, asked what reference they use to state that as law. What law? What ORS what? Mary Gilbert argued that this is legal. President Witt said this is from the same book that Don Butler said complies and he recommended we buy a copy of this book for all Board members. Rosanna reminded the Board that they voted down that purchase of the book. Connie Abercrombie said yes because of the cost and because some Board members never even picked up their Roberts Rules of Order books. Jane Hamblet, Division 4, said if people won't read their C&Rs who will sit around and read that handbook. President Witt stated that a quorum had been established with 5 Board members concurring. A poll was taken for attendance, Mary Gilbert, Division 4, Abercrombie Division 4, Bill Stephenson Division 5, Nelsen Witt Division 1, and by proxy, Roy Taylor Division 1. Members asked to see Roy Taylor's proxy and it was passed around for viewing. President Witt wanted to make perfectly clear that he had personally polled and notified each of the Board members by email that this meeting was proposed. It was a special meeting not an emergency meeting. 5 concurred for the meeting, 2-3 responded to ask what the meeting was about. President Witt also stated that Connie Abercrombie, as Corporate Secretary whose responsibility it is to personally notify each Board member, did so. Kevin MacPhee was excused. Rosanna Creighton, Division 4, asked if the signature was official, was it on record in the office. President Witt assured her the signature was official and witnessed by the Secretary-Treasurer. Rosanna asked if Roy Taylor requested a leave of absence and then signed proxy for during his absence. President Witt said yes. Mary Gilbert said that although the Special Meeting was called to discuss the Serett matter and the Hunt matter, there was some unfinished business from the executive session that needed to be cleaned up. She felt it should not be left for the new Board to deal with. Mary said that the Board needed to report back on the decisions that were made at the Executive session on April 15, 2006. This was a housekeeping issue. She said basically the meeting never ended, it continued on until now. The meeting was never adjourned.

Hunt home at 1801 NW Marlin St.

Connie Abercrombie stated that everything started with the letter from the Planning Committee signed by the committee members. Connie read from the letter "Accordingly, installation of the home and any further construction will proceed at your own risk and the Beach Club reserves the right to pursue all available remedies including removal of the sand imported, removal of the concrete slab and removal of the home, if installed." Connie said that is when they got the letter from Mr. Hunt and he stated that he talked to Mr. Fernandes on April 18 and Mr. Fernandes expressed that he had turned this matter over to the Board for a decision. Ray Hunt believed that his home at 1801 NW Marlin St. will not exceed the 15 feet. He asked the Board to review this matter as soon as possible. Connie said she had gone to the hardware store where Mr. Hunt asked her if the Board had made a decision. That was when she learned that the Board was asked to make a decision. Mary Gilbert asked if that was before the April 15 meeting. Connie said the letter was date April 18. The original plans were approved by the Planning Committee on March 15, 2006 and then on April 3, 5 truck loads of sand was brought in to the lot, spread and compacted to below the original grade monument. This is what prompted the appeal to the Board. Mary Gilbert said the Planning Committee letter stated that this home would be substantially above the 15 foot limit, without a granted variance. She looked at what Norman Fernandes passed out at the executive session on April 15 and it looked to her like it would be 8 inches above grade. Matthew Hunt explained that the average original grade was established which is 2 feet 2 inches below the pin on the road, add in 12 inches of dirt, plus 3 blocks totaling 24 inches and the house which is 12 foot 3 inches. It will be about 1 foot 1 inch above. Mike Schlosser spoke to the Board that he was the previous owner and a builder. He was interested in the rules being consistent for everyone. He said Ray Hunt did the right thing by bringing in the sand because of the standing water. Mike said there is no common sense on this average original grade and he would like to see it clarified. He said that as a builder he tries to do the right thing but then other people come in who don't know the rules and get away with different changes. Connie Abercrombie wanted to be sure that everyone there agreed that Norman Fernandes had turned this issue over to the Board. The Board members all agreed there was no question, including the letter from the Planning Committee to Matthew Hunt which said it was turned over to the Board. Connie felt the Planning Committee made a mistake by not asking for a current average original grade report, since the one the Hunts turned in was from 2003. Mary Gilbert pointed out that the rules were different for a manufactured home than a stick built home. Ray Hunt told the Board that he told the Planning Committee that they would be bringing in the sand. He said he was never told he could not do this. He felt that there should be a way to establish a different original grade if the lot is in standing water, it detracts from property value. Ray addressed the average original grade in that there should be a fairness for the lots in the low areas, at least the ones below the streets. They should be allowed to come up to the street for proper drainage. Mary Gilbert asked the builders present what they thought the remedy should be if they were in the same situation as the Hunts. She also asked if they would agree that the rules for manufactured homes are different than stick built, such as roof pitch, overhang, siding, 450 square feet more than a site built is required. We can not have different rules for different landowners. They should all be the same. Guidelines can not be more restrictive than the C&Rs. The builders present, Gary LeBrun and Mike Schlosser, maintained that they just want consistency when they come to the Planning Committee with their plans. Neil Hare said that he felt the real problem is the canal and the lack of drainage throughout the area. There is so much fill accumulated over the years in the canal. It needs to be cleaned out so there is drainage. Gary LeBrun said that is not the issue with Ray Hunts' property. It is rain water that hadn't had a place to go because the ground was saturated. Jack Whipple said that there is no place in the C&Rs where it says anything about putting fill on the lots. Also, the so called Guidelines have no restrictions on placing fill on a lot. Gary LeBrun pointed out that lot A could not put its drainage onto lot B. Matt Hunt said that could not happen because they are putting in a retaining wall which will drain the water towards the road. Mary Gilbert clarified that the Hunts appealed to the Board. Bill Stephenson said he had a copy of the letter from the Hunts asking the Board to do something. Matthew Hunt said he wrote a letter to the Board asking what he needed to do, if it's a height variance, he would pay it, if it was something else let him know and he would do it. He just wants the issue resolved so he can live here. Mary Gilbert asked him if he would be happy with a height variance and waiting the time it takes. Matt Hunt said he has waited almost that long as it is. Construction has been delayed 20 days already. He has been attending all the Planning Committee meetings and is frustrated. Bill Stephenson said there had been mistakes on both sides. The lot needed to be raised. They have followed all the rules and regulations except the height. It is not in an area where it will affect anyone's view, so consequently it was his personal believe to give Ray Hunt the go ahead to finish building as it stands with no other variances. It would do no good to wait the 20-30 days it just makes them go through a lot of problems. From this point on we need to reorganize and revamp the Guidelines, this will probably benefit everyone in the long run. Matthew Hunt said he sat in front of the Planning Committee for 1 ½ hours and never was there a clear description of the average original grade. He said his plans were passed and he was never told he could not do what he planned to do. Mary Gilbert asked if he told the committee he was bringing in sand and Matt answered yes he did. Mike Schlosser said this was the greatest example of what needed to be corrected. He felt that the average original grade should go by the wayside. We should take each lot individually according to the water table and give them their 15 foot where it makes sense. We want to have everything fair and consistent when we apply to build a new home. Ray Hunt agreed that the average original grade should be revised. When a lot is low and has water on it, the owner should be able to bring the lot up to street level and then start the average grade, and then it is out of the hole. Mary Gilbert said that the average grade was propagated by a prior Planning Commission. It needs to be cleaned up. The Guidelines are more restrictive than the C&Rs and that can not be. Gary LeBrun asked Mary if the current Guidelines are or are not enforceable. Mary said Guidelines can be enforceable if they are not more restrictive than the C&Rs. Jane Hamblet, Division 4, said around 1996, the Planning Committee at that time, made the rules for manufactured homes. She pointed out that only the Planning Committee can change things for building. Rules should be the same for manufactured homes as for stick built. The Planning Committee needs to make those changes. Mary Gilbert said that for the last 5 or 6 years the Board and the Planning Committee ran over people and their property rights. Rosanna Creighton, Division 7, read from the C&Rs "No dwelling here shall exceed a maximum height of 15 feet from the original grade without written approval from the Planning Committee." So does the Planning Committee have to give approval after you folks do whatever you are going to do? Connie Abercrombie said no, they had the right to do what they were supposed to do but they didn't do it. They turned it over to the Board. Rosanna said she thought Mr. Hunt turned it over to the Board. Bill Stephenson said Norman Fernandes turned it over to the Board. President Witt asked if anyone wanted to make a motion.

MS     

Mary Gilbert made a motion for the Board, now that the Board has considered this matter, move, since the Planning Committee did not move to allow these people to continue on with their building and obey all rules that you know about right now and if you have questions bring them before the Board. I think they have done everything they are legally required to do. Bill Stephenson seconded.

Connie Abercrombie said they are above the 15 foot height restriction. She also said she wouldn't call that a motion since it had 550 words to it. Mary said it doesn't matter, she was not even finished. Mary said she made the motion to allow the variance and waive the 20 day requirement so these people can proceed with their building. She was basing that on what she had heard in this meeting, on what these people presented already to the Board and unfortunately Norman refused to attend this meeting. She believed that it was up to the Board members remaining present that need to make this decision. Jane Hamblet, Division 4, asked if this decision was based a lot by lot decision. Mary agreed this was lot by lot for this particular instance only. Gary LeBrun, Division 3, asked if Mary realized she was going against the C&Rs as the Planning Committee has the power to give a height variance, not the Board. Mary said that is true, however it was presented to Planning Committee the request was because he said he would do whatever the Planning Committee asked him to do and the Planning Committee did not respond to him. The Planning Committee chairman brought this to the Board at the Executive session at the last regularly scheduled meeting and made it a Board matter and now that Norman is not here, I don't see what choice we have. The only other thing we could do is refer it back to the Planning Committee. These people have already missed 20 days and I feel that whatever violation may or may not have occurred was pretty minor considering that lot, considering all the things we have been told. I don't think there is another reasonable way to handle it. Unless you do, what would be your way to handle it? Bill Stephenson said that according to the C&Rs they are entitled, if they don't agree with the Planning Committee, to apply to the Board of Directors and they did that. Also, Norman wrote a letter to them that he had turned it over to the Board of Directors for a decision. The Board of Directors now had the power to handle that. Gary LeBrun, Division 3, said he did not know that Norman had given it to the Board. He was assured that yes that was the case. Mary Gilbert said she would provide copies of all of that so he would feel and understand the background of the whole thing. She did not feel that Gary had all the information. Mike Schlosser said he would like to know what the process is we will have to take from now on. We are frustrated with the average original grade concept. We need to make this fair for everyone. Bill Stephenson said we will follow the general plan of what we are doing now and look to making changes. Mary Gilbert told Mike to get this on the agenda and get makes changes. Mary Gilbert called for the question.

MSP

Connie Abercrombie amended the motion to read: the Board of Directors have reviewed the 1801 NW Marlin St matter and by majority vote they may finish their home and move in. Mary Gilbert agreed to accept Connie's amendment to her motion.

President Witt made the comment that the Planning Committee is appointed by the Board and work for the Board. They have an independent responsibility. The only mandatory committee that we have and they are given these responsibilities. The principle behind this is that they are responsible to the Board. If a person is not satisfied with the decisions that are made, they can appeal to the Board. Gary LeBrun, Division 3, said the law that is written in the Guidelines are on their side. President Witt said the Board of Directors is mandated and required to uphold the C&Rs. The vehicle that is the primary responsibility is the Planning Committee but when you run into a roadblock where nothing is getting done then you can apply to the Board. Generally the Board tries to work things out with the Planning Committee but we haven't been able to do that so far in this issue. Gary LeBrun said we need to get rid of the word "original" he thought we are too beholden to that word. Mary Gilbert agreed with Gary because in our original documents it does not say original grade, it says average grade. The secretary-treasurer said we did not have a second to the motion. The secretary-treasurer read the amended motion: "The Board of Directors have reviewed the 1801 NW Marlin St matter and by majority vote they may finish their home and move in." Bill Stephenson seconded the amended motion.

Yea vote:            Mary Gilbert 

Connie Abercrombie

                        Bill Stephenson

                        Roy Taylor by proxy through Nelsen Witt

Serett/Taylor

Mary Gilbert said this issue has snowballed since Norman Fernandes called Attorney Bartoldus and now we have a $1,000.00 attorney fee. In the timeline that Norman provided to us: "on June 15, 2006 the Planning Committee received a height variance request from Seretts showing the west setback at 12 ¼ feet. August 10 almost 2 months later they approved the Serett height variance at 22 feet above average grade and the notes says he didn't see the west setback changed to 10 feet. So what happened was the approval was given. To Mary's knowledge that is the correct setback according to the county and our own setback is 10 feet. Is that house at 10 feet now? The note continued with "Norman visiting the site and determined that the building was too far west by 4 feet. But that was after he said he didn't see the west setback at 10 feet on the approved plans. So where is that house sitting on the lot now? It looks like it is right in line with the houses to the south of it. Jack Whipple said the original location of the house on the property as shown in the plan was 4 feet closer to the road. But, the contractor said he would have to move it back further so Serett said fine. Jack assumed that the contractor got word from the county that the septic system which has to be out in front requires all of that room. He doesn't have room otherwise. Mary Gilbert said as she understood it the plans were approved with that 10 foot setback which is what it is supposed to be. The first request showed the setback at 12 ¼ feet so there is a 21/4 foot change but that is ok because the Planning Committee approved that. Jack Whipple said the Taylors' can not see to the south. Mary said now the problem is we have attorney fees incurred without the approval of the Board to the tune of $971.00 up to April 17. We are probably ok for that since we are under the budget. The concern is that the Board did not approve it. It has been almost a month since there is no work being done. Mary said the Seretts' have a claim against the Board and against the Board members personally. Norman has greatly exposed us all to a lawsuit; I am very concerned about that because he didn't follow proper procedure. That is why I read the letter from the prior attorney into the record at the last Board meeting. We can be sued and our homeowners insurance isn't going to cover it. Norman has no report for us on this, no new information. That concerns me as he is the head of the Planning Committee. Mary asked Sandie Eckerson if we had any information. Sandie said that the Seretts and the Taylors were still negotiating. Bill Stephenson asked about our attorney fees. Sandie said when Norman and the attorneys met at the Taylor home to discuss this issue; the Bayshore attorney fees were to be part of the negotiated agreement. Mary said Norman was not to make that decision. Bill Stephenson asked if the Board was in agreement that what made it a Board problem was the letter from the attorney on behalf of the Bayshore Directors. The Board agreed yes. Bill also said that Norman was to only get advice from the attorney as to what avenues were available to the Planning Committee.

MSP

Bill Stephenson made a motion to remove Norman Fernandes immediately from the Planning Committee. Mary Gilbert said at the last executive session she asked Norman to resign as chairman of the Planning Committee and he declined to do so. At this point Mary felt like Norman has thumbed his nose at the Board and the Board has the authority to remove anyone from the Planning Committee. Bill Stephenson said he asked Norman to resign either the Planning Committee chair or the Board of Directors, because Bill thought it was a conflict of interest to be serving on both at the same time. Mary said she was very worried about this. Her husband, as an attorney, said if Norman Fernandes didn't resign his position as chair of the Planning Committee then Mr. Gilbert wanted Mary to resign from the Board of Directors. Mary wanted to be clear about things. President Witt said they could not remove Norman Fernandes from the Board as he was elected by the members. Mary said we can not remove Norman as the chair of the Planning Committee; all we can do is remove from the Planning Committee. There are those, including Mary herself, that feel Norman has tried very hard, this is very difficult for her. But there is a term she was reluctant to use but she said Norman was a loose cannon. He has exposed the Board members personally and the membership at large. We don't know the Seretts or their attorney, we know the Hunts and the Hunts have the money to come in and sue the pants off of us. I do not want to be held responsible for these two matters other than to try to make them right. Bill Stephenson quoted the C&Rs that a member can serve two positions if the Board so desires and this part of the Board doesn't so desire. Connie Abercrombie thought they voted on this at the last meeting. Bill Stephenson said no, we did not. Norman was to go until the election meeting and then decide. But because he has consistently put us in jeopardy, I'm calling for the Board of Directors to remove him. Mary Gilbert seconded the motion.

Rosanna Creighton, Division 7, reminded the Board that a couple of Saturdays ago Norman asked for the chance to make his decision after the election. Bill Stephenson yes that was the case but these things have come up since. Rosanna said no these have been brewing. The Board had a consensus to allow Norman until the election to make his decision. Bill Stephenson said Norman was inconsistent and a loose cannon and has put the Board and the Association in jeopardy. Rosanna said remember that Norman is trying to resolve the Serett case and could be a lawsuit either way it goes. Being afraid of a lawsuit should not weigh you on what could or could not happen. Mary Gilbert agreed with Rosanna on that. She asked Bill what should happen if he (Bill) did something with good intentions and it went sour. Bill said the one thing Norman did was the letter from the attorney that said it was from the Board of Directors. If the letter had been from the Planning Committee there wouldn't be an issue. Rosanna asked President Witt did Norman not come to him for permission to go to the attorney. President Witt said yes to go for advice. Bill Stephenson said no, he did not have the Board's permission to utilize it. There were 3 members who were totally ignorant of the action. Rosanna said that happens a lot around here. Bill said it needs to be stopped. Rosanna advised that this is very severe position that you are taking, it's a very severe action, it's very heavy handed. You personally agreed, Bill, at the last Board meeting that he could make his decision after the election and now you are reneging on it. It would be the best way for this Board, especially where there are only four of you and there is a proxy floating around, to consider what you said last meeting when you had plenty of Board members present. Bill Stephenson said he would restate the motion but Mary said no, she didn't think he should have to. For the record the Board voted to remove Jack Whipple from the Planning Committee for what the Board considered egregious behavior. His behavior may have caused us to have a lawsuit so there really is no difference. Rosanna asked what happens to the Planning Committee with only two people on it. Bill Stephenson said we have volunteers who want to be on it. Connie Abercrombie said they are new to Bayshore and don't know anything about it. Mary said that didn't matter and there was another person wants to volunteer. Rosanna asked why these people are not on now. Mary said because they volunteered after the last meeting. Connie Abercrombie said lawyers are a big thing and no one should go to one without Board approval. Mary Gilbert said Norman risked the assets of Bayshore Beach Club. Inc. and the members without following protocol. That is the exact words out of the prior attorney's letter to the Board about how we can be sued and I read it into the record in the last meeting. If we don't follow the established procedures, it was right there. Rosanna suggested that Norman contacted the attorney to protect you from being sued. Mary said that as she understood it from Norman the Taylors had threatened to sue us. Mary asked Sandie what is before the Planning Committee. Sandie said a height variance and a couple of other smaller requests. Mary said she had personally told Norman that if he is short on committee members to call her and she would fill in but he has never called her. She called for the question.

Yea vote:            Mary Gilbert, regrettably

                        Connie Abercrombie

                        Bill Stephenson

                        Nelsen refrained from using Roy Taylor's proxy

President Witt said he felt bad for Norman because he tries. Mary Gilbert said that Sandie as office manager, should be directed to send Norman a letter. Sandie told the Board she wanted the wording provided to her. Mary said it needed to be simple and to the point because Norman knows the feelings. He was at the executive session with Connie, Mary and Nelsen present and he pretty much admitted he didn't that he do things quite right. He refused to step aside.

Executive Session of April 15, 2006

Mary Gilbert suggested that Sandie, as office manager, send a letter to Bartoldus to find out what is going on with the Seretts and Taylor. Bill Stephenson suggested we send a letter to Taylors that the Board will take no further action as long as the Seretts and the Taylors are in negotiations. Mary Gilbert said she told Norman he should not be discussing things that people have filed formal complaints outside of the Planning Committee. Norman had told her he didn't but because of an email that the Board members received Mary questioned who did talk about it. Mary suggested that this be continued through the Planning Committee and refer it back to them.

Bill Stephenson said we should send a letter to Bartoldus to leave the Serett/Taylor issue alone. Mary Gilbert said that the Board members who refused to show up for this meeting will be very unhappy but they had every opportunity to show up, they chose not to.

Connie Abercrombie made a motion to adjourn the Executive session from the April 15, 2006 regularly scheduled Board meeting to the next meeting of the Board which is today. Mary Gilbert made a motion to adjourn this meeting at 3: 05 pm.

Approved by the Board of Directors May 20, 2006

Sandie Eckerson, Secretary/Treasurer

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